A M I S T A D : We live to serve!!!
(A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE
RULE 104
VOLUNTARY DISSOLUTION OF
CORPORATIONS
( The Dissolution of Corporations should now be filed
with the SEC, and is covered by Secs. 117 to 122 of the
Corporation Code of the Philippines (BP 68) which
took effect on May 1, 1980.
Dissolution - when the corporation ceases to be a
juridical person.
§117. Methods of Dissolution. A corporation formed
or organized under the provisions of this Code may be
dissolved voluntarily or involuntarily.
NOTES:
Q: How many ways are there to dissolve a
corporation?
A: Two ways--voluntary & involuntary.
Q: How many ways of dissolving voluntarily?
A: Three:
 Voluntary dissolution where no creditors are
affected (Sec. 118)
 Voluntary dissolution where creditors are affected
(Sec. 119)
 Dissolution by shortening corporate term
(Sec. 120)
§118. Voluntary dissolution where no creditors are
affected.
In case dissolution of a corporation does NOT
prejudice the rights of any creditor having a claim against
such corporation, then such dissolution may be effected
 by majority vote of the BOD or trustees, and
 by a resolution duly adopted by the affirmative vote
of the stockholders owning at least 2/3 of the
outstanding capital stock or of at least 2/3 of the
members
at a meeting to be held upon call of the dirs. or trustees
 after publication of the notice
 of the time, place and object of the meeting
 for 3 consecutive weeks
 in a newspaper published in the place where the
principal office of said corporation is located; and if
no newspaper is published in such place, then in a
newspaper of General circulation in the Philippines,
(after sending such notice to each stockholder or
member either by registered mail or personal
delivery at least 30 days prior to said meeting.
A copy of the resolution authorizing the dissolution shall
be
 certified by a majority of the BOD or trustees
 and counter-signed by the secretary of the
corporation.
The SEC shall thereupon issue the certificate of
dissolution.
91
NOTES:
Q: How do directors and stockholders vote?
A: Both issue their respective resolutions duly adopted
by affirmative votes of the required no. (BOD-
majority; SH-2/3 OCS)
Q: Publication for 3 consecutive weeks?
A: Actually, once a week for three consecutive weeks.
This is the common req’t in procedure. (Maybe an
oversight or already considered understood.)
Q: What is the President’s role here?
A: The President signs the Resolution.
§ 119. Voluntary dissolution where creditors are
affected.
Where the dissolution of a corporation may
prejudice the rights of any creditor, a petition for dissolution
shall be filed with the SEC.
The petition shall be
 signed by a majority of its BOD or trustees or other
officers having the management of its affairs,
 verified by its president or secretary or one of its
directors, or trustees, and
 shall set forth
 all claims and demands against it, and
 that its dissolution was resolved upon the
affirmative vote of the stockholders representing
 at least 2/3 of the outstanding capital stock or
by
 at least 2/3 of the members, at a meeting of its
stockholders or members called for that
purpose.
If the petition is sufficient in form and substance, the
Commission shall, by an ORDER reciting the purpose of the
petition,
 fix a date on or before which objections thereto may be
filed by any person,
 which date shall not be less than 30 days nor more than
60 days after the entry of the order.
Before such date, a copy of the order shall be published
 at least once a week for 3 consecutive weeks
 in a newspaper of General circulation ( published
in the municipality or city where the principal
office of the corporation is situated, or if there be
no such newspaper, then in a newspaper of General
circulation in the Phils.,
and a similar copy shall be posted
 for 3 consecutive weeks
 in 3 public places
 in such municipality or city.
Upon 5 days notice, Given AFTER the date on
which the right to file objections as fixed in the order has
expired, the Commission shall proceed to
 hear the petition and
 try any issue made by the objections filed;
and IF
 no such objection is sufficient, AND
 the material allegations of the petition are true,
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE
it (Commission) shall
 render judgment dissolving the corporation
and
 directing such disposition of its assets as
justice requires, and
 may appoint a receiver to collect such assets
and pay the debts of the corporation.
NOTES:
Just note that the date fixed is a deadline, on or before
which objections to the petition may be filed.
§ 120. Dissolution by shortening of corporate term. A
voluntary dissolution may be effected by amending the AOI
to shorten the corporate term pursuant to the provisions of
this Code.
A copy of the amended AOI shall be submitted to
the SEC in accordance with this Code.
Upon approval of the amended AOI or
 the expiration of the shortened term, as the case
may be,
 the corporation shall be deemed dissolved without
any further proceedings, subject to the provisions of
this Code on liquidation.
NOTES:
Q: When is the corporation deemed dissolved?
A: Two instances:
1. Upon approval of the Amended AOI, OR
2. the expiration of the shortened term
Actually, the ff. are the rules:
 If expiration date is before approval by SEC 
corpo dissolves upon approval
 If expiration date is after approval by SEC 
corpo dissolves on the date of expiration of term
 If the SEC does not act on petition within 6 mos.
from the date of filing (Sec. 16, Corpo Code) 
corpo dissolves either
 on the day after the 6-mo. pd. (if date
of expiration was within the 6-mo. pd.)
 or on the date of expiration of term
(if date is after the 6-mo. pd.).
e.g.:
Date filed petition: Jan. 1, 1998
Expiration of Shortened Term: May 1, 1998
6 mos. ends on: July 1, 1998
1) If approved by SEC on April 1
 Dissolution on May 1 (exp. Of shortened term)
2) If approved on May 15
 Dissolution on May 15 (date of approval)
3) Not acted upon within 6 mos.
 Dissolution on July 2 (day after the 6 mo. pd)
( Note that failure of the SEC to act on the petition
within 6 months, as contemplated by above rules, must
not be due to the fault of corporation.
92
§ 122. Corporate Liquidation.
Every corporation whose charter expires by its own
limitation or is annulled by forfeiture or otherwise, or whose
corporate existence for other purposes is terminated in any
other manner, shall nevertheless be continued as a body
corporate for 3 years after the time when it would have been
so dissolved,
for the purpose of
 prosecuting and defending suits by or against it
 enabling it to settle and close its affairs,
 to dispose of and convey its property and
 to distribute its assets,
BUT NOT for the purpose of continuing the
business for which it was established.
At any time during said 3 years, said corporation is
authorized and empowered to convey all of its property to
trustees for the benefit of
 stockholders,
 members,
 creditors, and
 other persons in interest.
From and after any such conveyance by the
corporation of its property in trust for the benefit of its
stockholders, members, creditors, and others in interest,
 all interest which the corporation had in the
property terminates,
 the legal interest vests in the trustees, and
 the beneficial interest in the stockholders, members,
creditors, and other persons in interest.
Upon the WINDING UP of the corporate affairs,
any asset distributable to any creditor or stockholder or
member who is unknown or cannot be found shall be
escheated to the city or municipality where such assets are
located.
Except by decrease of capital stock and as
otherwise allowed by this Code, no corporation shall
distribute any of its assets or property except
 upon lawful dissolution and
 after payment of all its debts and liabilities.
NOTES:
Q: For what purpose is the continuation as a body
corporate?
A: For purpose of winding up.
§121. Involuntary dissolution. A corporation may be
dissolved by the SEC upon filing of a verified complaint and
after proper notice and hearing on Grounds provided by
existing laws, rules and regulations.
