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TABLE OF CONTENTS N. Search and Seizure ....................... 86

GENERAL PRINCIPLES .............................. 2 O. Provisional Remedies in Criminal
JURISDICTION ............................................. 3 Cases 90
CIVIL PROCEDURE ..................................... 7 EVIDENCE ................................................... 91
A. General Provisions .......................... 7 A. General Principles ......................... 91
B. Actions ............................................ 7 B. Judicial Notice and Judicial
C. Cause of Action .................................. 7 Admissions ............................................... 93
D. Parties to Civil Actions .................... 9 C. Object (Real) Evidence ..................... 94
E. Venue ............................................... 10 D. Documentary Evidence .................. 96
F. Pleadings .......................................... 10 E. Testimonial Evidence ........................ 97
G. Summons ...................................... 14 F. Offer and Objection ......................... 100
H. Motions.......................................... 16 LEGAL ETHICS ......................................... 101
I. Dismissal of Actions.......................... 17 I. Qualifications of new lawyers (including
J. Pre-Trial ............................................ 18 reacquisition of citizenship) .................... 101
K. Intervention ....................................... 18 II. Code of Professional Responsibility
L. Subpoena ......................................... 18 (including Lawyer’s Oath) ....................... 102
M. Computation of Time ..................... 18 JUDICIAL ETHICS .................................... 112
N. Modes Of Discovery ...................... 18 III. Disqualifications/Inhibitions for
O. Trial ............................................... 19 Judges .................................................... 112
P. Demurrer to Evidence ....................... 19 IV. Direct and Indirect Contempt ....... 115
Q. Judgments and Final Orders ......... 19 PRACTICAL EXERCISES ......................... 115
R. Post-Judgment Remedies ............. 22
S. Execution, Satisfaction, and Effect of
Judgments ............................................... 29
SPECIAL CIVIL ACTIONS.......................... 33
A. Nature of Special Civil Actions ...... 33
B. Distinguish Between Ordinary Civil
Actions ..................................................... 34
C. Jurisdiction and Venue ..................... 34
D. Certiorari, Prohibition, and
Mandamus ............................................... 34
E. Quo Warranto ................................... 35
F. Expropriation..................................... 36
SMALL CLAIMS ......................................... 37
SPECIAL PROCEEDINGS ......................... 38
A. Writ of Habeas Corpus .................. 38
B. Writ of Habeas Data ...................... 39
C. Writ of Amparo .................................. 39
D. Rules of Procedure for
Environmental Cases ............................... 49
CRIMINAL PROCEDURE ........................... 50
A. General Matters ............................ 50
B. Prosecution of Offenses ................ 52
C. Prosecution of Civil Action ................ 55
D. Preliminary Investigation ............... 58
E. Arrest ................................................ 63
F. Bail .................................................... 68
G. Arraignment and Plea ................... 69
H. Motion to Quash ............................ 71
I. Pre-Trial ............................................ 72
J. Trial ................................................... 74
K. Judgment .......................................... 79
L. New Trial or Reconsideration ........... 80
M. Appeal ........................................... 82
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REMEDIAL LAW
PRE-WEEK

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courts may deny

CIVIL PROCEDURE retroactive
application of
procedural rules
GENERAL PRINCIPLES in the event that
to do so would be
infeasible or
Q: Distinguish between substantive law and would do
remedial law. [ D V G B ] injustice;
A: 3. If to do so would
involve intricate
SUBSTANTIVE REMEDIAL LAW problems of due
LAW process or impair
the
Part of the law which Prescribes the
independence of
creates, defines or methods of enforcing the courts [Tan
regulates rights those rights and Jr. v. CA, G.R.
concerning life, obligations created No. 136368
liberty or property by substantive law (2002)]
[Primicias v. [Bustos v. Lucero,
Ocampo, G.R. No. L- G.R. No. L-2068 Enacted by The Supreme Court
6120 (1953)] or the (1948)]. Congress is expressly
powers of agencies empowered to
or instrumentalities promulgate
for the administration procedural rules
of public affairs,
which when violated
gives rise to a cause Q: What is the extent of the rule-making
of action [Bustos v. power of the Supreme Court? [CPPP APIL]
Lucero, G.R. No. L- A: The SC shall have the power to
2068 (1948)]. promulgate rules concerning:
1. The protection and enforcement of
Creates vested Does not create constitutional rights;
rights vested rights 2. Pleading, practice, and procedure in all
courts;
Generally applied As a general rule, 3. Admission to the practice of law,
prospectively may be applied 4. The Integrated Bar, and
retroactively 5. Legal assistance to the underprivileged.

