2019 PRE-WEEK SYLLABUS-
ARE THE RULES IN CIVIL ACTIONS
BASED BAR REVIEW GUIDE
IN
SPECIAL PROCEEDINGS
By Dean Gemy Lito L. Festin
PUP COLLEGE OF LAW
*(Taken from soon to be released
2020 Edition of Special Proceedings: A foresight to
the bar exam and the practice of Law)
___________________________________
RULE 72 - [BAR Q. 1996,1998,2008,2012]
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
1. DEFINE SPECIAL PROCEEDING.
It is an application to establish the status or
right of a party or a particular fact or any remedy
other than an ordinary suit in a court of justice.
2. DISTINGUISH CIVIL ACTION FROM SPECIAL
PROCEEDING.
1. A special proceeding under the same rule
provides that it is a remedy by which a party
seeks to establish a status, a right or a
particular fact.
Pursuant to Section 3, Rule 1 of the 1997
Rules of Civil Procedure, a civil action is one
by which a party sues another for the
enforcement or protection of a right, or the
prevention or redress of a wrong.
2. Unlike actions, a special proceeding is
generally commenced by application,
petition or special form of pleading as may
be provided for by the particular rule or law.
3. Unlike actions, in special proceedings, it
does not pray for affirmative relief for injury
arising from a party’s wrongful act or
omission nor state a cause of action that can
be enforced against any person.
3.
APPLICABLE IN SPECIAL PROCEEDINGS?
Yes, in the absence of special provisions,
the rules provided for in ordinary actions shall
be, as far as practicable, applicable in special
proceedings. (Section 2, Rule 72 of the Rules of
Court)
4. ALAN JOSEPH A. SHEKER v. ESTATE OF
ALICE O. SHEKER, VICTORIA S. MEDINA
(G.R. No. 157912, December 13, 2007)
DOCTRINE: Provisions of the Rules of Court
requiring a certification of non-forum
shopping for complaints and initiatory
pleadings, a written explanation for non-
personal service and filing, and the payment
of filing fees for money claims against an
estate would not in any way obstruct
probate proceedings, thus, they are
applicable to special proceedings such as
the settlement of the estate of a deceased
person as in the present case.
RULE 73- [BAR Q. 2003, 2005, 2011]
SETTLEMENT OF ESTATE OF DECEASED
PERSONS
1. WHICH COURT HAS JURISDICTION
OVER PROBATE PROCEEDING?
Pursuant to R.A. 7691, the question as to
which court shall exercise jurisdiction over
probate proceedings depends upon the gross
value of the estate of the decedent.
In Metro Manila, the Municipal Trial Court
has jurisdiction on the said proceeding if the
value of the estate does not exceed P400,000.00,
otherwise, the Regional Trial Court has
jurisdiction over the same.
Outside Metro Manila, Municipal Trial
Courts, Metropolitan Trial Courts and Municipal
Circuit Trial Courts have jurisdiction over
probate proceedings if the gross value of the
estate left by the decedent does not exceed
P300,000.00.
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2. VENUE IN THE SETTLEMENT OF
ESTATE PROCEEDING?
The residence of the decedent at the time of
his death is determinative of the venue of the
proceeding.
It is only where the decedent was a
nonresident of the Philippines at the time of his
death that venue lies in any province in which he
had estate.
3. WHAT IS THE NATURE OF THE
PROCEEDINGS OF SETTLEMENT OF
THE ESTATE?
The settlement of a decedent’s estate is a
proceeding in rem which is binding against the
whole world. All persons having interest in the
subject matter involved, whether they were
notified or not, are equally bound. (Philippine
Savings Bank v. Lantin, 124 SCRA 483)
4. QUIAZON V. BELEN, G.R. No. 189121,
July 31, 2013.
DOCTRINE: As thus defined, "residence," in the
context of venue provisions, means nothing
more than a person’s actual residence or place
of abode, provided he resides therein with
continuity and consistency.
RULE 74- [BAR Q. 2001, 2005, 2007, 2009]
SUMMARY SETTLEMENT OF ESTATES
1. IF A PERSON HAD NO KNOWLEDGE OR HAD
NOT PARTICIPATED IN THE
EXTRAJUDICIAL SETTLEMENT, IS HE
BOUND THEREBY BY REASON OF
CONSTRUCTIVE NOTICE OF
PUBLICATION?
No. The publication of the settlement does
not constitute constructive notice to the heirs
who had no knowledge or did not take part in it
because the same was notice after the fact of
execution.
RULE 75- [BAR Q. 2005, 2006, 2010, 2014]
PRODUCTION OF WILL
ALLOWANCE OF WILL NECESSARY
1. IS ALLOWANCE OF A WILL NECESSARY?
Yes, the allowance of a will is necessary.
Section 1 of Rule 75 is explicit, “No will shall
pass either real or personal estate unless it is
proved and allowed in the proper court.”
2. IS THE PROBATE OF A WILL MANDATORY?
Yes. The probate of a will is mandatory.
(Baluyot v. Panio, L-42088, 71 SCRA 86)
3. DOES A WILL HAVE FORCE AND EFFECT
EVEN IF NOT PROBATED?
No. Until admitted to probate, a will has no
effect and no right can be claimed thereunder.
(Pascual v. Court of Appeals, 409 SCRA 105)
4. MAY A PROBATE COURT PASS UPON THE
INTRINSIC VALIDITY OF A WILL?
No. In a special proceeding for the probate
of a will, the issue by and large is restricted to
the extrinsic validity of the will, i.e. whether the
testator, being of sound mind, freely executed
the will in accordance with the formalities
prescribed by law. As a rule, the question of
ownership is an extraneous matter which the
probate court cannot resolve with finality.
(Pastor Jr. v. CA, 122 SCRA 185)
5. IS A PROBATE COURT A COURT OF LIMITED
JURISDICTION?
Yes. A probate court is a court of limited
jurisdiction. As such, it may only determine and
rule upon issues that relate to settlement of the
estate of deceased person such as the
administration, liquidation and distribution of
the estate.
THE ROMAN CATHOLIC BISHOP OF
TUGUEGARAO, PETITIONER, VS.
FLORENTINA PRUDENCIO, ET. AL.
(GR. No. 187942, September 7, 2016, Jardeleza, J.)
DOCTRINE: In all execution of Extrajudicial
Settlement of the estate of the deceased, all
heirs of the deceased should have
participated. No extrajudicial settlement shall
be binding upon any person who has not
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 participated or had no notice thereof. As the
partition was a total nullity and did not affect
the excluded heirs, it was not correct for the
trial court to hold that their right to challenge
the partition had prescribed after two years
from its execution.
It is clear that Section 1 of Rule 74 does
not apply to the partition in question which was
null and void as far as the plaintiffs were
concerned. The rule covers only valid
partitions.
In this case, the partition was invalid
because it excluded six of the nine heirs who
were entitled to equal shares in the partitioned
property. Under the rule "no extrajudicial
settlement shall be binding upon any person
who has not participated therein or had no
notice thereof." As the partition was a total
nullity and did not affect the excluded heirs, it
was not correct for the trial court to hold that
their right to challenge the partition had
prescribed after two years from its execution.
*IS THE ORDINARY ACTION FOR PARTITION
INTENDED TO TAKE THE SPECIAL
PROCEEDING ON THE SETTLEMENT OF
ESTATE?
Yes, the ordinary action for partition
therefore is meant to take the place of the special
proceeding on the settlement of the estate. The
reason is that, if the deceased dies without
pending obligations, there is no necessity for the
appointment of an administrator to administer the
estate for the heirs and the creditors, much less,
the necessity to deprive the real owners of their
possession to which they are immediately entitled.
(Heirs of Ernesto Morales vs. Astrid Morales
Agustin, represented by her Attorney-In-Fact,
Edgardo Torres, G.R. No. 224849, June 06, 2018,
Reyes, Jr., J.)
RULE 76-[BAR Q.2011, 2012]
ALLOWANCE OR DISALLOWANCE OF WILL
1 WHO MAY PETITION?
a. Any executor, devisee, or legatee named
in a will, or
b. Any other person interested in the estate,
2. WHO IS A “PERSON INTERESTED IN THE
ESTATE”?
AMELIA QUIAZON V. MA. LOURDES BELEN
(G.R. No. 189121, July 31, 2013)
DOCTRINE: An “interested party”, in estate
proceedings, is one who would be benefited in
the estate, such as an heir, or one who has a
claim against the estate, such as a creditor. Also,
in estate proceedings, the phrase “next of kin”
refers to those whose relationship with the
decedent is such that they are entitled to share
in the estate as distributes.
RULE 86- [BAR Q. 2002, 2009, 2012]
CLAIMS AGAINST ESTATE
(BAR QUESTIONS: 1991, 2002, 2009, 2012, 2016)
1. WHAT IS THE SO-CALLED “STATUTE OF NON-
CLAIMS” PROVIDED UNDER SECTION 2 OF
RULE 86? (*MEMO)
It is the period fixed by for the filing of the claims
against the estate. The rule mandates certain
creditors of a deceased person to present their
claims for examination and allowance within a
specified period, the purpose thereof being to settle
the estate with dispatch, so that the residue may be
delivered to the persons entitled thereto without their
being afterwards called upon to respond in actions
for claims, which, under the ordinary statute of
limitations, have not yet prescribed. (Santos v.
Manarang, 27 Phil. 213)
2. AS PROVIDED UNDER SECTION 2 OF RULE 86,
WHAT IS THE PERIOD WITHIN WHICH TO FILE
THE CLAIM UNDER THE STATUTE OF NON-
CLAIMS? (*MEMO)
The range of the period specified in Section 2 is
intended to give the court the discretion to fix the
period for the filing of claims.
The probate court is permitted by the rule to set
the period as long as it is within the limitation
provided. It should not be less than six months nor
more than 12 months from the day of the first
publication of the notice thereof. Such period when
fixed by the probate court becomes mandatory.
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3. ENUMERATE THE TYPES OF CLAIM THAT MUST
BE FILED WITH THE PROBATE COURT UNDER
THE NOTICE. (*MEMO)
1) All money claims against the decedent arising
from contract, express or implied, whether the same
be due, not due, or contingent;
2) All claims for funeral expenses and expenses
for the last sickness of the decedent; and
3) Judgment for money against the decedent. The
judgment must be presented as a claim against the
estate, where the judgment debtor dies before levy
on execution of his properties.
4. IS PERSONAL NOTICE UNDER SEC. 4, RULE 76 OF
THE RULES OF COURT (NOTICE OF TIME AND
PLACE OF PROBATE PROCEEDINGS) A It is one by which, by its nature is necessarily
JURISDICTIONAL REQUIREMENT IN TESTATE OR
INTESTATE SETTLEMENT OF A DECEASED’S
ESTATE?
No, personal notice to the heirs is not a
jurisdictional requirement in the settlement of estate of
deceased persons. A testate or intestate settlement of a
deceased's estate is a proceeding in rem, such that the
publication under Section 3 of the same Rule vests the
court with jurisdiction over all persons who are interested
therein.
By such publication which constitutes notice to
the whole world, petitioners are deemed notified about the
intestate proceedings of their father’s estate even if they
did not receive any personal notice thereon. (Iona Leriou,
Eleptherios L. Longa, et. al. vs. Yohanna Frenesi S.
Longa, et. al. Respondents, G.R. No. 203923, October 8,
2018).
5. WHAT IS THE MEANING OF “MONEY CLAIMS”
THAT MUST BE FILED IN THE TESTATE OR
INTESTATE PROCEEDINGS?
Money claims are claims for money, debt or interest
thereon upon a liability contracted by the decedent before
his death. Claims contracted after his death cannot,