RULE 105
JUDICIAL APPROVAL
OF VOLUNTARY RECOGNITION
OF MINOR NATURAL CHILDREN
Sec. 1. Venue.-- Where judicial approval of a
voluntary recognition of a minor natural child is
required, such child or his parents shall obtain the same
by filing a petition to that effect with the RTC in which
the child resides.
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE
1. MEANING OF VOLUNTARY
RECOGNITION
VOLUNTARY RECOGNITION is an admission of the
fact of paternity or maternity by the presumed parent,
expressed in the form prescribed by the NCC.
Its essence lies in the avowal of the parent that the
child is his; the formality is added to make the
admission incontestable, in view of its consequences.
The FORM is prescribed by Art. 278 of the NCC:
RECOGNITION shall be made in the
 record of birth
 a will
 a statement before a court of record
 or in any authentic writing.
Judicial approval is needful if the recognition of the
minor is effected, not through a record of birth or in a
will but thorough a statement in a court of record or an
authentic document. In any case, the individual
recognized can impugn the recognition within 4 years
following the attainment of majority.
Art. 281 (2) of the NCC provides:
When the recognition of a minor DOES NOT take
place
 in a RECORD of BIRTH or
 in a WILL,
Judicial Approval is Necessary.
The action must be brought within the same period
specified in Art. 173, FC, except when the action is
based on the second paragraph of Art. 172, in which
case the action may be brought during the lifetime of
the alleged parent.
Art. 173, FC. The action to claim legitimacy may be
brought by the child during his or her lifetime and
shall be transmitted to the heirs should the child
 die during minority or
 in a state of insanity.
In these cases, the heirs shall have a
period of 5 years within which to institute the action.
The action already commenced by
the child shall survive notwithstanding the death of
either or both of the parties.
Art. 172. The filiation of legitimate (or illegitimate)
children is established by any of the following:
(1) The Record of Birth appearing in the Civil
register or a final judgment; or
(2) An admission of legitimate filiation in a
public document or a private handwritten instrument
and signed by the parent concerned.
93
In the absence of the foregoing evidence, the
legitimate filiation shall be proved by:
(1) The Open and Continuous possession of
the status of a legitimate child, or
(2) Any other means allowed by the Rules of
Court and special laws.
2. HOW VOLUNTARY RECOGNITION
IS EXPRESSED
AUTHENTIC WRITING means any Genuine and
indubitable writing sufficient for compulsory
recognition.
The status of a person as a voluntary acknowledged
natural child “could be established by the ordinary
means of evidence without any limitations as to time.”
(Larena vs. Hubio) [See lecture notes below.]
NOTES:
Q: When can the child file action?
A: See Art. 173 above which provides when a child
may bring an action; moreover, the following NCC
provision which, although already repealed by the
Family Code, may still be applicable for lack of
substitute provisions on the matter.
Art 285, NCC. The ACTION for the recognition of
natural children may be brought ONLY during the
lifetime of the presumed parents,
EXCEPT:
(1) If the Father/Mother DIED DURING the
MINORITY of the CHILD, in w/c
case the latter may FILE ACTION BEFORE the
expiration of 4 YRS. from the attainment of
his majority age.
(2) If AFTER the DEATH of the Father/Mother a
DOCUMENT should appear
of which NOTHING had been HEARD and
in w/c either/ both parents recognize the
child.
In this case, the ACTION must be commenced
w/in 4 YRS. from the FINDING of the document.
Pls. take note of the following NCC provisions which,
although already repealed by the FC, may still be
applicable for lack of substitute provisions on the
matter. [Classmates, these are the provisions na medyo
magulo WON still applicable. Ma’am A said that Art.
285 cited above is still applicable. Commentaries and a
1989 case apply Arts. 278 and 281. Herrera cited Art.
283 (1), but mentioned Art. 449 of RPC, not NCC. So
ano ba talaga kuya? Ma’am A said these are
confusing. Anyway, she took note of said provisions, at
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE
palagay ko, kakalampagin n’ya ang Congress tungkol
dito. By the way, she said the FC was “really
minadali”, so I think that explains everything. Ask na
lang your Persons teacher.)
NCC--Recognition Of Natural Children
276. A NATURAL CHILD may be recognized by
the father and the mother JOINTLY, or
by ONLY ONE of them.
277. In case the recognition is made by ONLY ONE
of the parents, it shall be PRESUMED that
the child is NATURAL, IF the parent
recognizing it had LEGAL CAPACITY
contract marriage at the time of conception.
278. RECOGNITION shall be made in the
 record of birth
 a will
 a statement before a court of record
 or in any authentic writing.
279. A minor who may not contract marriage w/o
parental consent (18-21) CANNOT
acknowledge a natural child
UNLESS
 parent/Guardian APPROVES the
acknowledgment
 recoGnition is made in a WILL
280. When the FATHER or the MOTHER makes
the recognition SEPARATELY,
 HE/SHE shall NOT REVEAL the name
of the person with whom he/she has the
child;
 neither shall he/she STATE any
CIRCUMSTANCE whereby the other
parent may be identified.
281. A child who is OF AGE CANNOT BE
RECOGNIZED without his CONSENT.
When the recognition of a minor DOES NOT
take place
 in a RECORD of BIRTH or
 in a WILL,
JUDICIAL APPROVAL IS NECESSARY.
A minor can in any case IMPUGN the recognition
within 4 YRS. ff. the attainment of his majority.
282. A RECOGNIZED natural child has the right:
(1) To BEAR THE SURNAME of the recognizing
parent
(2) To receive SUPPORT from such parent (291)
(3) To receive in a proper case the hereditary portion
w/c is determined by this code.
INVOLUNTARY RECOGNITION:
283. In any of the ff. cases,
the FATHER is OBLIGED to recognize the
child as his natural child:
(1) In cases of RAPE/ABDUCTION/SEDUCTION,
when the period of the offense coincides more
or less with that of conception;
(2) When the child is in CONTINUOUS
POSSESSION of the STATUS of a CHILD of
to the alleged father by the
 DIRECT ACTS of the latter or
 of his FAMILY
(3) When the child was CONCEIVED during the time
when the mother COHABITED with the
SUPPOSED father.
(4) When the child HAS in his favor ANY
EVIDENCE or PROOF the defendant is
his father.
284. The MOTHER is OBLIGED to recognize her
natural child:
(1) In any of the cases in the preceding article, as
between the child & the mother.
(2) When the BIRTH and the IDENTITY of the child
are CLEARLY PROVEN.
286. The recognition made in favor of a child who
 does not possess all the conditions in Art.
269, or
 in w/c the requirements of the law have not
been fulfilled
may be IMPUGNED by those who are
PREJUDICED by such recognition.
Sec. 2. Contents of petition.-- The petition for
judicial approval of a voluntary recognition of a minor
natural child shall contain the following allegations:
(a) The jurisdictional facts;
(b) The names & residences of the parents
who acknowledged the child, or either of them, and
 their compulsory heirs, and the
 person or persons with whom the child lives;
(c) The fact that the recognition made by the
parent or parents took place
 in a statement before a court of record or
 in an authentic writing,
94
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE
 copy of the statement or writing being attached to
the petition.
Sec. 3. Order for Hearing.-- Upon the filing of
the petition, the court, by an order reciting the purpose
of the same, shall
 fix the date and place for the hearing thereof,
which date shall not be more than 6 months
after the entry of the order, and shall,
moreover,
 cause a copy of the order to be
 served personally or by mail upon the interested
parties, and
 published once a week for 3 consecutive weeks, in
a newspaper or newspapers of general
circulation in the province.