Exceptions: The SC has the sole prerogative to amend,

1. The statute itself repeal, or even establish new rules for a
expressly or by more simplified and inexpensive process, and
necessary the speedy disposition of cases. [Neypes v.
implication CA, G.R. No. 141524 (2005)]
provides that
pending actions Q: Discuss the Doctrine of Hierarchy of
are excepted Courts and its exceptions.
from its A: General Rule: A case must be filed with the
operation; lowest court possible having the appropriate
2. Under jurisdiction.
appropriate
circumstances,

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Exception: The Supreme Court may disregard

hierarchy of courts if warranted by the following
reasons: [ SPIN CG ]
JURISDICTION
1. Where special and important reasons are
present
Q: Distinguish between Original and
2. When dictated by public welfare and policy;
Appellate jurisdiction.
3. When demanded by interest of justice;
A:
4. Where the challenged orders are patent
nullities ORIGINAL APPELLATE
5. Where compelling circumstances warrant;
and
A court is one with A court is with
6. Where genuine issues of constitutionality
original jurisdiction appellate jurisdiction
must be immediately addressed [1 Riano
when actions or when it has the
44-45, 2016 Bantam Ed].
proceedings may be power to review on
originally filed with it. appeal the decisions
Q: What is the Doctrine of Non-
or orders of a lower
Interference? When is it inapplicable?
court.
A: The Doctrine of Non-Interference/ Doctrine
of Judicial Stability holds that courts of equal
and coordinate jurisdiction cannot interfere with Q: Distinguish between General and
each other’s orders. [Lapu-Lapu Devt Corp v. Special jurisdiction.
Group Management Corp 388 SCRA 493, 508] A:

It also bars a court from reviewing or interfering GENERAL SPECIAL

with the judgment of a co-equal court over
which it has no appellate jurisdiction or power Courts of general Courts of special
of review. [Villamor v. Salas 203 SCRA 540, jurisdiction are those jurisdiction are those
543] with competence to which have
decide on their own jurisdiction only for a
Note: Such doctrine applies also to jurisdiction and take particular purpose or
administrative bodies. [Philippine Sinter Corp cognizance of all clothed with special
v. Cagayan Electric Power and Light Co. Inc., cases of a particular powers for the
G.R. No. 127371 (2002)] nature. performance of
specified duties
The doctrine of judicial stability does not apply beyond which they
where a third party claimant is involved. No have no authority of
man shall be affected by any proceeding to any kind.
which he is a stranger [Sps. Crisologo v.
Omelio, A.M. No. RTJ-12-2321 (2012), citing
Q: Distinguish between exclusive and
Sec. 16, Rule 39, and quoting Naguit v. CA,
concurrent jurisdiction.
G.R. No. 137675 (2000)].
A:

EXCLUSIVE CONCURRENT

Exclusive Concurrent
jurisdiction jurisdiction is also
precludes the idea of called coordinate
co-existence and jurisdiction. It is the
refers to jurisdiction power of different
possessed to the courts to take
exclusion of others. cognizance of the
[Cubero v. Laguna same subject matter.