therefore, be presented with the exception of funeral
expenses and expenses incurred on the last sickness of
the decedent.
Section 5, Rule 86 of the Rules of Court expressly
allows the prosecution of money claims arising from a
contract against the estate of a deceased debtor.
(Stronghold Insurance Company, Inc. v. Republic-Asahi
Glass Corporation, G.R. No. 147561, June 22, 2006)
6. WHAT IS THE CONSEQUENCE IF THE CLAIMS ARE
NOT FILED WITHIN THE TIME LIMIT IN THE NOTICE?
If the said claims are not filed within the time limit in
the notice, they are barred forever from presenting them.
IS THERE AN EXCEPTION?
Yes, as expressly provided under Section 5 of Rule
86, these claims may be set forth as counterclaims in any
action that the executor or administrator may bring against
the claimants.
7. IN CASE OF CLAIMS WHICH ARE NOT YET DUE,
SHOULD THEY LIKEWISE BE FILED WITHIN THE TIME
LIMIT?
Yes, not only claims due, but also claims not due or
contingent should be filed, otherwise, they too are barred
forever.
8. WHAT IS A CONTINGENT CLAIM?
dependent upon an uncertain event for its existence and
claim, and its validity and enforceability depending upon
an uncertain event. (Gasket and Co. v. Tan Sit, 43 Phil.
810)
9. IS DEFICIENCY JUDGMENT A CONTINGENT
CLAIM?
Yes, deficiency judgment is a contingent claim and,
therefore, must be filed with the probate court where the
settlement of the estate of the deceased is pending, within
the period fixed for the filing of claims.
10. BAR Q.
Rule 86 -Claim against the estate;
Remedy
Chika sued Gringo, a Venezuelan, for a sum
of money. The Metropolitan Trial Court of Manila
(MeTC) rendered a decision ordering Gringo to pay
Chika P50,000.00 plus legal interest. During its
pendency of the appeal before the RTC, Gringo died
of acute hemorrhagic pancreatitis. Atty. Perfecto,
counsel of Gringo, filed a manifestation attaching the
death certificate of Gringo and informing the RTC that
he cannot substitute the heirs since Gringo did not
disclose any information on his family. As counsel for
Chika, what remedy can you recommend to your
client so the case can move forward and she can
eventually recover her money? Explain.
SUGGESTED ANSWER:
The remedy I can recommend to my client Chika
is to file a petition for settlement of the estate of Gringo
and for the appointment of an administrator. Chika as a
creditor is an interested person who can file the petition
for settlement of Gringo’s estate.
Once the administrator is appointed, I will move
that the administrator be substituted as the defendant.
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 I will also file my claim against Gringo as a
contingent claim in the probate proceedings pursuant to
Rule 86 of the Rules of Court.
11. BAR Q.
Cresencio sued Dioscoro for collection of a sum
of money. During the trial, but after the presentation of
plaintiff’s evidence, Dioscoro died. Atty. Cruz,
Dioscoro’s counsel, then filed a motion to dismiss the
action on the ground of his client’s death. The court
denied the motion to dismiss and, instead, directed
counsel to furnish the court with the names and
addresses of Dioscoro’s heirs and ordered that the
desig-nated administrator of Dioscoro’s estate be
substituted as representative party.
After trial, the court rendered judgment in favor of
Cresencio. When the decision had become final and
executory, Cresencio moved for the issuance of a writ
of execution against Dioscoro’s estate to enforce his
judgment claim. The court issued the writ of execution.
Was the court’s issuance of the writ of execution
proper? Explain.
SUGGESTED ANSWER:
The court’s issuance of the writ of execution was not
proper. Under Rule 3 of Section 20, a favorable judgment
in a contractual money claim shall be enforced in the
manner especially provided in the Rules for prosecuting
claims against the estate of a deceased person. Under
Rule 86 of the Rules of Court, a judgment for money
should be filed as a money claim with the probate court.
The Supreme Court has held that a money claim cannot
be enforced by a writ of execution but should instead be
filed as a money claim.
12. WHAT ARE THE THREE DISTINCT AND
ALTERNATIVE REMEDIES AVAILABLE TO A
MORTGAGE CREDITOR UPON THE DEATH OF
THE MORTGAGOR? (*MEMO)
The alternative remedies provided under this Rules
are the following:
1) To waive the security mortgage and claim the
entire debt from the estate as an ordinary claim. By filing
money claim against the estate he is deemed to have
abandoned the mortgage and there-after he cannot file a
foreclosure suit if he fails to recover his money claim
against the estate;
2) To foreclose the mortgage judicially and prove
any deficiency as an ordinary claim. The foreclosure suit
should be against the executor or administrator as party
defendant. In the event that a creditor fails to fully recover
his claim, he may obtain deficiency judgment and file it as
a claim against the estate in the manner provided by this
Rule;
3) To rely solely upon the mortgage and foreclose
the same at any time before it is barred by prescription
without right to claim for any deficiency. This mode
includes extrajudicial foreclosure of sale and its exercise
precludes one from recovery any balance of indebtedness
against the estate and frees the estate from further liability.
Thus, a creditor who elects to foreclose by
extrajudicial sale waives all his rights to recover against
the estate of the deceased debtor for any deficiency
remaining unpaid after the sale. It can be readily seen that
the decision in this case will impose a burden upon the
estates of deceased persons who have mortgaged real
property for the security of debts, without any
compensatory advantage. (PNB v. Hon. CA, Chua, G.R.
No. 121597, June 29, 2001)
14. AS A GENERAL RULE, A PROBATE COURT HAS
NO JURISDICTION TO ENTERTAIN A CLAIM IN
FAVOR OF THE ESTATE AGAINST A THIRD
PERSON AS THE SAME MUST BE THE SUBJECT
OF AN ORDINARY ACTION. CITE THE
EXCEPTION TO THIS RULE.
The exception to this Rule is provided under Section
10 of Rule 86. It authorizes the executor or administrator
to interpose any counterclaim in offset of a claim against
the estate. Said counterclaim is regarded as a compulsory
counterclaim as the failure to file the same shall bar the
claim forever.
RULE 88
PAYMENT OF THE DEBTS OF THE ESTATE
1. DOES THE PROBATE COURT HAVE THE
POWER TO ISSUE A WRIT OF EXECUTION TO
PAY CLAIMS?
As a general rule, a probate court cannot issue a writ
of execution. As held by the Supreme Court in Aldamiz v.
Judge of CFI of Mindoro, 85 Phil. 228, 233, a writ of
execution is not the proper procedure allowed by the Rules
of Court for the payment of debts and expenses of
administration.
The proper procedure is for the court to order the
sale of personal estate or the sale or mortgage of real
property of the deceased and all debts and expenses of
the administration should be paid out of the proceeds of
such sale or mortgage. The order for the sale or mortgage
should be issued upon motion of the administrator and
with the written notice to all the heirs, legatees and
devisees residing in the Philippines, according to Section
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3 of this Rule, and Section 2 of Rule 89. And when sale or
mortgage is to be made, the regulations contained in
Section 7 of Rule 89 should be complied with.
2. ARE THERE EXCEPTIONS?
Yes, under the following circumstances, the probate
court may issue writs of execution:
1. To satisfy the distributive shares of devisees,
legatees and heirs in possession of the
decedent’s assets;
2. To enforce payment of the expenses of
partition; and
3. To satisfy the costs when a person is cited for
examination in probate proceedings.
RULE 89
SALES, MORTGAGES, AND OTHER
ENCUMBRANCES
OF PROPERTY OF DECEDENT
1. ARE THE NOTICES UNDER SECTIONS 2, 4 AND 7
OF RULE 89 A MANDATORY REQUIREMENT TO
EFFECT THE AUTHORITY OF THE SALE OR
ENCUMBRANCE OF REAL PROPERTY?
Yes, failure to give notice to the heirs, devisees or
legatees would invalidate the authority granted by the
court.
Without compliance with Sections 2, 4, and 7 of Rule
89 of the Rules of Court, “the authority to sell, the sale itself
and the order approving it would be null and void ab initio.”
2.CITE SECTIONS 2, 4 AND 7 OF RULE 89 WHERE
NOTICES TO THE HEIRS, DEVISEES OR LEGATEES
ARE DEEMED MANDATORY.
The requirements of written notices under Rule
89 of the Rules of Court are mandatory and failure to
give notice to the heirs would invalidate the authority
granted by the intestate/probate court to mortgage or
sell estate assets.. The sections are as follows:
a) Section 2. When court may authorize
sale, mortgage, or other encumbrance of
realty to pay debts and legacies through
personalty not exhausted.
b) Section 4. When court may authorize
sale of estate as beneficial to interested
persons. Disposal of proceeds.
c) Section 7. Regulations for granting
authority to sell, mortgage, or otherwise
encumber estate.
RULE 90- [BAR Q. 2002, 2011]
DISTRIBUTION AND PARTITION
OF THE ESTATE
(BAR QUESTION: 2011)
1. UNDER SECTION 1 OF RULE 90, WHEN MUST
THE ORDER FOR DISTRIBUTION OF RESIDUE
BE MADE?
Rule 90, Section 1 of the Rules of Court provides
that, when the debts, funeral charges, and expenses of
administration, the allowance to the widow, and
inheritance tax, if any, chargeable to the estate in
accordance with law, have been paid, the court, on the
application of the executor or administrator, or of a person
interested in the estate, and after hearing upon notice,
shall assign the residue of the estate to the persons
entitled to the same, naming them and the proportions, or
parts, to which each is entitled, and such persons may
demand and recover their respective shares from the
executor or administrator, or any other person having the
same in his possession.
No distribution shall be allowed until the
payment of the obligations above mentioned
has been made or provided for, unless the
distributees, or any of them, give a bond, in a sum to
be fixed by the court, conditioned for the payment of
said obligations within such time as the court directs
(Ignacio vs. Reyes, et. al./ GR No. 213192, July 12, 2017,
Carpio, J.)
2. ARE HEIRS OF THE DECEDENT LIABLE TO
SETTLE TRANSMISSIBLE OBLIGATIONS, PRIOR TO
THE DISTRIBUTION OF THE ESTATE TO THEM?
Yes, heirs of the decedent are liable to settle his
transmissible obligations, prior to the distribution of the
latter’s estate to them, in accordance with Section 1, Rule
90 of the Rules of Court. Thus, “No distribution shall be
allowed until the payment of the obligations (debts,
funeral charges, and expenses of administration, the
allowance to the widow, and inheritance tax) has been
made or provided for, unless the distributees, or any of
them, give a bond, in a sum to be fixed by the court,
conditioned for the payment of said obligations within
such time as the court directs (Heirs of Leandro Natividad
and Juliana Natividad vs. Juana Mauricio Natividad and
Spouses Jean Natividad Cruz and Jerry Cruz/ G.R. No.
198434, February 29, 2016/ Peralta, J).
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3. BAR Q. [2011] Multiple Choice
As a rule, the estate shall not be distributed prior
to the payment of all charges to the estate. What will
justify advance distribution as an exception?
(A) The estate has sufficient residual assets and
the distributees file sufficient bond.
Xxx
4. DEFINE LIQUIDATION.
It is the determination of all assets of the estate and