Sec. 4. Opposition.-- Any interested party
must, within 15 days
 from service, or
 from the last date of publication of the order
referred to in the next preceding section,
file his opposition to the petition, stating the
grounds or reasons therefor.
Sec. 5. Judgment.-- If, from the evidence
presented during the hearing, the court is satisfied that
the recognition of the minor natural child was
 willingly and voluntarily made by the parent or
parents concerned, and
 is for the best interest of the child,
 it shall render judgment granting judicial approval
of such recognition.
INVOLUNTARY RECOGNITION of a natural child
may be made:
(a) by an incontrovertible paper written by the parent
expressly recognizing his paternity;
(b) by giving such child the status of a natural child of
the father, justified by the direct act of the father or
his family [Art. 283(2)];
(c) by criminal action for rape, seduction or abduction
(par. 2, Art. 449, RPC)
Note: Maybe we can improve this enumeration of
Herrera by just applying Art. 283, NCC quoted above.
Ma’am A said above enumeration does not make sense.
NOTES: IMPT:
Q: What if the presumed parents recognized the minor
natural child either voluntarily or involuntarily without
judicial approval and afterwards died, should the child,
after reaching majority age, ask for judicial approval of
95
such recognition?
(The book makes distinctions between voluntary and
involuntary recognition and their effects; but the same
are irrelevant (aside from being confusing) because of
the ruling of the SC in Gapusan Chua vs. CA.)
A: NO. Requirement of judicial approval is for the
BENEFIT OF THE MINOR. Lack of said JA cannot
impede the effectivity of the judgment made.
The judicial approval is for the protection of the
minor against any acknowledgment made to his
prejudice. Therefore, the lack or insufficiency of such
approval is NOT a defect available to the recognizing
parent but one which the minor may raise or waive. If
after reaching the age of majority the minor consents to
the acknowledgment, the lack of judicial approval
should make no difference.
Sec. 6. Service of judgment upon civil registrar.--
A copy of the judgment rendered in accordance with
the preceding section shall be served upon the civil
registrar whose duty it shall be to enter the same in the
register.
RULE 106
CONSTITUTION OF FAMILY HOME
Rule 106 is deemed repealed by the provisions of
the Family Code.
FAMILY CODE
ART 152. The family home, constituted jointly by the
husband and the wife or by an unmarried head of a family, is
the dwelling house where they and their family reside, and
the land on which it is situated.
ART. 153. The family home is deemed constituted on a
house and lot from the time it is occupied as a family
residence. From the time of its constitution and so long as
any of the beneficiaries actually resides therein, the family
continues to be such and is exempt from execution, forced
sale or attachment except as hereinafter provided and to the
extent of the value allowed by law.
There is no need to file verified petition for
constitution of family home under FC.
ART. 154. The beneficiaries of a family home are:
The husband and the wife, or an unmarried person who
is the head of a family; and
Their parents, ascendants, descendants, brothers and
sisters, whether the relationship be legitimate or illegitimate,
who are living in the family home and who depend upon the
head of the family for legal support.
ART. 155. The family home shall be exempt from
execution, forced sale or attachment except:
1) For nonpayment of taxes;
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE
2) For debts incurred prior to the constitution of the family
home;
3) For debts secured by mortgages on the premises before
or after such constitution; and
4) For debts due to laborers, mechanics, architects,
builders, materialmen and others who have rendered
service or furnished material for the construction of the
building.
Modequillo vs. Salinas
The debt or liability which was the basis of the
judgment arose or was incurred at the time of the
vehicular accident on 16 March 1976 and the money
judgment arising therefrom was rendered by the
appellate court on 29 January 1988. Both preceded the
effectivity of the FC on August 4, 1988 (not August 3 –
1988 being a leap year).
The contention that it should be considered a
family home from the time it was occupied by
petitioner and his family in 1969 is not well-taken.
Under Art. 162 of the FC, “The provisions…shall
govern existing family residences insofar as said
provisions are applicable.” It does not mean that
ARTS. 152 and 153 have retroactive effect such that all
existing family residences are deemed to have been
constituted as family homes at the time of their
occupation prior to the effectivity of the FC and are
exempt from execution for the payment of obligations
incurred before the effectivity of the FC. Art. 162
simply means that all existing family residences at the
time of the effectivity of the FC are considered family
homes and are prospectively entitled to the benefits
accorded to a family home.
ART. 157. The actual value of the family home shall
not exceed, at the time of its constitution, the amount of three
hundred thousand pesos in urban areas, and two hundred
thousand pesos in rural areas, or such amounts as may
hereafter be fixed by law.
In any event, if the value of the currency changes
after the adoption of this Code, the value most favorable for
the constitution of a family home shall be the basis of
evaluation.
For purposes of this Art., urban areas are deemed to
include chartered cities and municipalities whose annual
income at least equals that legally required for chartered
cities. All others are deemed to be rural areas.
ART. 160. When a creditor whose claim is not among
those mentioned in Art. 155 obtains a judgment in his favor
and he has reasonable grounds to believe that the family
home is actually worth more than the maximum amount fixed
in Art. 157, he may apply to the court which rendered the
judgment for an order directing the sale of the property under
execution. The court shall so order if it finds that the actual
value of the family home exceeds the maximum amount fixed
by law as of the time of its constitution. If the increased
actual value exceeds the max. amount and results from
subsequent voluntary improvements introduced by the
person/s constituting the family home, by the owner/s of the
property, the same rule and procedure shall apply.
96
At the execution sale, no bid below the value
allowed for a family shall be considered. The proceeds shall
be applied first to the amanita mentioned in 157 and to the
liabilities under the judgment and the costs. The excess, if
any, shall be delivered to the judgment creditor.
RULE 107
ABSENTEES
Sec. 1. Appointment of representative. – When a
person disappears from his domicile, his whereabouts
being unknown, and without having left an agent to
administer his property, or the power conferred upon
the agent has expired, any interested party, relative or
friend, may petition the RTC of the place where
absentee resided before his disappearance, for the
appointment of a person to represent him provisionally
in all that may be necessary. [In the City of Manila, the
petition shall be filed in the Juvenile and Domestic
Relations Court.]
This rule is based on:
ART. 381 CC. When a person disappears from his
domicile, his whereabouts being unknown, and without
leaving an agent to administer his property, the judge, at the
instance of an interest party, a relative, or a friend, may
appoint a person to represent him in all that may be
necessary.
This same rule shall be observed when under
similar circumstances the power conferred by the absentee
has expired.
ART. 382. The appointment referred to in 381 having
been made, the judge shall take the necessary measures to
safeguard the rights and interests of the absentee and shall
specify the powers, obligations and remuneration of his
representative, regulating them, according to the
circumstances, by the rules concerning guardians.
Sec. 2 Declaration of absence; who may petition.
After the lapse of 2 years from his disappearance and
without any news about the absentee or since the
receipts of the last news, or 5 years in case the absentee
has left a person in charge of the administration of his
property, the declaration of his absence and the
appointment of a trustee or administrator may be
applied for by any of the ff:
(a) The spouse present;
(b) The heirs instituted in a will, who may present
an authentic copy of the same;
(c) The relatives who would succeed by the law of
intestacy; and
(d) Those who have over the property of the
absentee some right subordinated to the
condition of his death.