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West Multi-Purpose Where such
Cooperatives, Inc., jurisdiction exists,
G.R. No. 166833 the court first taking
(2006)] cognizance of the
case assumes
jurisdiction to the
exclusion of the other
courts.
Q: The Civil Aviation Authority of the
Philippines (CAAP) posted the instructions
to pre-qualify and bid for the construction
of the new Bacolod-Silay Airport. Petitioner,
an NGO whose membership consists of
subsistence farmers and fisherfolk, assails
the constitutionality of the project. They
allege that they will be unjustly deprived of
their livelihood, as the construction project
will effectively displace them from their
place of work. Suing as taxpayers, they file
a petition for certiorari directly with the
Supreme Court on grounds of
transcendental importance. Would the
taxpayer suit prosper?
A: NO, the suit will not prosper because it is
violative of the fundamental principle of
hierarchy of courts. Even though the Supreme
Court, the Court of Appeals, and the Regional
Trial Court have concurrent original jurisdiction
over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus,
parties are directed, as a rule, to file their
petitions before the lower-ranked court. Failure
to comply is sufficient cause for the dismissal
of the petition. In this case, the petition for
certiorari filed by the NGO should be
dismissed, as it failed to advance a special
reason as to why they may directly resort to a
higher court.
The Supreme Court is not a trier of facts, and it
is beyond its function to make its own findings
of certain vital facts different from those of the
trial court, especially on the basis of the
conflicting claims of the parties and without the
evidence being properly before it. [See: Gios-
Samar v. Department of Transportation, G.R.
No. 217158 (2019)].
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Q: How is jurisdiction over the plaintiff
acquired?
A: Courts acquire jurisdiction over a party
plaintiff upon the filing of the complaint [De
Pedro v. Romansan Development Corp, G.R.
No. 194751 (2014)]
Q: How is jurisdiction over the defendant
acquired? [ V S ]
A:
1. By his voluntary appearance in court and
submission to its authority;
Note: voluntary appearance in the action
shall be equivalent to service of summons.
Exception: Special Appearance
When the defendant’s appearance is made
precisely to object to the jurisdiction of the
court over his person, this cannot be
considered as appearance in court [French
Oil Mill Machinery, Inc v. CA, G.R. No.
126477 (1998)].
2. By service of summons
[Rule 14, Section 20, ROC; Macasaet v. Co,
G.R. No. 156759 (2013)].
Q: Define subject matter jurisdiction.
A: Jurisdiction over the subject matter is the
power of a particular court to hear the type
of case that is then before it [1 Riano 71, 2014
Bantam Ed., citing Black’s Law Dictionary 767,
5th Ed.]
It is the power to hear and determine cases
of the general class to which the proceedings
in question belong [Reyes v. Diaz, G.R. No. L-
48754 (1941)]
Q: P sued Q for collection of money before
the Metropolitan Trial Court. A judgment
was rendered in favor of P. Unsatisfied, Q
appealed the decision before the Regional
Trial Court, which again ruled in favor of P.
Upon elevation of the case to the Court of
Appeals, Q raised for the first time the
question on the jurisdiction of the MeTC to
hear the case. He argues that lack of
jurisdiction over the subject matter of a
case may be raised at any stage of the
proceedings, even for the first time on
appeal. Is Q correct?
UP LAW BOC PRE-WEEK REMEDIAL LAW