payment of all debts and expenses.
5. UNDER SECTION 2 OF RULE 90, MAY THE COURT
HEAR AND DETERMINE QUESTIONS AS TO
ADVANCEMENT MADE BY THE DECEDENT?
Yes. Questions as to advancement made, or alleged
to have been made, by the deceased to any heir may be
heard and determined by the court having jurisdiction of
the estate proceedings; and the final order of the court
thereon shall be binding on the person raising the
questions and on the heir.
In Henry Teng vs. Laurence Ting, et. al./ G.R. No.
184237, September 21, 2016, Perez, J, the Court held
that in this case, in the guise of raising a legal issue,
petitioner urges the court a quo to resolve once again an
ownership issue. Section 2, Rule 90 of the Rules of Court
states that "questions as to advancement made, or
alleged to have been made, by the deceased to any heir
may be heard and determined by the court having
jurisdiction of the estate proceedings; and the final order
of the court thereon shall be binding on the person raising
the questions and on the heir." But the rule, as correctly
interpreted by respondent, presupposes a genuine issue
of advancement.
6. WHAT IS THE EFFECT OF A FINAL DECREE OF
DISTRIBUTION?
A final decree of distribution of the estate of a
deceased person vests the title to the land of the estate to
the distributees.
If the decree is erroneous, it should be corrected by
opportune appeal, for once it becomes final, its binding
effect is like any other judgment in rem, unless properly set
aside for lack of jurisdiction or fraud. Where the court has
validly issued a decree of distribution and the same has
become final, the validity or invalidity of the project of
partition becomes irrelevant. (Vda. de Kolayco v. Tengco,
207 SCRA 600)
7. WHEN DOES A PROBATE COURT LOSE
JURISDICTION OF AN ESTATE UNDER
ADMINISTRATION? (*MEMO)
The probate court lose jurisdiction of an estate under
administration only after the payment of all debts and the
remaining estate delivered to the heirs entitled to receive
the same. The finality of the approval of the project of
partition by itself alone does not terminate the proceeding.
As long as the order of the distribution of the estate has
not been complied with, the probate proceedings cannot
be deemed closed and terminated. (Guilas v. Judge of CFI
Pampanga, 43 SCRA 111)
8. WHAT IS THE REMEDY OF AN HEIR WHO HAS NOT
RECEIVED HIS SHARE? (*MEMO)
a If an heir has not received his share, his proper
remedy is to file a motion with the probate court for
delivery to him of his share or if the estate
proceedings had been closed, he should file a motion
for reopening of the proceeding, within the
prescriptive period, and not to file an independent action
for annulment of the project of partition.
However, where the order closing the intestate
proceeding was already final and executory, the same
cannot be reopened on a motion filed after the lapse of the
reglementary period. (Divinagracia, et al. v. Rovira, 72
SCRA 307, G.R. No. L-42615, August 10, 1976)
As long as the order of distribution of the estate has
not been complied with, the probate proceedings cannot
be deemed closed and terminated because a judicial
partition is not final and conclusive and does not prevent
the heirs from bringing an action to obtain his share,
provided the prescriptive period, therefore, has not
elapsed.
b. The better practice, however, for the heir who has
not received his share, is to demand his share through
proper motion in the same probate or administrative
proceedings, or for the reopening of the probate or
administrative proceedings if it had already been
closed, and not through an independent action, which
would be tried by another court or judge which may thus
reverse a decision or order of the probate or intestate court
already final and executed and re-shuffle properties long
ago distributed and disposed of. (Timbol v. Cano, 1 SCRA
1271)
RULE 91- ESCHEAT
1. WHAT IS THE CONCEPT OF ESCHEAT?
It is a proceeding whereby the real and
personal property of a deceased person become
the property of the State upon his death without
leaving a will or legal heirs.
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 It is not an ordinary action, but a special
proceeding, and commenced by petition and not
by complaint.
2. Venue?
A petition to declare as escheated a parcel
of land owned by a resident of the Philippines
who died intestate and without heirs or persons
entitled to the property is to be filed at the place
where the deceased person last resided.
GUARDIANSHIP
PART I. AS PROVIDED UNDER THE RULES OF
COURT.
Rules 92 to 97 of the Rules of Court limit its
application only to guardianship of
incompetents who are not minors pursuant to
AM No. 03-02-05 SC.
PART II. UNDER ADMINISTRATIVE CIRCULAR
N0. 03-02-05-SC OTHERWISE KNOWN AS “THE
RULE ON GUARDIANSHIP OF MINORS.”
This rule which became effective on
May 1, 2003, governs guardianship of
minors.
1. WHICH COURT HAS JURISDICTION OVER
GUARDIANSHIP PROCEEDINGS?
In guardianship proceedings involving
incompetents who are not minors, the Regional
Trial Court where he resides has jurisdiction
pursuant to the provisions of Batas Pambansa
129 as amended.
In guardianship of minors, it is the Family
Court where the minor resides.
2. VENUE IN GUARDIANSHIP CASES (RULE 92)
Venue is the place of residence of the minor
or incompetent person.
However, if the minor or incompetent
resides outside the Philippines (non-resident),
the petition may be filed in the Regional Trial
Court of the place where the property of such
minor or incompetent may be situated.
RULE 93-[BAR Q. 2012]
APPOINTMENT OF GUARDIANS
1. ENUMERATE THE FACTORS CONSIDERED
IN APPOINTING A GUARDIAN.
The factors taken into account in the
selection of a suitable guardian are:
a) the financial situation,
b) the physical condition,
c) the sound judgment,
d) prudence and trustworthiness,
e) the moral character and conduct, and the
present and past history of a prospective
appointee, as well as the probability of his
being able to exercise the powers and
duties of guardian for the full period
during which guardianship is necessary.
(Francisco v. CA, 127 SCRA 371).
RULE 96-[BAR. 2011]
GENERAL POWERS AND DUTIES OF
GUARDIANS
1. WHAT ARE THE GENERAL POWERS AND
DUTIES OF A GUARDIAN?
The general powers and duties of a
guardian are as follows:
a) Have the care and custody of the
person of the ward, and the
management of his estate, or the
management of the estate only, as the
case may be (Section 1);
b) Pay the debts of ward (Section 2);
c) Settle accounts, collect debts and
appear in actions for ward (Section 4);
d) Manage the estate of the ward frugally,
and apply the proceeds to
maintenance of the ward (Section 4);
e) Render verified inventory within 3
months after his appointment and
annually thereafter upon application
of interested persons (Section 7);
f) Must present his account to the court
8|Page
 for settlement and allowance (Section
8).
“THE BEST INTEREST OF THE CHILD”
a. Primary Consideration
1. The principle of “best interest of the
child” pervades Philippine cases involving
adoption, guardianship, support, personal
status, minors in conflict with the law, and
child custody.
2. In these cases, it has long been
recognized that in choosing the parent to
whom custody is given, the welfare of the
minors should always be the paramount
consideration.
3. Courts are mandated to take into
account all relevant circumstances that
would have a bearing on the children’s well-
being and development.
4. Aside from the material resources
and the moral and social situations of each
parent, other factors may also be
considered to ascertain which one has the
capability to attend to the physical,
educational, social and moral welfare of the
children.
“TENDER-AGE PRESUMPTION”
1. There is express statutory
recognition that, as a general rule, a mother
is to be preferred in awarding custody of
children under the age of seven. The caveat
in Article 213 of the Family Code cannot be
ignored, except when the court finds cause
to order otherwise.
2. The so-called “tender-age
presumption” under Article 213 of the
Family Code may be overcome only by
compelling evidence of the mother’s
unfitness.
3. The mother has been declared
unsuitable to have custody of her children
in one or more of the following instances:
neglect, abandonment, unemployment,
immorality, habitual drunkenness, and drug
addiction, maltreatment of the child,
insanity or affliction with a communicable
disease.
4. But sexual preference or moral laxity
alone does not prove parental neglect or
incompetence. Not even the fact that a
mother is a prostitute or has been unfaithful
to her husband would render her unfit to
have custody of her minor child. To deprive
the wife of custody, the husband must
clearly establish that her moral lapses have
had an adverse effect on the welfare of the
child or have distracted the offending
spouse from exercising proper parental
care. JOYCELYN PABLO-GUALBERTO v. CRISANTO
RAFAELITO GUALBERTO, G.R. No. 156254, June 28,
2005
TENDER AGE PRESUMPTION
1. DOES THE SECOND PARAGRAPH OF
ARTICLE 213 OF THE FAMILY CODE APPLY
ONLY TO LEGITIMATE CHILDREN?
No, it is does not limit its application to
legitimate children. This provision of the law known
as the tender age presumption is likewise applicable
to illegitimate children.
Article 213 of the Family Code provides:
“In case of separation of the parents, parental
authority shall be exercised by the parent
designated by the Court. The Court shall take
into account all relevant considerations,
especially the choice of the child over seven
years of age, unless the parent chosen is unfit.
No child under seven years of age shall be
separated from the mother unless the court
finds compelling reasons to order otherwise.”
In the recent case of Renalyn A. Masbate and
Spouses Renato Masbate and Marlyn Masbate, vs.
Ricky James Relucio, G.R. No. 235498, July 30, 2018,
Leonen, J, the Supreme Court ruled that the second
paragraph of Article 213 of the Family Code, does not
distinguish between legitimate and illegitimate children –
and hence, does not factor in whether or not the parents
are married – in declaring that "no child under seven (7)
years of age shall be separated from the mother unless
the court finds compelling reasons to order otherwise."
"Ubi lex non distinguit nec nos distinguere debemos.”
9|Page
When the law makes no distinction, The Court also ought
not to recognize any distinction.
PART II. UNDER ADMINISTRATIVE CIRCULAR
N0. 03-02-05-SC
RULE ON GUARDIANSHIP OF MINORS
1. WHAT IS THE ORDER OF PREFERENCE
IN APPOINTING A GUARDIAN, IN
DEFAULT OF PARENTS OR A COURT-
APPOINTED GUARDIAN PURSUANT TO
SECTION 6?
The order of preference shall be as follows:
— the surviving grandparent and in case
several grandparents survive, the court
shall select any of them taking into
account all relevant considerations;
— the oldest brother or sister of the minor
over twenty-one years of age, unless
unfit or disqualified;
— the actual custodian of the minor over
twenty-one years of age, unless unfit or
disqualified; and
— any other person, who in the sound
discretion of the court, would serve the
best interests of the minor.
RULE 97
TERMINATION OF GUARDIANSHIP
DIFFERENTIATE THE GROUNDS FOR TERMINATION
OF GUARDIANSHIP OVER A MINOR (SC A.M. No. 03-
02-05) AND TERMINATION OF GUARDIANSHIP OVER
AN INCOMPETENT OTHER THAN A MINOR (THE
RULES OF COURT).