This rule is based on the ff:
ART. 384 CC. Two years having elapsed without any
news about the absentee or since the receipt of the last news,
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE
and five years in case the absentee has left a person in charge
of the admin of his property, his absence may be declared.
ART. 385. The ff may ask for the declaration of
absence:
1. The spouse present;
2. The heirs instituted in a will, who may present an
authentic copy of the same;
3. The relatives who may succeed by law of intestacy;
4. Those who may have over the property of the absentee
some right subordinated to the condition of his death.
It is not necessary that a declaration of absence be
made in a proceeding separate from and prior to a
petition for admin. (Reyes vs. Alejandro)
The petition to declare the husband an absentee
and the petition to place the mgt of the conjugal
properties in the hands of the wife could be combined
and adjudicated in the same proceeding. (Daya Maaria
Tol-Noguera v. Villamor)
Sec. 3. Contents of petition. - The petition for the
appointment of a representative, or for the declaration
of absence and the appt of a trustee or an admin, must
show the ff:
(a) The jurisdictional facts;
(b) The names, ages and residences of the heirs
instituted in the will, a copy of which shall be
presented, and of the relatives who would
succeed by the law of intestacy;
(c) The names and residences of creditors and
others who may have any adverse interest over
the property of the absentee;
(d) The probable value, location and character of the
property belonging to the absentee.
Sec. 4. Time of hearing; notice and publication
thereof. – When a petition for the appt of a
representative, or for the declaration of absence and the
appt of a trustee or admin is file, the court shall fix a
date and place for the hearing thereof where all
concerned may appear to contest the petition.
Copies of the notice of the time and place fixed for
the hearing shall be served upon the known heirs,
legatees, devisees, creditors and other interested
persons, at least 10 days before the day of the hearing,
and shall be published once a week for 3 consecutive
weeks prior to the time designated for the hearing, in a
newspaper of general circulation in the province or city
where the absentee resides, as the court shall deem
best.
Sec. 5. Opposition. Anyone appearing to contest
the petition shall state in writing his grounds therefor,
and serve a copy thereof on the petitioner and other
interested parties on or before the date designated for
the hearing.
97
Sec. 6. Proof at hearing; order. - At the hearing,
compliance with the provisions of section 4 of the rule
must first be shown, upon satisfactory proof of the
allegations in the petition, the court shall issue an order
granting the same and appointing the prep, trustee or
admin for the absentee. The judge shall take the
necessary measures to safeguard the rights and interests
of the absentee and shall specify the powers, obli and
remuneration of his rep, trustee or admin, regulating
them by the rules concerning guardians.
In case of declaration of absence, the same
shall not take effect until 6 months after its publication
in a newspaper of general circulation designated by the
court AND in the Official Gazette.
Sec. 7. Who may be appointed. –In the
appointment of a rep, the spouse present shall be
preferred when there is no legal separation, if the
absentee left no spouse, or if the spouse present is a
minor or otherwise incompetent, any competent person
may be appointed by the court.
In case of declaration of absence, the trustee
or admin of the absentee’s property shall be appointed
in accordance with the preceding par.
This is based on Art. 383 of CC. Basically, it says
the same thing. Dapat lang, kaya nga based doon. He!
He!
Sec. 8. Termination of administration. – The
trusteeship or admin of the property of the absentee
shall cease upon order of the court in any of the ff
cases:
(a) When the absentee appears personally or by
means of an agent;
(b) When the death of the absentee is proved and his
testate or intestate heirs appear;
(c) When a third person appears, showing by a
proper document that he has acquired the
absentee’s property by purchase or other title.
In these cases the trustee or admin shall cease the
performance of his office, and the property shall be
placed at the disposal of those who may have a right
thereto.
This is based on Art. 389 of the CC.
Declaration of Absence is Unnecessary where there
are no properties
The need to have a person judicially declared
an absentee is when
 he has properties which have to be taken care of or
administered by a rep appointed by the Court
 his wife is asking the court that the admin of all
classes of property in the marriage be transferred
to her
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE
 the spouse of the absentee is asking for separation
of property.
The petition to declare the husband an absentee and the
petition to place the management of the conjugal
properties in the hands of the wife may be combined
and adjudicated in the same proceedings.
No independent action for Declaration of
Presumption of Death
The disputable presumption established by the rule of
evidence that a person not heard from in seven years is
dead may arise and be invoked either in an action or in
a special proceeding, which is tried or heard by, and
submitted for decision to, a competent court.
Independently of such an axn or proc, the presumption
of death cannot be invoked nor can it be made the
subject of an action or spec proc. (In re Nicolai
Szatrow)
Prof. Avena: This is a rebuttable presumption
established by the rules of evidence so you don’t have
to go to court and file an action or spec proc simply for
the purpose of securing it per
se.
To illustrate: If you are a beneficiary of an insurance
policy and the insured has been absent for at least 7
years (plus no news of his whereabouts), you can file
an action for the collection of the proceeds. In so
doing, you have in your favor the disputable
presumption of the insured’s death. You need not go
(and besides you cannot do this) to court to file an
independent action for the declaration of the insured’s
death. (Sana naintindihan niyo iyong pagkakaintindi ko
sa sinabi ni Ma’am – Fritz)
EXCEPTION: The need for declaration of
presumptive death for purposes of remarriage. This is
based on Art. 41 of the FC. Otherwise, the subsequent
marriage shall be null and void.
REQUISITES:
 The prior spouse had been absent for four
consecutive years and
 the spouse present had a well-founded belief that
the absent spouse was already dead.
 In case of disappearance where there is danger of
death under Art. 391 CC, an absence of only two
ears shall be sufficient.
This provision is intended to protect the present
spouse for a criminal prosecution for bigamy because
with such judicial declaration, good faith of the present
spouse is established.
98
ABSENT SPOUSE
This means that the other spouse has been
missing for at least four years, it being unknown
whether or not he or she is still alive, and the present
spouse having a well-founded belief that the missing
spouse is already dead.
The period of 4 years is reduced to 2 under the
ff circumstances (Art. 391 CC)
(a) The missing person was on board a vessel lost
during a sea voyage, or an aeroplane which is
missing;
(b) The missing person was in the armed forces and
had taken part in war; or
(c) The missing person was in danger of death under
other circumstances.
In the above case, the 2-yr period is computed
from the occurrence of the event from which death is
presumed.
 Vessel – all kinds of watercraft
 Aeroplane – all kinds of aircraft
 Taking part in war – includes all military
operations or undertaking involving armed fighting
and does not only apply to soldiers but also to
those employed in the armed forces like nurses and
doctors, reporters and cameramen.
 In danger of death – events as earthquakes, fires,
explosions, etc.
Presumption of Death must yield to preponderance of
evidence
There are certain circumstances where a
person was already considered dead without waiting
for the period to expire. (Eastern Shipping Lines v.
Lucero)
***Caveat: I’m typing this from memory dahil
nagkataong this was included in my part sa evidence.
In this case, the ship where the person
presumed dead was on board sunk due to storm. In
fact, nakita pa nga nila sa may coast iyong wrecked
parts ng ship. So sabi ng SC, no need to wait for the
expiration of the 4-yr period (this was not for
subsequent marriage) dahil by preponderance of
evidence, the circumstances sufficiently show that the
person may be considered dead.