The grounds for termination of guardianship
over a minor are as follows:
1. The ward has come of age;
2. Death of the ward; or
3. Death of the guardian.
The grounds for termination of guardianship of
an incompetent other than a minor are as follows:
1. Competency of the ward has been
judicially determined;
2. Guardianship is no longer necessary;
3. Death of the ward; or
4. Death of the guardian.
RULE 102- HABEAS CORPUS
1. CASES WHERE HABEAS CORPUS IS
EXTENDED.
Under Section 1, the writ of habeas corpus
shall extend to all cases of illegal confinement or
detention by which any person is deprived of his
liberty, or by which the rightful custody of any
person is withheld from the person entitled
thereto except as otherwise expressly provided
by law.
2. MAY A WIFE SECURE A WRIT OF HABEAS
CORPUS TO COMPEL HER HUSBAND TO
LIVE WITH HER IN CONJUGAL BLISS?
The answer is no.
a. No court is empowered as a judicial
authority to compel a husband to live
with his wife. Coverture cannot be
enforced by compulsion of a writ of
habeas corpus carried out by sheriifs
or any other mesne process. This is a
matter beyond judicial authority and is
best left to the man and woman’s free
choice. Ilusorio vs. Bildner, G.R. No.
139789, 332 SCRA, May 12, 2000
b. To justify the grant of the petition, the
restraint of liberty must be an illegal
and involuntary deprivation of
freedom of action. The illegal restraint
of liberty must be actual and effective,
not merely nominal or moral. (Erlinda K.
Ilusorio v. Erlinda I. Bildner and Sylvia K.
Ilusorio, G.R. No. 139808 May 12, 2000)
3. CAN A HUSBAND REFUSE TO SEE HIS WIFE
WITHOUT THREAT OF ANY PENALTY
ATTACHED TO THE EXERCISE OF HIS RIGHT?
Yes, in case the husband refuses to see
his wife for private reasons, he is at liberty to do
so without threat of any penalty attached to the
exercise of his right.
10 | P a g e
 In the case at bar, the Court of Appeals
missed the fact that the case did not involve the
right of a parent to visit a minor child but the
right of a wife to visit a husband. In case the
husband refuses to see his wife for private
reasons, he is at liberty to do so without threat
of any penalty attached to the exercise of his
right. (Ilusorio vs. Bildner, G.R. No. 139789, 332 SCRA,
May 12, 2000)
4. ARE THERE INSTANCES WHERE A WRIT OF
HABEAS CORPUS MAY BE ISSUED EVEN IF
THE DETENTION IS BY VIRTUE OF A
JUDGMENT?
Yes, the rule that habeas corpus may not be
availed of if the detention is by virtue of a valid
judgment is not absolute.
The writ may be allowed as a post-
conviction remedy when the proceedings
leading to the conviction were attended by any
of the following exceptional circumstances:
1. there was a deprivation of a
constitutional right resulting in the
restraint of a person;
2. the court had no jurisdiction to impose
the sentence; or
3. the imposed penalty was excessive,
thus voiding the sentence as to such
excess. (Samuel Barredo y Golani v. Hon.
Vicente Vinarao, Director, Bureau of
Corrections, G.R. No. 168728, August 02,
2007)
5. MAY HABEAS CORPUS BE RESORTED TO
WHERE RIGHTFUL CUSTODY IS WITHHELD
FROM A PERSON ENTITLED THERETO?
Habeas corpus may be resorted to in cases
where rightful custody is withheld from a person
entitled thereto under Article 211 of the Family
Code.
6. IS A MOTION FOR EXECUTION NECESSARY
TO EFFECT A HABEAS CORPUS DECISION?
No, there is no need to file a motion for
execution for habeas corpus decision. Since the
right to life, liberty and security of a person is at
stake, the proceedings should not be delayed
and execution of any decision thereon must be
expedited as soon as possible since any form of
delay, may jeopardize the very rights these writs
seek to immediately protect (Lt. Colonel Rogelio
Boac, et al. v. Erlinda T. Cadapan, et al., G.R. Nos.
184461-62, 184495,187109, May 31, 2011)
7. IN A CASE WHERE COURTS HAVE
CONCURRENT JURISDICTION, MAY A PARTY
HAVE THE FREEDOM OF CHOICE OF COURT
FORUM?
No, although the Supreme Court, the
Court of Appeals and the Regional Trial Courts
have concurrent jurisdiction to issue writs of
certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction, such
concurrence does not give the petitioner
unrestricted freedom of choice of court forum. It
is subject to the doctrine on hierarchy of courts
(Lihaylihay, vs. The Treasurer of the Philippines et al.,
G.R. No. 192223, July 23, 2018, Leonen, J.).
8. IS CONGRESS CONSTITUTIONALLY
MANDATED TO CONVENE IN JOINT SESSION
FOLLOWING THE PRESIDENT'S
PROCLAMATION OF MARTIAL LAW AND/OR
SUSPENSION OF THE PRIVILEGE OF THE WRIT
OF HABEAS CORPUS UNDER ARTICLE VII,
SECTION 18 OF THE 1987 CONSTITUTION?
No, the plain language of the subject
constitutional provision does not support the
petitioners' argument that it is obligatory for the
Congress to convene in joint session following
the President's proclamation of martial law
and/or suspension of the privilege of the writ of
habeas corpus, under all circumstances.
Congress is not constitutionally
mandated to convene in joint session except to
vote jointly to revoke the President's declaration
or suspension. By the language of Article VII,
Section 18 of the 1987 Constitution, the
Congress is only required to vote jointly to
revoke the President's proclamation of martial
law and/or suspension of the privilege of the writ
of habeas corpus. (Alexander A. Padilla, Rene A.V.
Saguisag, Christian S. Monsod, Loretta Ann P.
Rosales, et. al. Respondent, G.R. No. 231694,July
25, 2017).
9. DOES THE WAIVER UNDER ARTICLE 125 OF
THE RPC GIVE THE RIGHT TO DETAIN A
PERSON INDEFINITELY?
No, waiver does not give the State the
right to detain a person indefinitely. The waiver
of Article 125 must coincide with the prescribed
11 | P a g e
period for preliminary investigation as mandated
by Section 7, Rule 112 of the Rules of Court.
Detention beyond this period violates the
accused's constitutional right to liberty.
The Court ruled that a detainee under
such circumstances must be promptly released
to avoid violation of the constitutional right to
liberty, despite a waiver of Article 125, if the 15-
day period (or the thirty 30- day period in cases
of violation of R.A. No. 9165 ) for the conduct of
the preliminary investigation lapses.
This rule also applies in cases where the
investigating prosecutor resolves to dismiss the
case, even if such dismissal was appealed to the
DOJ or made the subject of a motion for
reconsideration, reinvestigation or automatic
review. (In the Matter of the Petition For Issuance of
Writ Of Habeas Corpus With Petition for Relief,
Integrated Bar of the Philippines Pangasinan Legal
Aid and Jay-Ar R. Senin, Petitioners vs. Department
Of Justice, et, al., G.R. No. 232413, July 25, 2017).
IT IS WITHIN THE POWER OF THE PRESIDENT
TO SUSPEND THE WRIT OF HABEAS CORPUS .
LAGMAN vs. MEDIALDEA
(G.R. No. 231658, July 4, 2017,
Del Castillo, J.)
DOCTRINES:
a. The President deduced from the facts
available to him that there was an armed public
uprising, the culpable purpose of which was to
remove from the allegiance to the Philippine
Government a portion of its territory and to
deprive the Chief Executive of any of his powers
and prerogatives, leading the President to
believe that there was probable cause that the
crime of rebellion was and is being committed
and that public safety requires the imposition of
martial law and suspension of the privilege of the
writ of habeas corpus.
b. The recommendation of, or
consultation with, the Secretary of
National Defense, or other high-ranking
military officials, is not a condition for the
President to declare martial law.
A plain reading of Section 18, Article VII
of the Constitution shows that the
President's power to declare martial law
is not subject to any condition except for
the requirements of actual invasion or
rebellion and that public safety requires
it. Besides, it would be contrary to common
sense if the decision of the President is made
dependent on the recommendation of his
mere alter ego. Rightly so, it is only on the
President and no other that the exercise of
the powers of the Commander-in-Chief
under Section 18, Article VII of the
Constitution is bestowed.
c. It cannot be overemphasized that time
is paramount in situations necessitating
the proclamation of martial law or
suspension of the privilege of the writ
of habeas corpus.
It was precisely this time element that
prompted the Constitutional Commission
to eliminate the requirement of
concurrence of the Congress in the initial
imposition by the President of martial law
or suspension of the privilege of the writ
of habeas corpus.
1. Past events may be considered as
justifications for the declaration and/or
suspension as long as these are
connected or related to the current
situation existing at the time of the
declaration.
Terrorism or acts attributable to terrorism may
be equivalent to actual rebellion and the
requirements of public safety sufficient to
declare martial law or suspend the privilege of
the writ of habeas corpus.
CASE: RELEASE OF PETITIONERS FROM
DETENTION RENDERS THE PETITION MOOT.
Pedro S. Agcaoili, Jr.,et. al., petitioners, Maria
Imelda Josefa "Imee" R. Marcos, co-petitioner,
vs. Representative Rodolfo C. Farinas, et. al.,
Respondents, July 3, 2018, G.R. No. 232395,
Tijam, J.
DOCTRINE: With the subsequent release of all
the petitioners from detention, their petition for
habeas corpus has been rendered moot. The rule
is that courts of justice constituted to pass upon
substantial rights will not consider questions
where no actual interests are involved and thus,
will not determine a moot question as the
resolution thereof will be of no practical value.
WHEN DOES A PETITION FOR WRIT OF
HABEAS CORPUS BECOME MOOT AND
ACADEMIC?
12 | P a g e
 Supervening events may render the
petition for habeas corpus moot and academic.
A moot and academic case is one that
ceases to present a justiciable controversy by
virtue of supervening events, so that a
declaration thereon would be of no practical use
or value and that generally, courts decline
jurisdiction over such case, or dismiss it on
ground of mootness.
In one case, petitioners are all military men.
The Court ruled that any resolution of the petitions to
annul the Memorandum and Letter Order No. 758,
to restrain the Special General Court Martial and to
order the release of the petitioners from confinement
would be of no practical value since as early as
2009, Special General Court Martial No. 2 already
absolved the petitioners of the charges under the
Articles of War,
Special General Court Martial No. 2 has long
been dissolved and the petitioners were already
released from confinement. (Col. Orlando E. De
Leon, PN (M) vs. Lt. Gen.. Esperon, Jr., (AFP), and
Special General Court Martial No. 2, GR.
No.176394, October 21, 2015, Jardaleza, J.).
THE RULE ON CUSTODY OF MINORS AND
WRIT OF HABEAS CORPUS IN RELATION TO
CUSTODY OF MINORS
A.M. No. 03-04-04-SC
1. ENUMERATE THE REQUISITES FOR THE
GRANT OF THE WRIT OF HABEAS CORPUS
INVOLVING CUSTODY OF MINORS?
The requisites for the valid grant of the writ
where rightful custody over a minor is withheld
from a person lawfully entitled therein are as
follows:
1. The petitioner has the right of custody
over the minor child;
2. The rightful custody over the minor is
being withheld by the respondent;
3. That it serves the best interest of the
minor child to be in the custody of the
petitioner rather than with the
respondent.
RULE 103 - CHANGE OF NAME