SUMMARY OF JUDICIAL PROCEEDINGS IN
THE FAMILY LAW
Art. 238. Until modified by the SC, the procedural rules
in this title shall apply in all cases provided for in this Code
requiring summary court proc. Such cases shall be decided in
an expedition manner without regard to technical rules.
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE
Characteristics of Summary Proceedings in the FC
(1) The pet shall be verified, to assure its
truthfulness.
(2) Notice of the filing of the pet be sent to resp at
his last known address, as part of due process.
(3) No periods set; it is up to the judge to det the
period within which the resp shld answer the
petition and the hearing thereof, which shld be
very short, considering na summary nga.
(4) There is a preliminary conference wherein
lawyers are excluded.
(5) The appearance of the trial fiscal of the court is
not required. (Baka absent or unprepared pa.)
(6) The prelim confab should be conducted
personally by the judge in the nature of an
inquisitorial hearing. (Q & A)
(7) The proceedings can be decided on the basis of
affidavits or other documentary evidence. Oral
testimonies will be required only when necessary
and at the discretion of the court.
(8) Case shall be decided in the most expeditious
manner, without regard to technical rules.
(9) Judgment shall be immediately final
executory.
APPLICABILITY OF PROCEDURAL RULES
The rules of summary procedure shall apply to the ff:
(1) Art. 100 par (2) – separation in fact between H
and W under the regime of ACP and where the
consent of one spouse to any transaction of the
other is required by law.
(2) Art. 127 (2) – same as Art. 100 but under the
regime of CPG.
(3) Art. 41 – action for declaration of the
presumptive death of an absent spouse believed
to be dead.
(4) Art. 51 – delivery of presumptive legitimes by
means of a mutual agreement requiring jud’l
approval;
(5) Art. 69 – disagreement in the fixing of family
domicile;
(6) Art. 73 – objection by one spouse to the exercise
by the other spouse of any legit prof, occupation,
bus or activity;
(7) Art. 96 – disagreement in the joint admin and
enjoyment of the community prop;
(8) Art. 124 – disagreement in the joint admin and
enjoyment of ACP;
(9) Art. 217 – entrusting of parental authority over
foundlings, abandoned, neglected or abused
children and other children similarly situated to
heads of children’s homes, orphanages and
similar institutions duly accredited by the gov’t;
(10) Art. 225 – fixing of the bond of the parents.
SEPARATION IN FACT BETWEEN HUSBAND
AND WIFE
Pls. See 239-253 of the FC
Unless Congress would decide to re-create the
former Juvenile and Domestic Relations Courts or
family courts which were abolished by BP 129, all proc
to be filed under the FC would be cognizable by the
branches of the RTC designated by the SC to handle
exclusively juvenile and domestic relations cases, and
in places where no designation is made, by the RTC of
the proper venue of the case. Venue shall be the place
of residence of either spouse.
and
Claims for Damages not covered by Summary
Procedure
Claims for damages cannot be litigated in the
same proceedings bec. Such claims will necessarily
entail delay. Independent or separate cases shall
therefore be necessary for establishing and enforcing
claims for damages.
Due Process to Be Observed
Def. spouse shall be duly notified and
furnished a copy of the pet at his last known address
and shall be given the opportunity to answer the same
or to show cause why the pet should not be granted.
Otherwise, void for lack of DP.
Prelim Conference; No Lawyers
Shall be conducted by the judge personally and not
thru Clerk of Court or a Commissioner. Counsel shall
not assist the parties at this stage.
99
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE

Non-appearing party shall be compelled to appear; allow correction of more than mere harmless clerical
Failure to appear despite efforts-Ex-parte proc errors.
authorized
Distinction bet. R103 and R108
The court shall require attendance if possible.
If despite such efforts, the party still does not appear—
ex-parte proceedings. The court shall render decision R103 R108
on the basis of affidavits, documentary evidence or oral change of name only all cancellation or
testimonies. correction of entries
the entry is correct but there is a mistake which
Judgment Immediately Final and Executory you want to change it you want to correct

Not appealable just like a decision based on a Civil Registrar not a party Civil Registrar is an
compromise agreement. The decision can be Indispensable party.
questioned in the ff cases: Otherwise, null and Void.
(1) By a special civil action for certiorari on grounds REASON: interested
of grave abuse of discretion, excess of juris or party in Protecting
lack of juris committed by the court; integrity Of public
(2) By annulment of decision based on lack of juris documents
or extrinsic fraud.

**If both reliefs are to be sought in the same

RULE 108 proceedings all the requirements of R103 and 108 must
CANCELLATION OR CORRECTION OF be complied with.
ENTRIES IN THE CIVIL REGISTRY
Proceeding when error is clerical or substantive

Sec. 1 Who may file petition. Any person  Clerical – the procedure is summary.
interested in any act, even, order or decree concerning  Substantive – the procedure is adversary.
the civil status of persons which has been recorded in
the civil register, may file a verified petition for the
cancellation or correction of an entry relating thereto, Sec. 2 Entries subject to cancellation or
with the RTC of the province where the corresponding correction. – Upon good and valid grounds, the ff.
civil registry is located. entries in the civil register may be cancelled or
corrected:
(a) births;
(b) marriages;
(c) deaths;
Role of the Court (d) legal separation;
(e) judgments of annulments of marriage;
The crt’s role in hearing the petition to correct (f) judgments declaring marriages void from the
certain entries in the civil registry is to ascertain the beginning;
truth about the facts recorded therein. Reason: Truth (g) legitimations;
(h) adoptions;
is best ascertained or approximated by trial conducted (i) acknowledgments of natural children;
under the adversary system. (j) naturalization;
(k) election, loss or recovery of citizenship;
Proceedings for the correction of erroneous (l) civil interdiction;
entry should not be considered as establishing one’s (m) judicial determination of filiation;
status in a legal manner conclusively beyond dispute. (n) voluntary emancipation of a minor; and
Art. 410 CC provides, “..the books making up the civil (o) changes of name.
register and all documents relating thereto…shall be
prima facie evidence of the facts therein contained.” R108 covers:
1) Correction of innocuous or clerical errors apparent
The correction shld not imply a change of on the facts of the record and capable of being
status but a mere rectification of error to make the corrected by mere reference to it, e.g.,
matter corrected speak for the truth. There is therefore misspellings.
no increase or diminution of substantive right, as is the 2) Correction of substantial errors provided
basis for holding that R108 would be unconsti if held to proceedings is adversary, e.g. citizenship.

100
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE
Appropriate Adversary Proceedings
One having opposing parties; contested, as
distinguished from an ex parte application, one which
the party seeking relief has given legal warning to the
other party, and afforded the latter an opportunity to
contest it.
Persons who must be made parties
1) Civil Registrar;
2) All persons who have or claim any interest which
would be affected thereby.
 These are also the persons entitled to oppose the
petition.
Upon the filing of the petition, it becomes the duty of
the court to:
1) issue an order fixing the time and place for the
hearing of the petition, and
2) cause the order for hearing to be published once a
week for 3 consecutive weeks in a newspaper of
gen circulation in the province.
Sec. 3. Parties. When cancellation or correction
of an entry in the civil register is sought, the civil
registrar and all persons who have or claim any interest
which would be affected thereby shall be made parties
to the proceeding.