1. IS CHANGE OF NAME A MATTER OF RIGHT?
No, the Court has had occasion to express
the view that the State has an interest in the
names borne by individuals and entities for
purposes of identification, and that a change of
name is a privilege and not a right, so that before
a person can be authorized to change his name
given him either in his certificate of birth or civil
registry, he must show proper or reasonable
cause, or any compelling reason which may
justify such change. Otherwise, the request
should be denied. (In re: Petition for change of
name and/or correction/cancellation of entry in civil
registry of Julian Lin Carulasan Wang also known as
Julian Lin Wang, to be amended/corrected as Julian
Lin Wang v. Cebu City Civil Registrar, G.R. No.
159966, March 30, 2005)
2. WHAT MUST EXIST BEFORE A CHANGE OF
NAME MAY BE EFFECTED?
A Change of Name is a privilege and not a
matter of right, such that a “proper and
reasonable cause” must exist before it may be
authorized. In granting or denying a petition for
change of name under Rule 103, the question of
“proper and reasonable cause” is left to the
sound discretion of the Court through a
judicious evaluation of the sufficiency and
propriety of the justifications advanced in
support thereof (EMELITA BASILIO GAN,
Petitioner, v. REPUBLIC OF THE PHILIPPINES,
Respondent, G.R. No. 207147, September 14,
2016)
3. WHAT ARE THE GROUNDS DEEMED AS
PROPER AND REASONABLE CAUSE?
The Court enumerated several recognized
grounds that can be invoked by a person
desirous of changing his name, viz:
(a) when the name is ridiculous,
dishonorable or extremely
difficult to write or pronounce;
(b) when the change results as a
legal consequence such as
legitimation;
(c) when the change will avoid confusion;
(d) when one has continuously used and
been known since childhood by a
Filipino name, and was unaware of
alien parentage;
(e) a sincere desire to adopt a Filipino
name to erase signs of former
13 | P a g e
 alienage, all in good faith and without
prejudicing anybody; and
(f) when the surname causes
embarrassment and there is no
showing that the desired change of
name was for a fraudulent purpose or
that the change of name would
prejudice public interest (ERIC
SIBAYAN CHUA, Petitioner, v.
REPUBLIC OF THE PHILIPPINES,
Respondent, G.R. No. 231998,
November 20, 2017).
4. WHEN DOES RULE 103 APPLY?
In petitions for change of name, a person
avails of a remedy to alter the "designation by
which he is known and called in the community
in which he lives and is best known." When
granted, a person's identity and interactions
are affected as he bears a new "label or
appellation for the convenience of the world at
large in addressing him, or in speaking of, or
dealing with him." Judicial permission for a
change of name aims to prevent fraud and to
ensure a record of the change by virtue of a
court decree.
The proceeding under Rule 103 is also an
action in rem which requires publication of the
order issued by the court to afford the State
and all other interested parties to oppose the
petition. When complied with, the decision
binds not only the parties impleaded but the
whole world. As notice to all, publication
serves to indefinitely bar all who might make
an objection. "It is the publication of such
notice that brings in the whole world as a party
in the case and vests the court with
jurisdiction to hear and decide it."
5. DIFFERENTIATE THE “CHANGE OF
NAME” UNDER RULE 103 FROM RULE
108.
The "change of name" contemplated
under Article 376 and Rule 103 must not be
confused with Article 412 and Rule 108. A
change of one's name under Rule 103 can be
granted, only on grounds provided by law. In
order to justify a request for change of name,
there must be a proper and compelling reason
for the change and proof that the person
requesting will be prejudiced by the use of his
official name. To assess the sufficiency of the
grounds invoked therefor, there must be
adversarial proceedings (Republic vs..
Michelle Gallo, G.R. No. 207074, January 17,
2018).
In petitions for correction, only clerical,
spelling, typographical and other innocuous
errors in the civil registry may be raised.
Considering that the enumeration in Section 2,
Rule 108 also includes "changes of name," the
correction of a patently misspelled name is
covered by Rule 108. Suffice it to say, not all
alterations allowed in one's name are confined
under Rule 103. Corrections for clerical errors
may be set right under Rule 108. (Republic vs..
Michelle Gallo, Respondent. G.R. No. 207074,
January 17, 2018)
6. WHAT MAY CONSTITUTE AS A PROPER
GROUND FOR OBJECTION TO CHANGE OF
NAME?
Essentially, a change of name does not
define or effect a change of one’s existing family
relations or in the rights and duties flowing
therefrom. It does not alter one’s legal capacity
or civil status.
However, “there could be instances where
the change applied for may be open to objection
by parties who already bear the surname desired
by the applicant, not because he would thereby
acquire certain family ties with them but because
the existence of such ties might be erroneously
impressed on the public mind (Republic of the
Philippines v. Merlyn Mercadera through Attorney-
in-Fact, Evelyn Oga, G.R. No. 186027, December 8,
2010).
7. DISCUSS THE CONSEQUENCE OF A GRANT
TO CHANGE NAME.
a. A mere change of name would not cause
a cause in one’s existing family relations, nor
create new family rights and duties where none
exists before.
b. Neither would it affect a person’s legal
capacity, civil status or citizenship. What would
be altered is the word or group of words by
which he is identified and distinguished from the
rest of his fellow men (Ang Chay v. Republic, 34
SCRA 224).
14 | P a g e
 c. A change of name granted by the court
affects only the petitioner. A separate petition for
change of name must be filed for his wife and
children. (Secan kok v. Republic, L-27621, August
30, 1973).
REPUBLIC vs COSETENG-MAGPAYO
(G.R. No. 189476, February 2, 2011)
DOCTRINE: The change being sought in
respondent’s petition goes so far as to affect his
legal status in relation to his parents. It seeks to
change his legitimacy to that of illegitimacy. Rule
103 then would not suffice to grant respondent’s
supplication.
RULE 108
CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY
1. WHAT IS AN APPROPRIATE ADVERSARY
PROCEEDING?
Rule 108 of the Rules of Court provides
the procedure for the correction of substantial
changes in the civil registry through an
appropriate adversary proceeding.
An adversary proceeding is defined as
one "having opposing parties; contested, as
distinguished from an ex parte application, one
of which the party seeking relief has given legal
warning to the other party, and afforded the
latter an opportunity to contest it." (Petition for
Correction Of Entry (Change of Family Name in the
Birth Certificate of Felipe C. Almojuela as
Appearing in the Records of the National Statistics
Office), Felipe C. Almojuela, Petitioner vs. Republic
of the Philippines, Respondent, G.R. No. 211724,
August 24. 2016)
2. DOES RULE 108 LIMIT ITSELF TO
SUMMARY PROCEEDING OF CORRECTION
OF CLERICAL ERRORS IN THE CIVIL
REGISTRY?
No, this rule in "names," however, does
not operate to entirely limit Rule 108 to the
correction of clerical errors in civil registry
entries by way of a summary proceeding.
The authority for allowing substantial
errors in other entries like citizenship, civil
status, and paternity, to be corrected using
Rule 108 provided there is an adversary
proceeding. "After all, the role of the Court
under Rule 108 is to ascertain the truths about
the facts recorded therein." (Republic vs..
Michelle Gallo, Respondent. G.R. No. 207074,
January 17, 2018).
3. IN WHAT INSTANCE MAY RULE 103 AND
RULE 108 APPLY IN CHANGE OR
CORRECTION OF FIRST NAME?
A person may now change his or her first
name or correct clerical errors in his or her
name through administrative proceedings.
Rules 103 and 108 only apply if the
administrative petition has been filed and later
denied. (Republic vs.. Michelle Gallo,
Respondent. G.R. No. 207074, January 17,
2018).
4. IN A PETITION FOR A SUBSTANTIAL
CORRECTION OF ENTRY, MUST THE LOCAL
CIVIL REGISTRAR BE IMPLEADED?
Yes, the local civil registrar must be
impleaded since he is an indispensable party
without whom no final determination of the case
can be had.
The failure to strictly comply with the
above-discussed requirements of Rule 108 of
the Rules of Court for correction of an entry in
the civil registrar involving substantial and
controversial alterations renders the entire
proceedings therein null and void.
The local civil registrar is thus required
to be made a party to the proceeding. He is an
indispensable party, without whom no final
determination of the case can be had. As he was
not imp leaded in this case much less given
notice of the proceeding, the decision of the
trial court, insofar as it granted the prayer for
the correction of entry, is void. The absence of
an indispensable party in a case renders
ineffectual all proceedings subsequent to the
filing of the complaint including the judgment.
5. MAY THE PROPER COURT EXERCISE
JURISDICTION TO ENTERTAIN PETITIONS FOR
CHANGE OR CORRECTION OF FIRST NAME
AND DATE BIRTH?
No, the local city or municipal civil
registrar or consul general has the primary
jurisdiction to entertain petitions for change or
15 | P a g e
correction of first name and birth date, pursuant
to R.A. 9048.
6. MAY THERE BE AN INSTANCE WHERE A
COURT MAY PASS UPON PETITIONS FOR
CHANGE OR CORRECTION OF FIRST NAME
AND DATE BIRTH?
It is only when such petition is denied
that a petitioner may either appeal to the civil
registrar general or file the appropriate
petition with the proper court.
7. WHICH COURT HAS JURISDICTION ON
PETITIONS FILED UNDER RULE 108?
The verified petition must be filed before the
Regional Trial Court where the corresponding
civil registry is located.
8. ENUMERATE THE PARTIES WHO MAY BE
IMPLEADED TO A CANCELLATION OR
CORRECTION OF AN ENTRY PROCEEDING.
The persons who must be made parties
to a proceeding concerning the cancellation
or correction of an entry in the civil register
are:
(l) the civil registrar, and
(2) all persons who have or claim any
interest which would be affected
thereby. (REPUBLIC vs. TIPAY, G.R.
NO. 209527, February 14, 2018, Reyes
JR., J.)
9. WHO ARE THE PARTIES THAT MAY
OPPOSE THIS PROCEEDING?
The following are likewise entitled to
oppose the petition:
(1) the civil registrar, and
(2) any person having or claiming
any interest under the entry
whose cancellation or correction
is sought.
There can be no doubt that when an
opposition to the petition is filed either by the Civil
Registrar or any person having or claiming any
interest in the entries sought to be cancelled
and/or corrected and the opposition is actively
prosecuted, the proceedings thereon become
adversary proceedings.
Thus, in the case of (Republic, Petitioner,
vs. Virgie (Virgel) L. Tipay, Respondent. G.R. No.
209527, February 14, 2018, Reyes JR., J.) the
Republic incorrectly argued that the petition for
correction under Rule 108 of the Rules of Court is
limited to changes in entries containing harmless
and innocuous errors.
10. SHOULD A PETITION FOR THE
CORRECTION OR CHANGE OF ENTRIES IN
ONE’S BIRTH CERTIFICATE BE GRANTED BY
REASON OF “SEX CHANGE”?
No. Since the statutory language of the Civil
Register Law was enacted in the early 1900s and