Sec. 4. Notice and Publication. Upon the filing
of the petition, the court shall, by an order, fix the time
and place for the hearing of the same, and cause
reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the
order to be published once a week for 3 consecutive
weeks in a newspapers of gen circulation in the
province.
Sec. 5. Opposition. The civil registrar and any
person having or claiming any interest under the entry
whose cancellation or correction is sought may, within
15 dys from notice of the petition, or from the last date
of publication of such notice, file his opposition
thereto.
ADVERSARY PROCEEDINGS
1) When the petition is filed either by the civil
registrar or any person having a claim…and the
opposition is actively prosecuted.
2) When all relevant facts have been fully and
properly developed, where opposing counsel have
been given opportunity to demolish the opposite
party’s case, and where the evidence has been
thoroughly weighed and considered.
3) When the opposition is filed either by the civil
registrar or any person having or claiming any
interest…
101
Sec. 6. Expeditious proceedings. The court in
which the proceeding is brought may make orders
expediting the proceedings, and may also grant prelim
injunction for the preservation of the rights of the
parties pending such proc.
Sec. 7 Order. After hearing, the court may either
dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a
certified copy of the judgment shall be served upon the
civil registrar concerned who shall annotate the same in
his record.
RULE 109
APPEALS IN SPECIAL PROCEEDINGS
Section 1. Orders or judgments from which
appeals may be taken. An interested person may
appeal in special proceedings from an order or
judgment rendered by a RTC or a Juvenile and
Domestic Relations Court, where such order or
judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a
deceased person, or the distributive share of
the estate to which such person is entitled;
(c) Allows or disallows, in whole or in part, any
claim against the estate of a decease person, or
any claim presented on behalf of the estate in
offset to a claim against it;
(d) Settles the account of an executor, admin,
trustee or guardian;
(e) Constitutes, in proceedings relating to the
settlement of the estate of a decease person, or
the admin of a trustee or guardian, a final
determination in the lower court of the rights
of the party appealing, except that no appeal
shall be allowed from the appointment of a
special admin; and
(f) Is the final order or judgment rendered in the
case, and affects the substantial rights of the
person appealing, UNLESS it be an order
granting or denying a motion for a new trial or
for recon.
Prof. Avena:
Sec. 1 (f). The unless clause here simply means that in
these two instances, you go on appeal immediately.
 Enumeration is not exclusive, e.g., approval of
bond, declaration of incompetency for purposes of
guardianship.
Mode of Appeal
Spec Pro- The period of appeals is 30 days, a
record on appeal being required.
Exc: Habeas corpus cases – 48 hours.
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE
Appeals in Liquidation Proceedings against Insolvent
Corp is by Record on Appeal
Since liquidation proc against an insolvent
corp is a spec pro, the appeal is by record on appeal.
REASON: several claims are actually separate ones
and a decision or final order with respect to any claim
can be appealed. Necessarily the orig rec on appeal
must remain in the TC where other claims may still be
pending.
Who May Appeal -- Interest Person
A stranger having neither material nor direct
interest in a testate or intestate has no rt to appeal from
any order issued herein.
May appeal only when the order, decree,
judgment constitutes a final determination of the rights
of the appellants and the appeal shall affect every
order, decree or judgment appealed from, and not
merely the interest which the appellants may have
therein.
*Prof. Avena: May sometimes be interlocutory in
nature if we were to consider it under civpro but it is
final in the sense that it disposes of rights and obli of
parties, e.g. declaration of incompetency –You can
appeal na although if viewed under civpro, hindi pa ito
final dahil wala pang na-aapoint na guardian. In other
words, hindi pa tapos iyong guardianship proc.
(Siyempre, hindi ganito iyung pagkakasabi-Fritz)
The fact that the admin did not prosecute the
appeal does not bar the lawful heirs of the deceased
from doing so. REASON: Lawful heirs are considered
interest party.
The validity of a judgment or order of a court
entered in a spec pro cannot be assailed collaterally
unless the ground for the attack is lack of juris or fraud
by the party sought to be charged with it in its
procurement.
If the nullity of the judgment or order assailed
is for failure to comply with the statutory req. which
must be followed before such J/O may be entered, the
remedy is to appeal from such, or if final, to apply for
relief under R38.
In a specpro, appeals may be taken at various
stages of the proceedings so song as the order, decree
or judgment constitutes a final determination of the
rights of the parties so appealing.
A probate decree finally and definitively
settles all questions concerning capacity of the testator
102
and the proper execution and witnessing of his last will
and testament, irrespective of whether its provisions are
valid. Appealable under Sec. 1 (a).
Certiorari and Mandamus not A Substitute for Appeal
If an interested party lost his remedy by appeal due
to his own neglect, he cannot now seek redress by
certiorari and mandamus, it not appearing that the
lower court has acted without juris.
GENERAL PRINCIPLE: In the absence of statutory
provisions directing otherwise, any order, judgment or
decree of the probate court capable of being enforced,
or taking effect without further order, may be appealed
from; and that no action of the probate court can be
appealed from which requires a subsequent order or
judgment to give it effect. e.g., An order directing one
to appear and submit to an examination touching any
property in his possession belonging to an intestate,
otherwise, he shall be committed to prison, is
APPEALABLE.
In this case, said person is legally interested in
the order, thus entitled to appeal. He need not be
legally interested in the intestate proceedings proper.
OTHER INSTANCES WHERE APPEAL IS
AVAILABLE
1. Appeal by Surety
When a surety of an exec/admin of the estate
of a deceased person is admitted as a party to an acctg
made by such exec/admin under R. 85 Sec. 11, he may
be allowed to appeal from any order of the court
approving or disapproving such acctg.
2 Appeal by Heir from Money Claim
1) An heir, legatee or devisee who under R86 S11 has
been served with notice as to a money claim
against the estate may be allowed to appeal from
an order of the ct. approving such claim.
2) A creditor who under R87 S10 is allowed by the ct
to bring an action for recovery of property may be
allowed to appeal.
3) A spec admin may be allowed to appeal from an
order disallowing a will.
3. Order for License to Sell
An order for license to sell real estate in admin
proc is appealable.
4. Order Against Bond
Appealable. REASON: Such order
constitutes a definite pronouncement as relates to his
bond and to his movable property of which he will be
deprived. Thus, he can appeal.
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE
5. Order to contract Obligation
Appealable. REASON: It affects substantial
rights of the parties and may unnecessarily prolong the
admin of the intestate estate to the detriment of the
heirs.
6. Order Appointing Admin
Appealable. This is a final determination of
the rts of the parties thereunder.
7. Order Annulling Appointment of Guardian
Appealable. An order refusing to permit a
person to intervene in a probate proceeding where he
claims to have acquired the interest of one of the heirs
of the deceased is likewise appealable.
8. Order Removing a Guardian
Appealable. Constitutes a final determination
of his rights. An order declaring a guardian
incompetent is likewise appealable.
9. Inventories and Claims against the Estate
Re: inventories, claims against the estate and
sale of the property of the decedent are appealable.
10. Person declared incompetent
An order declaring one a spend thrift and
mentally and physically incompetent is appealable.
11. Order refusing to permit a party to intervene
Appealable if the party seeking to intervene is one
who claims to have acquired the interest of one of the
heirs of the estate.
Orders that are not appealable
1. Order directing admin to take action to recover
amount due to the estate; interlocutory.