remains unchanged, it cannot be argued that the
term “sex” as used then is something alterable
through surgery or something that allows a post-
operative male-to-female transsexual to be
included in the category “female.” Thus, there is
no legal basis for his petition for the correction
or change of entries in his birth certificate.
11. Rommel Jacinto Dantes Silverio v. Republic
of the Philippines,
Change of gender on the ground of sex
reassignment surgery is not a valid ground.
(G.R. No. 174689, October 22, 2007).
12. ON THE OTHER HAND, MAY THE COURT
GRANT A PETITION UNDER RULE 108 TO
CHANGE THE GENDER OF A PERSON FROM
“FEMALE” TO “MALE” BY REASON OF
CONGENITAL ADRENAL HYPERPLASIA (CAH)?
Yes, as provided in the case of Republic v.
Cagandahan, 562 SCRA 72, G.R. No. 166676,
September 12, 2008
13. WHAT ARE THE PRINCIPLES LAID DOWN BY
THE SUPREME COURT IN THE CASE OF
REPUBLIC V. CAGANDAHAN?
The principles are the following:
1. Where the person is biologically or
naturally intersex, the determining factor in his
gender classification would be what the
individual, having reached the age of majority,
with good reason thinks of his/her sex; Sexual
16 | P a g e
development in cases of intersex persons makes
the gender classification at birth inconclusive –
it is at maturity that the gender of such persons,
like respondent, is fixed.
2. To the person with Congenital Adrenal
Hyperplasia (CAH) belongs the human right to
the pursuit of happiness and of health, and to
him should belong the primordial choice of what
courses of action to take along the path of his
sexual development and maturation.
14. MAY A PETITION FOR RECOGNITION OF A
FOREIGN JUDGMENT BE MADE UNDER
RULE 108?
Yes, since the recognition of a foreign
judgment only requires proof of fact of the
judgment, it may be made in a special
proceeding for cancellation or correction of
entries in the civil registry under Rule 108 of the
Rules of Court. Rule 1, Section 3 of the Rules of
Court provides that “[a] special proceedings is a
remedy by which a party seeks to establish a
status, a right, or a particular fact.” Rule 108
creates a remedy to rectify facts if a person’s life
which are recorded by the State pursuant to the
Civil Register Law or Act No. 3753. These are
facts of public consequence such as birth,
death, or marriage, which the State has an
interest in recording.
GERBERT CORPUS v. DAISYLYN STO.TOMAS
G.R. No. 186571, August 11, 2010
DOCTRINE: The recognition of the
foreign divorce decree may be made in a Rule
108 proceeding itself, as the object of special
proceedings (such as that in Rule 108 of the
Rules of Court) is precisely to establish the
status or right of a party or a particular fact.
REPUBLIC OF THE PHILIPPINES v.
MERLINDA L. OLAYBAR
G.R. No. 189538, February 10, 2014
DOCTRINE: While the Court maintain that Rule
108 cannot be availed of to determine the validity
of marriage, the Court cannot nullify the
proceedings before the trial court where all the
parties had been given the opportunity to
contest the allegations of respondent; the
procedures were followed, and all the evidence
of the parties had already been admitted and
examined.
Respondent indeed sought, not the
nullification of marriage as there was no
marriage to speak of, but the correction of
the record of such marriage to reflect the
truth as set forth by the evidence.
Otherwise stated, in allowing the
correction of the subject certificate of
marriage by cancelling the wife portion
thereof, the trial court did not, in any way,
declare the marriage void as there was no
marriage to speak of.
CASE: RULE 108 AS THE APPROPRIATE
ADVERSARY PROCEEDING AND REASONS
WHY RULE 108 IS NOT ALWAYS A SUMMARY
PROCEEDING
REPUBLIC vs. VIRGIE (VIRGEL) L.
TIPAY,
G.R. NO. 209527, FEBRUARY 14, 2018,
REYES, JR., J.
Doctrine: It is true that in special
proceedings, formal pleadings and a hearing
may be dispensed with, and the remedy is
granted upon mere application or motion.
However, a special proceeding is not always
summary. The procedure laid down in Rule 108
is not a summary proceeding per se. It requires
publication of the petition; it mandates the
inclusion as parties of all persons who may
claim interest which would be affected by the
cancellation or correction; it also requires the
civil registrar and any person in interest to file
their opposition, if any; and it states that
although the court may make orders expediting
the proceedings, it is after hearing that the court
shall either dismiss the petition or issue an
order granting the same.
Thus, as long as the procedural
requirements in Rule 108 are followed, it is the
appropriate adversary proceeding to effect
substantial corrections and changes in entries
of the civil register.
17 | P a g e
 THE CLERICAL ERROR ACT
Republic Act No. 9048
1. WHAT IS R.A. 9048?
RA 9048 now governs the change of first
name. It vests the power and authority to
entertain petitions for change of first name to the
city or municipal civil registrar or consul general
concerned.
Under the law, therefore, jurisdiction over
applications for change of first name is now
primarily lodged with the aforementioned
administrative officers. The intent and effect of
the law is to exclude the change of first name
from the coverage of Rules 103 (Change of
Name) and 108 (Cancellation or Correction of
Entries in the Civil Registry) of the Rules of
Court, until and unless an administrative petition
for change of name is first filed and
subsequently denied. It likewise lays down the
corresponding venue, form and procedure. In
sum, the remedy and the proceedings regulating
change of first name are primarily administrative
in nature, not judicial.
2. WHAT IS THE LEGAL EFFECT OF R.A. 9048
KNOWN AS THE CLERICAL ERROR ACT?
Republic Act No. 9048 amended Articles
376 and 412 of the Civil Code, effectively
removing clerical errors and changes of the
name outside the ambit of Rule 108 and
putting them under the jurisdiction of the civil
register. (Republic vs.. Michelle Gallo,
Respondent. G.R. No. 207074, January 17,
2018).
3. WHAT ENTRIES IN THE CIVIL REGISTRY
ARE SUBJECT TO R.A. 9048?
No entry in a civil registry shall be changed
or corrected without a judicial order except:
1. for clerical or typographical errors of
first name; and
2. change of first name or nickname.
4. WHICH GOVERNMENT BODY HAS
JURISDICTION TO EFFECT CHANGE OR
CORRECTION?
The same can be corrected or changed by
concerned city or municipal civil registrar or consul
general.
5. IS THE CLERICAL ERROR ACT LIMITED TO
CORRECTION OF CLERICAL OR
TYPOGRAPHICAL ERRORS ONLY?
No. The law is clear. It also applies to
change of first name or nickname.
6. DOES THE CLERICAL ERROR ACT APPLY TO
CHANGE OF FULL NAME?
No. Change of full name is covered by Rule
103. The act is limited to clerical or typographical
errors and change of first name or nickname.
7. WHERE IS THE FILING OF THE PETITION?
1. The petition may be filed with the local
civil registry office of the city or municipality
where the record being sought to be corrected
or changed is kept.
2. In case the petitioner has already
migrated to another place in the country and it
would not be practical for such party, in terms of
transportation expenses, time and effort to
appear in person before the local civil registrar
keeping the documents to be corrected or
changed, the petition may be filed, in person,
with the local civil registrar of the place where
the interested party is presently residing or
domiciled.
The two (2) local civil registrars concerned
will then communicate to facilitate the
processing of the petition.
1. Citizens of the Philippines who are
presently residing or domiciled in foreign
countries may file the same before the
Philippine consulate office.
REPUBLIC v. LORENA SALI
(G.R. No. 206023, April 3, 2017
J. Peralta)
DOCTRINE: The local city or municipal civil registrar or
consul general has the primary jurisdiction to entertain
petitions for change or correction of first name and birth
date, pursuant to R.A. 9048. It is only when such petition
is denied that a petitioner may either appeal to the civil
registrar general or file the appropriate petition with the
proper court.
18 | P a g e
8. ENUMERATE THE GROUNDS FOR CHANGE
OF FIRST NAME OR NICKNAME UNDER
SECTION 4 OF THIS ACT.
The petition for change of first name or
nickname may be allowed in any of the following
cases:
(1) The petitioner finds the first name or
nickname to be ridiculous, tainted with
dishonor or extremely difficult to write
or pronounce;
(2) The new first name or nickname has
been habitually and continuously used
by the petitioner and he has been
publicly known by the first name or
nickname in the community; or
(3) The change will avoid confusion.
9. WHAT IS THE EFFECT OF R.A. 9048 TO THE
APPLICATION OF RULE 108?
Under this new law, “clerical or
typographical errors and change of first name or
nickname” may be corrected or changed by the
concerned city or municipal registrar or consul
general, without need of any judicial order.
10. DOES R.A. 9048 APPLY TO CHANGE IN
NATIONALITY?
No, Republic Act. No. 9048 provides in
Section 2 (3) that a summary administrative
proceeding to correct clerical or typographical
errors in a birth certificate cannot apply to a
change in nationality.
AMENDMENT TO R.A. 9048
REPUBLIC ACT No. 10172
Effectivity date: September 3, 2012
1. WHAT IS THE LEGAL EFFECT OF R.A. 10172
AMENDING R.A. 9048?
In 2012, Republic Act No. 9048 was
amended by Republic Act 10172.
In addition to the change of the first
name, the day and month of birth, and the sex
of a person may now be changed without
judicial proceedings. Republic Act No. 10172
clarifies that these changes may now be
administratively corrected where it is patently
clear that there is a clerical or typographical
mistake in the entry. (Republic vs.. Michelle
Gallo, Respondent. G.R. No. 207074, January 17,
2018).
2. EXPLAIN THE TERM “VISIBLE TO THE EYES
OR OBVIOUS TO THE UNDERSTANDING." AS
A CLERICAL OR TYPOGRAPHICAL ERROR
UNDER REPUBLIC ACT NO. 10172.
By qualifying the definition of a clerical,
typographical error as a mistake "visible to the
eyes or obvious to the understanding," the law
recognizes that there is a factual
determination made after reference to and
evaluation of existing documents presented.
Thus, corrections may be made even
though the error is not typographical if it is
"obvious to the understanding," even if there
is no proof that the name or circumstance in
the birth certificate was ever used.
3. WHAT ARE THE ENTRIES IN THE BIRTH
CERTIFICATE THAT CAN BE CORRECTED?
1. clerical or typographical errors and
change of first name or nickname; (R.A.
9048) and
2.. day and month in the date of birth or
sex of a person where it is patently clear
that there was a clerical or typographical
error or mistake in the entry. (R.A. 10172)
4. WHAT ARE THE ENTRIES IN THE BIRTH
CERTIFICATE THAT CANNOT BE CHANGED?
(SEC. 2 (3), R.A. NO. 10172)
1. nationality;
2. age; or
3.status of the petitioner.
5. WHAT ARE THE REQUIREMENTS FOR
CORRECTION OF DATE OF BIRTH (day or
month) OR THE SEX OF THE PERSON? (SEC.5,
R.A. NO. 10172)
No petition for correction of
erroneous entry concerning the date of
birth or the sex of a person shall be
entertained except:
1. if the petition is accompanied by
earliest school record or earliest
19 | P a g e
 school documents such as, but not
limited to, medical records, baptismal
certificate and other documents
issued by religious authorities;