This is purely interlocutory and cannot be the
basis of an appeal. Why? Ewan ko. But I think it’s
probably because of the application of the gen
principle.
1. Order made in admin proc relating to inclusion or
exclusion of items of property in the inventory of
exec/admin, interlocutory
This is purely discretionary, provisional and
interlocutory. Subject to modification or change at any
time during the course of admin proc. Not conclusive
of the rts of any one, and the order is not final.
2. Order Appointing Special Admin/Receiver
103
Merely incidental to judicial proceedings. The ct
making the appt retains control over it and that it may
modify, rescind, or revoke the same on sufficient
grounds at any time before final judgment.
Sec. 2. Advance Distribution in spec pro.
Notwithstanding a pending controversy or appeal in
proceedings to settle the estate of a decedent, the ct
may, in its discretion and upon such terms as it may
deem proper and just, permit that such part of the estate
as may not be affected by the controversy or appeal be
distributed among the heirs or legatees upon
compliance with the conditions set forth in R. 90 of
these rules.
Fritz, sana naman ay hindi na nasayang ang pagod mo.
GOOD LUCK, 3-A!!!  Aileen, Minnie & Ella
Appendix to Minnie’s Habeas Corpus Opus
By: The Regressing Whimsyland Kids Lourie, Karreen & Jig
+ Party Pooper Ella
Habeas Corpus # 9
Moncupa v. Enrile
Facts: Moncupa et al were arrested & detained. He was
alleged to be a National Democratic Font staff member. A
Presidential Commitment Order (PCO) was issued vs. them.
After 2 separate investigations, it was ascertained that
Moncupa was not a member of any subversive organization.
Both investigators recommended his prosecution only for
illegal possession of firearms & subversive documents. The
petitioners’ motions for bail were deined. Respondents claim
that the privilege of the writ of HC had been suspended as to
Moncupa & filed a MTD stating “Since the pet. is free & no
longer under the custody of the resps., the present petition for
HC may be deemed moot & academic as in similar cases.”
Held: Moncupa may have been released fr. his detention
cell, but the restraints attached to his temporary release
preclude freedom of action & under the Villavicencio v.
Lukban rule warrant the Court’s relieving him of such
restraints as may be illegal. It is not physical restraint alone
w/c is inquired into by the writ of habeas corpus.
The principle is clear. A release that renders a pet.
for a WHC moot & academic must be one w/c is free fr.
involuntary restraints. Where a person continues to be
unlawfully denied one or more of his constitutional freedoms,
where there is present a denial of due process, where the
restraints are not merely involuntary but appear to be
unnecessary, & where a deprivation of freedom originally
valid has, in the light of subsequent dev’ts., become arbitrary,
the person concerned or those applying in his behalf may still
avail themselves of the privilege of the writ.
Toyoto, et al. V. Ramos
Facts: Petitioners temporarily released fr. detention. So,
does writ lie?
Held: Ordinarily, a pet. for HC becomes mute & epidemic
(he he) when the restraint on the liberty of the pets. Is lifted
either temporarily or permanently. But the instant case
presents a diff. situation. The Q to be resolved is whether the
State can reserve the power to re-arrest a person for an
offense after a court of competent jurisdiction has absolved
him of the offense. Such a reservation is repugnant to the
government of laws & not of men principle. Under this
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE
principle the moment a person is acquitted on a crim charge
he can no longer be detained or re-arrested for the same
offense.
Alimpoos v. CA
Facts: Reynaldo Mosquito has been accused of Robbery w/
less Serious Physical Injuries. He was detained by virtue of a
warrant of arrest which was issued without the observance
of the legal requirements for the issuance thereof. Mosquito
filed a petition for Habeas Corpus before the Trial Court.
Mosquito named as defendants in the case the Prov. Fiscal
and the private offended parties. he also filed a claim for
damages premised on Arts. 32 (4) and other applicable
provisions of the Civil Code.
Issues:
1. WON the writ of Habeas Corpus if the proper remedy for
Mosquito?
2. WON damages may be awarded in a Habeas Corpus case?
3. WON private offended party may take part in the case?
Held:
1. The WHC is not the proper remedy. When a warrant of
arrest is being assailed for improper preliminary
investigation, the remedy is a petition to quash the warrant of
arrest or petition for reinvestigation of the case. It is the gen.
rule that a HC shld. not be resorted to when there is another
remedy available.
2. No. Damages cannot be awarded. The sole function of
the writ is to relieve fr. unlawful imprisonment and ordinarily
it cannot be properly used for another purpose.
3. While the issuance of the writ connotes the
commencement of a civil action, the proceedings for HC is
technically not yet a suit bet. private parties. The proper
party is the Chief of Police or the person having the accused
in detention and not the private offended party. It is also only
the fiscal who may appeal the order granting the writ as
mandated by Sec. 19 RULE 41 of the ROC.
Salvana v. Saliendra
Facts: Salvana and Saliendra are the parents of 15 year old
Felicisima Salvana. The minor is presently in the custody of
a justice of peace. The parents filed a petition for WHC to
regain parental authority over the minor. The pet. was denied
on the ground that the parents are guilty of abusing their child
by forcing her to marry another against the her wishes.
Issue: WON WHC should issue?
Held: It should issue. A WHC is the proper legal remedy
to enable parents to regain the custody of a minor daughter
even though the child is in custody of a 3rd person of her
OWN FREE WILL. Neither the fact that the parents sought
to compel her to marry against her wishes a legal ground for
depriving parents their parental authority over the child as to
deny them the right.
SUAREZ VS. CA
Facts: Respondent Manese filed a petition for writ of HC
vs. petitioner Renato Suarez, his mother & sister. She filed a
motion to dismiss without prejudice to her right to file
another action for custody of minor, contending that the issue
as to who has rightful custody of the child could be fully
adjudicated in another action and not in the present action for
HC. TC granted motion but with prejudice.
Issue: WON order of dismissal with prejudice is res
judicata to present action for custody of minor & support
Held: The order of dismissal cannot be considered as a
valid adjudication on the merits which would serve as a bar to
the second action for custody of minor. TC dismissed the
case without stating the reasons or the basis therefore,
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contrary to the constitutional mandate that decisions rendered
by the court must clearly & distinctly state the law & facts on
which it is based. It is worthy to note though that the ground
upon which the motion to dismiss was filed was erroneous
since the question as to who shall have custody of the child
can be sufficiently resolved in the petition for writ of HC
pursuant to Rule 102, ROC.
The controversy in the instant case involves a
litigation initiated by the natural mother over the welfare &
custody of her child, in which the State has a paramount
interest. The fundamental policy in the Constitution
promoting & protecting the welfare of children should not be
disregarded by a mere technicality in resolving disputes
which involve the family & youth.
GALVEZ VS. CA
Facts: Three separate information (1 homicide, 2
frustrated homicide) were filed vs. Galvez (incumbent mayor
of one of the towns in Bulacan ... Peter, don’t follow his
footsteps, OK?) for the alleged shooting of the Vinculados.
Said infos. were later withdrawn in a Motion by the
prosecutor, but on the same day, filed four separate
information (same three plus illegal possession of firearms).
Judge ordered the arrest of the petitioners since no bail was
recommended.