and in case of change of gender,

the petition is accompanied by a
certification issued by an accredited
government physician attesting to the
fact that the petitioner has not
undergone sex change or sex
transplant.

2. The petition for change of first name or

nickname, or for correction of erroneous
entry concerning the day and month in
the date of birth or the sex of a person, as
the case may be, shall be published at
least once a week for two (2) consecutive
weeks in a newspaper of general
circulation.

3. The petitioner shall submit a

certification from the appropriate law
enforcements, agencies that he has no
pending case or no criminal record.

4. The petition and its supporting papers

shall be filed in three (3) copies.

“…WE WENT THROUGH FIRE AND WATER,

BUT YOU BROUGHT US TO A
PLACE OF ABUNDANCE.”
Psalms 66:12
G
O
D
B
L
E
S
S
!
P
s
a
l
m
s
6
6
:
20 | P a g e
 PART II. COMPARATIVE TABLES/DISTINCTIONS

1. COMPARATIVE TABLE ON RULE 103, RULE 108, R.A. 9048 AND R.A. 10172:

Rule 103 Rule 108 R.A. 9048 R.A. 10172

Name of Change of Name Cancellation/Correction Clerical Error Act Amendment to
Law of Entries in the Civil R.A. 9048
Registry

Subject Change of full Change or corrections Change of first Correction of

Matter name in the civil entries name and clerical or
(substantial (substantial nickname and typographical
corrections) corrections) civil entries (only errors in the day
typographical or and month in the
clerical errors) date of birth or sex
of a person

Who may A person Any person interested Any person Same in R.A.
File desiring to in any act, event, order having direct and 9048
change his or decree concerning personal interest
name. (Section the civil status of in the correction
1) persons which has of a clerical or
been recorded in the typographical
civil register. (Section error in an entry
1) and/or change of
first name or
nickname.
(Section 3)

Venue RTC of the RTC of city or province 1. Local civil 1. Local civil
province in where the registry office of registry office of
which petitioner corresponding civil the city or the city or
resides for 3 registry is located. municipality municipality where
years prior to where the record the record being
filing, or, in the being sought to sought to be
City of Manila, to be corrected or corrected or
the Juvenile and changed is kept; changed is kept;
Domestic
Relations Court. 2.Local civil
registrar of the 2.Local civil
place where the registrar of the
interested party is place where the
presently residing interested party is
or domiciled; presently residing
or domiciled;
3.Philippine
Consulate. 3.Philippine
Consulate.
21 | P a g e
Contents of (a) That the (a) That the petitioner (a) Facts (a) Facts
petition petitioner has has been a bona fide necessary to necessary to
been a bona fide resident of the province establish the establish the
resident of the where the petition is merits of the merits of the
province where filed for at least three petition; petition;
the petition is (3) years prior to the
filed for at least date of such filing; (b) particular (b) Facts that shall
three (3) years erroneous entry show affirmatively
prior to the date (b) The cause for or entries, which that the petitioner
of such filing; which the change of are sought to be is competent to
the petitioner’s name is corrected and/or testify to the
(b) The cause sought; the change matters stated in
for which the (c) The name asked sought to be the petition.
change of the for. made.
petitioner’s (Section 2) The petition shall
name is sought; The petition shall be supported with
(c) The name be supported with the following
asked for. the following documents:
(Section 2) documents:
(1) A certified true
(1) A certified true machine copy of
machine copy of the certificate or of
the certificate or the page of the
of the page of the registry book
registry book containing the
containing the entry or entries
entry or entries sought to be
sought to be corrected or
corrected or changed;
changed;
(2) At least two (2)
(2) At least two public or private
(2) public or documents
private showing the
documents correct entry or
showing the entries upon
correct entry or which the
entries upon correction or
which the change shall be
correction or based; and
change shall be
based; and (3) Other
documents which
(3) Other the petitioner or
documents which the city or
the petitioner or municipal civil
the city or registrar or the
municipal civil consul general
registrar or the may consider
consul general relevant and
may consider necessary for the
relevant and approval of the
necessary for the petition. (Section
approval of the 3)

22 | P a g e
petition. (Section
5) No petition for
correction of
erroneous entry
concerning the
date of birth or the
sex of a person
shall be
entertained
except:

-if the petition is

accompanied by
earliest school
record or earliest
school documents
such as, but not
limited to, medical
records, baptismal
certificate and
other documents
issued by religious
authorities;
nor shall any entry
involving change
of gender
corrected except:

- if the petition is
accompanied by a
certification issued
by an accredited
government
physician attesting
to the fact that the
petitioner has not
undergone sex
change or sex
transplant.

Furthermore, the
petitioner shall
submit a
certification from
the appropriate
law enforcement
agencies that he
has no pending
case or no
criminal record.

23 | P a g e
Grounds 1. Name is Upon good and valid 1. The petitioner Clerical or
ridiculous, grounds, the following finds the first typographical
tainted with entries in the civil name or error
dishonor and register may be nickname to be
extremely cancelled or corrected. ridiculous, tainted
difficult to write with dishonor or
or pronounce; extremely difficult
to write or
2. Consequence pronounce;
of change of
status; 2. The new first
name or
3. Necessity to nickname has
avoid confusion; been habitually
and continuously
4. Having used by the
continuously petitioner and he
used and been has been publicly
known since known by that by
childhood by a that first name or
Filipino name, nickname in the
unaware of her community; or
alien parentage;
3. The change will
5. A sincere avoid confusion.
desire to adopt a (Section 4)
Filipino name to
erase signs of
former alienage
all in good faith
and without
prejudicing
anybody.
Kind of Judicial Summary proceeding Administrative Administrative
proceeding Proceeding This can be converted proceeding proceeding
to an adversarial
proceeding if there are
substantial changes
and affect the status of
an individual.

Notice and At least once a At least once a week At least once a At least once a
Publication week for three for three consecutive week for two (2) week for two (2)
consecutive weeks in some consecutive consecutive
weeks in some newspaper of general weeks (publish weeks in a
newspaper circulation (notice of the whole newspaper of
circulation hearing) affidavit) general circulation
(notice of
hearing)

Who The Solicitor The Civil Registrar The Civil Same in R.A.
participates General or the Registrar or the 9048
on the part proper provincial Consul.