Issue: WON petition for HC was properly filed together
with the present petition for certiorari and mandamus
Held: Writ of HC and certiorari may be ancillary to each
other where necessary to give effect to the supervisory
powers of the higher courts. The writ reaches the body &
jurisdictional matters while certiorari reaches the record. But
HC does not lie where pet. has the remedy of appeal or
certiorari because it will not be permitted to perform the
functions of a writ of error or appeal for the purpose of
reviewing mere errors or irregularities in the proceedings of a
court having jurisdiction over the person & subject matter.
Writ cannot be granted in the case at bar since
petitioners failed to adduce any justification or exceptional
circumstances which would warrant the grant of such writ.
HC is not ordinarily available in advance of trial to determine
jurisdictional questions that may arise. In the absence of
exceptional circumstances, the orderly course of trial should
be pursued & the usual remedies exhausted before the writ
may be invoked. Petition for HC is not the appropriate
vehicle for asserting a right to bail or vindicating its denial.
PEOPLE VS. FIGUEROA
FACTS: The accused were found by the Philippine Navy off
the province of Palawan with untaxed blue-seal cigarettes in
their possession. They were brought to Manila and
investigated. During this preliminary investigation, each of
the accused executed affidavits and waived their rights under
Art. 125 of the RPC (arbitrary detention). On
recommendation of the Manila fiscal, the accused were
brought back to Palawan and another preliminary
investigation was held, allegedly for the purpose of
“affirm(ing) the truth of the sworn statements.” This time,
however, the accused declined counsel and readily affirmed
their previous affidavits. Their counsel filed a MTQ, claiming
that the information was filed without a preliminary
investigation and, if there was, it was held in Manila and not
Palawan where the alleged crime was committed. The lower
court granted the MTQ, holding that the preliminary
investigation was conducted “hurriedly”.
ISSUE: WON the trial court correctly dismissed the
information based on the lack of preliminary investigation.
HELD: NO. Assuming that the trial court felt that the
accused should have been given more “ample chance and
opportunity to be heard in the preliminary investigation”,
what it should have properly done was not to dismiss the
information but to hold the case in abeyance and conduct its
 A M I S T A D : We live to serve!!! (A ’99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza
With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -- FRITZIE

own investigation or require the fiscal to hold a
reinvestigation. The absence of such investigation did not
impair the validity of the information or otherwise render it
defective. Much less did it affect the jurisdiction of the lower
court over the case.
ENRILE VS. SALAZAR
FACTS: Juan Ponce Enrile, Gregorio Honasan, and the
Panlilio spouses were arrested by PNP agents on a warrant of
arrest issued by Judge Salazar. They were denied bail, none
being recommended in the information which charged them
with the crime of rebellion with murder and multiple
frustrated murder allegedly committed during the failed coup
attempt of Dec. 1990. Enrile and the Panlilios filed this
petition for habeas corpus, invoking denial of the
constitutional right to bail.
ISSUE:
WON a petition for habeas corpus is the
appropriate vehicle for asserting a right to bail or vindicating
its denial.
HELD:
NO. The criminal case before Judge Salazar was
the normal venue for invoking the petitioner’s right to have
provisional liberty pending trial and judgment. The correct
course was for petitioner to invoke that jurisdiction by filing a
petition to be admitted to bail, claiming a right to bail per se
by reason of the weakness of the evidence against him. Only
after that remedy was denied by the trial court should the
review jurisdiction of the Supreme Court have been invoked,
and even then, not without first applying to the Court of
Appeals if appropriate relief was also available there. The
Court will no longer countenance pleas like the present that
clearly short-circuit the judicial process and burden it with
the resolution of issues properly within the original
competence of the lower courts.
PAREDES VS. SANDIGANBAYAN
FACTS: A criminal complaint was filed against Governor
Paredes for violation of the Anti-Graft and Corrupt Practices
Act. A preliminary investigation was held but the summons
for Paredes to appear therein did not reach him. An
information was subsequently filed and a warrant of arrest
issued against Paredes. He now petitions for habeas corpus on
the ground that the preliminary investigation was invalid and
that the offense has prescribed.
ISSUE: WON the circumstances constitute valid grounds for
the issuance of a writ of habeas corpus.
HELD: NO. The absence of a preliminary investigation does
not affect the court’s jurisdiction over the case nor impair the
validity of the information or otherwise render it defective.
The remedy of the accused in such a case is to call the
attention of the court to the lack of a preliminary
investigation and demand, as a matter of right, that one be
conducted. The court, instead of dismissing the information,
should merely suspend the trial and order the fiscal to
conduct a preliminary investigation.
Integrated Bar of the Phils. Davao Chapter. May picture pa
kami w/ him.)
Facts: Atty. Ilagan was arrested in Davao City & detained
on the basis of a mission order allegedly issued by the
Ministry of Nat’l. Defense. He was visited by 15 lawyers fr.
IBP Davao Chapter. One of the visitors was also arrested &
detinaed on the basis of an unsigned MO. After several days,
another IBP member was arrested. Petitioners argue that the
arrests were illegal & violative of the Consti, since arrests
cannot be made on the basis of mission orders. Resps.
Answered that the Writ was suspended as to them by virtue
of Proc. #2045-A.
Held: IF the detained attys. Question their detention bec. of
improper arrest, or that no prelim inv has been conducted, the
remedy is not a pet. for a writ of HC but a Motion for the TC
to quash the Warrant of Arrest, &/or the info on grounds
provided by the rules or to ask for an investigation/
reinvestigation of the case.
This pet. is now mood & academic bec. of criminal
charges for rebellion filed vs. the lawyers.
Luna v. Plaza
Facts: Supporting the complaint for murder were sworn
statements of prosecution witness in the form of Q & A taken
by the PC investigator, & subscribed & sworn to before the
resp. Judge at the time of filing comp. Judge read to the
proecution witnesses the Q & A. This was how he examined
them. The latter declared that their answers were true, freely
& voluntarily made, & that they fully understood the Q & A
& were willing to sign their respective affidavits. Judge
issued warrant of arrest. Pet. filed writ for certiorari on the
ground that he was deprived of liberty w/o due process since
the imprisonment & detention was the result of a WOA
issued by resp. judge in violation of law since the exam was
not reduced to in writing in the form of searching Q & A.
Judge claims substantial compliance.
Held: There was substantial compliance. The existence of
probable cause depends to a large degree upon the finding or
opinion of the judge conducting the exam. RA 3828 does not
prohibit the Mun Judge fr. adopting the questions asked by
the previous investigator.
The term “searching Q & A” means only taking
into consideration the purpose of the prelim exam, w/c is to
determine “whether there is a reasonable ground to believe
that an offense has been committed & the accused is probably
guilty thereof so that a warrant of arrest may be issued & the
accused be held for trial, such Q’s having tendency to show
the commission of the crime & the perpetrator.

The defense of prescription of the offense should be

pleaded in the criminal action, otherwise it would be deemed
waived. It is a proper ground for a motion to quash which
should be filed before the arraignment of the accused for
whether the crime may still be prosecuted and penalized
should be determined in the criminal case not in a special
proceeding of habeas corpus. All questions which may arise
in the orderly course of a criminal prosecution are to be
determined by the court to whose jurisdiction the defendant
has been subjected by the law, and the fact that a defendant
has a good and sufficient defense to a criminal charge on
which he is held will not entitle him to his discharge on
habeas corpus.
ILAGAN V. ENRILE
(When we went to Davao, Judge Quitain, the Daddy of
Mamay, introduced as to Atty. Ilagan who was then pres. of

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