24 | P a g e
of the or city fiscal shall
Government appear on behalf
of the
Government of
the Republic.
Where to Appeal decision Appeal decision with Appeal decision Same in R.A.
appeal with the Court of the Court of Appeals. to the Civil 9048
Appeals. Registrar General
(head of NCSO).

2. COMPARATIVE TABLE ON JURISDICTION AND VENUE IN SPECIAL PROCEEDINGS

Kinds of Special Proceedings Jurisdiction and Venue

1. Settlement of Estate 1. RTC or MTC (depending on the gross value

(Rule 73) of the estate) of the province where the
deceased last resided.

2. In case the decedent is a non-resident of the

Philippines at the time of his death, venue lies
in any province in which he had an estate.

2. Escheat 1. RTC of province where the deceased last

(Rule 91) resided.
2. In case the decedent is a non-resident of the
Philippines at the time of his death, venue lies
in any province in which he had an estate.

3. Guardianship
1. Family Court of province or city where the
a. Rule on Guardianship of Minors minor actually resides.
(A.M. No. 03-02-05-SC) 2. If the minor resides in a foreign country, in the
Family Court of the province or city where his
property or any part thereof is situated

b. Guardianship over incompetent persons who
are not minors under the Rules of Court
(Rules 92-97)
1. RTC of the province or city where
incompetent person last resided.
2. If the incompetent person resides in a foreign
country, in the Family Court of the province or
city where his property or any part thereof is
situated.

25 | P a g e
4. The Rules of Adoption
(A.M. No. 02-6-02-SC)

a. If filed under the Domestic Adoption Act
(R.A. 8552)
1. Family Court of province or city where
prospective adoptive parents reside.
2. If the petition is for Rescission of Adoption of
the Adoptee—Family Court of the city or
province where the adoptee resides.(Sec.19)

b. If filed under the Inter-Country Adoption Act
(R.A. 8043)
1. Family Court having jurisdiction over the
place where the child resides or may be found
(filed by a foreign national or Filipino citizen
permanently residing abroad).
2. It may be filed directly with the Inter-Country
Adoption Board.

5. Habeas Corpus

a. Habeas Corpus for illegal confinement or
detention (Rule 102)
1. If filed with RTC, where detainee is detained.
SC, CA and RTC have concurrent jurisdiction.
*The writ of habeas corpus issued by the RTC
shall be enforceable only within its judicial
region (Sec. 21, BP 129).

b. Habeas Corpus for custody of Minors
(A.M. No. 03-04-04 SC)
1. Family courts have exclusive jurisdiction
(Family Courts Act of 1997 [RA 8309]).
2. Under the Rule on Custody of Minors and Writ
of Habeas Corpus in relation to Custody of
Minors (A.M. No. 03-04-04-SC), the petition
may be filed with SC, CA or any of its members,
and, if so granted, the writ shall be enforceable
anywhere in the Philippines.

6. Amparo (A.M. No. 07-9-12-SC) SC, CA and Sandiganbayan, RTC

If with the RTC:
The place where the threat, act or omission
was committed or any of its elements
occurred.(Sec.3)

7. Habeas Data (A.M. No. 08-1-16-SC)
SC, CA and Sandigabayan when the action
concerns public data files of government offices
If with the RTC:
1. where petitioner resides; or
2. where respondent resides; or
3. that which has jurisdiction over the place
where data or information is gathered, collected
or stored, at the option of petitioner. (Sec.3)

26 | P a g e
 8. Change of name (Rule 103):
RTC of the province where the petitioner
resides.(Sec.1)

9. Absentees (Rule 107):

RTC of place where absentee resided
before his disappearance.(Sec.1)

10. Cancellation or Correction of Entries RTC of the province where the corresponding
(Rule 108): Local Civil Registrar of place is located.(Sec.1)

11. The Clerical Error Act (R.A. 9048) 1. Local civil registry office of the city or
municipality where the record being sought to
be corrected or changed is kept;

2.Local civil registrar of the place where the

interested party is presently residing or
domiciled;

3.Philippine Consulates

3. DISTINCTION BETWEEN WRITS OF HABEAS CORPUS, AMPARO AND DATA:

WRIT OF HABEAS CORPUS AMPARO HABEAS DATA

LEGAL BASIS The Rule was drafted Same Same

pursuant to the Supreme
Court’s constitutional
power to promulgate
rules for the protection
and enforcement of
constitutional rights
(Constitution, Art. VIII,
Sec. 5[5]).

GOVERNING LAW Rule 102 A.M. No. 07-9-12-SC A.M. No. 08-1-16-SC

27 | P a g e
Definition “Habeas corpus” is a
Latin phrase which
literally means “you have
the body.” Basically, it is
a writ directed to the
person detaining
another, commanding
him to produce the body
of the prisoner at a
designated time and
place, with the day and
cause of his capture and
detention, to do, submit
to, and receive
whatsoever the court or
judge awarding the writ
shall consider in that
behalf.
REMEDY FOR Sec. 1
To all cases of illegal
confinement or
detention:
1. By which any person
is deprived of his liberty;
or
2. By which the rightful
custody of any person is
withheld from the person
entitled thereto.
PETITIONER Sec. 3
By the party for whose
relief it is intended, or by
some other person in his
behalf
VENUE Sec. 2
Where the plaintiff
resides or where the
defendant resides, or in
the case of non-resident
defendant, where he
may be found, at the
election of the plaintiff.
It is a remedy available to
any person whose right to
life, liberty, and security
has been violated or is
threatened with violation
by an unlawful act or
omission of a public
official or employee, or of
a private individual or
entity. The writ covers
extralegal killings and
enforced disappearances
or threats thereof.
Sec. 1
To any person whose
right to life, liberty and
security is violated or
threatened with violation
by an unlawful act or
omission of a public
official or employee, or of
a private individual or
entity.
Sec. 2
By the aggrieved party, or
by any qualified person or
entity in the order
provided in Sec. 2
Sec. 3
SC, CA and SB: Manila;
RTC of the place where
the threat, act or omission
was committed or any of
its elements occurred.
It is a remedy available to
any person whose right to
privacy in life, liberty or
security is violated or
threatened by an unlawful
act or omission of a public
official or employee, or of a
private individual or entity
engaged in the gathering,
collecting or storing of data
or information regarding the
person, family, home and
correspondence of the
aggrieved party.
Sec. 1
To any person whose right
to privacy in life, liberty and
security is violated or
threatened with violation by
an unlawful act or omission
of a public official or
employee, or of a private
individual or entity engaged
in:
1. Gathering
2. Collecting
3. Storing of data or
information regarding the
person family, home and
correspondence of the
aggrieved party.
Sec. 2
General rule:
The aggrieved party
Except:
In cases of extralegal
killings and enforced
disappearances:
1. Immediate family;
2. In default of no. 1,
ascendant, descendant or
collateral relative within the
4th civil degree of
consanguinity or affinity.
Sec. 3
SC, CA and SB: Manila;
RTC:
1. Where the petitioner
resides;
2. Where the respondent
resides;
3. Which has jurisdiction
over the place where data
28 | P a g e

EXTENT OF SC CA and SB:
ENFORCEABILITY anywhere in the
Philippines
RTC: only within its
judicial district
PROHIBITED
PLEADINGS AND
MOTIONS
EFFECT OF
FAILURE TO FILE
A RETURN
INTERIM Sec. 12
RELIEFS 1.Unless for good cause
shown, the hearing is
adjourned, in which
event the court shall
make an order for the
safe keeping of the
person imprisoned or
restrained as the nature
of the case requires;
2. The court or judge
must be satisfied that the
person’s illness is so
Anywhere in the
Philippines
Sec. 11
(a) Motion to dismiss;
(b) Motion for extension
of time to file return,
opposition, affidavits,
position paper and other
pleadings;
(c) Dilatory motion for
postponement;
(d) Motion for a bill of
particulars;
(e) Counterclaim or
cross-claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare
respondent in default;
(i) Intervention;
(j) Memorandum;
(k) Motion for
reconsideration of
interlocutory orders or
interim relief orders; and
(l) Petition for certiorari,
mandamus or prohibition
against any interlocutory
order.
Sec. 12
In case the respondent
fails to file a return, the
court, justice or judge
shall proceed to hear the
petition ex parte.
Sec. 14
(a) Temporary Protection
Order.
(b) Inspection Order.
(c) Production Order
(d) Witness Protection
Order.
or information is gathered
etc.
All at the option of the
petitioner.
Anywhere in the Philippines
Sec. 13.
(a) Motion to dismiss;
(b) Motion for extension of
time to file opposition,
affidavit, position paper and
other pleadings;
(c) Dilatory motion for
postponement;
(d) Motion for a bill of
particulars;
(e) Counterclaim or cross-
claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare
respondent in default;
(i) Intervention;
(j) Memorandum;
(k) Motion for
reconsideration of
interlocutory orders or
interim relief orders; and
(l) Petition for certiorari,
mandamus or prohibition
against any interlocutory
order.
Sec. 14
In case the respondent fails
to file a return, the court,
justice or judge shall
proceed to hear the petition
ex parte.
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 grave that he cannot be
produced without any
danger.

JUDGMENT Sec. 15 Sec. 18 Sec. 16

When the court or judge
has examined into the
cause of caption and
restraint of the prisoner,
and is satisfied that he is
unlawfully imprisoned or
restrained, he shall
forthwith order his
discharge from
confinement, but such
discharge shall not be
effective until a copy of
the order has been
served on the officer or
person detaining the
prisoner. If the officer or
person detaining the
prisoner does not desire
to appeal, the prisoner
shall be forthwith
released.
The court shall render
judgment within ten (10)
days from the time the
petition is submitted for
decision. If the allegations
in the petition are proven
by substantial evidence,
the court shall grant the
privilege of the writ and
such reliefs as may be
proper and appropriate;
otherwise, the privilege
shall be denied.
Same with WOA with an
addition that upon finality,
the judgment shall be
enforced by the sheriff or
any lawful officers as may
be designated by the court,
justice or judge within 5
working days.

APPEAL Sec. 15 in relation to Sec. 19 Sec. 19

Sec. 3 of Rule 41 and
Sec. 39 of BP 129:
48 hours from notice of
judgment appealed from
by ordinary appeal
Rule 45 by petition for Same as WOA
review on certiorari with
peculiar features:
1. Appeal may raise
questions of fact or law or
both;
2. Period of appeal shall
be 5 working days from
the date of notice of the
adverse judgment;
3. Same priority as
habeas corpus cases.

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