A: NO, Q is not correct. A party may be barred therefore not under the court’s custody. Is
from questioning a court’s jurisdiction after B correct?
invoking the court’s authority in order to secure A: NO, B is not correct. A land registration case
affirmative relief against its opponent, when is a proceeding in rem. In such a case, actual
laches would prevent the issue of lack of possession of the land by the court is not
jurisdiction from being raised for the first time necessary. It is enough that there is
on appeal by a litigant whose purpose is to constructive seizure of the land through
annul everything done in a trial in which it has publication and service of notice.
actively participated [Francel Realty Corp. v.
Sycip, G.R. No. 154684 (2005)]. Q: Distinguish between error of jurisdiction
and error of judgment. [ O R E ]
In this case, Q actively sought relief from the A:
court when it appealed to the RTC and the CA.
ERROR IN ERROR IN
After voluntarily submitting a cause and
JURISDICTION JUDGMENT
encountering an adverse decision on the
merits, it is too late for him to now question the
As to occurrence
jurisdiction or power of the court. [Tijam v.
Sibonghanoy, G.R. No. L-21450 (1968)].
One which occurs One which the court
when: may commit in the
Q: Define jurisdiction over the issues.
1. the court exercise of its
A: Jurisdiction over the issues is the power of
exercises a jurisdiction.
the court to try and decide issues raised in the
jurisdiction not It includes errors of
pleadings of the parties or by their agreement
conferred upon it procedure, or
in a pre-trial order or those tried by the implied
by law; or mistakes in the
consent of the parties
2. when the court court’s findings
acts in excess of [Banco Filipino
It may also be conferred by waiver or failure to
its jurisdiction or Savings and
object to the presentation of evidence on a
with grave abuse Mortgage Bank v.
matter not raised in the pleadings. [Rule 10,
of discretion CA, G.R No.
Section 5, Rules of Court].
amounting to lack 132703 (2000)]
of jurisdiction.
Q: How is jurisdiction over the res or
[GSIS v. Oliza,
property in litigation acquired?
G.R. No. 126874
A:
(1999)]
1. By seizure of the thing under legal process
whereby it is brought into actual custody of As to remedies available
the law (custodia legis); or
2. From the institution of legal proceedings, Correctable only by Correctable by
wherein under special provisions of law, the extraordinary writ appeal [Cabrera v.
the power of the court over the property is of certiorari [Cabrera Lapid, G.R. No.
recognized and made effective (potential v. Lapid, G.R. No. 129098 (2006)].
jurisdiction over the res) [Biaco v. 129098 (2006)].
Philippine Countryside Rural Bank, G.R.
No. 161417 (2007); El Banco Español- As to effect
Filipino v. Palanca, G.R. No. 11390
(1918)]. The decision An erroneous
rendered is a total judgment on the
Q: A seeks to register a parcel of land, nullity and may be part of the court
which was opposed by B. B alleges that the struck down at any does not render the
court did not acquire jurisdiction over the time, even on appeal; judgment void.
subject property, since the sheriff did not
come to actually seize the land, and it is

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Exception: When the G.R. No. 160719

party raising the issue (2006)]
is barred by estoppel.
[Suntay v. Gocolay,
Q: X, who is a distant relative of Y,
G.R. No. 144892
approached the latter for permission to
(2005)]
construct a residential house on the latter’s
land. Y allowed them to do so on the
Q: Compare and Contrast: Jurisdiction v. condition that X would vacate the property
Venue should Y need the same for his own use.
A: Later, Y decided to sell a part of the land,
which included the subject property which
JURISDICTION VENUE
was still occupied by X. Consequently, Y
Authority to hear and Place where the sent X a Demand letter, but X refused to
determine a case case is to be heard or heed this demand. Y then filed a Complaint
tried for Unlawful Detainer against X before the
MTCC without prior barangay conciliation,
Substantive Procedural since not all parties to the case reside in the
same city or municipality. X argues that
Establishes a Establishes a prior barangay conciliation is mandatory,
relation between the relation between even if the parties do not live in the same
court and the subject plaintiff and city or municipality. Without this mandatory
matter defendant, or requirement, X moves that the case should
petitioner and thus be dismissed. Is X correct?
respondent A: NO, X’s contention is untenable. As a
general rule, the Local Government Code
Fixed by law and May be changed by provides that “the lupon of each barangay shall
cannot be conferred the written have authority to bring together the parties
by the act or agreement of the actually residing in the same city or municipality
agreement of the parties or waived for amicable settlement of all disputes,” subject
parties expressly or to certain exceptions enumerated in the law.
impliedly
One such exception is in cases where the
The court may The court may not dispute involves parties who actually reside in
dismiss an action dismiss an action barangays of different cities or municipalities,
motu proprio in case motu proprio for unless said barangay units adjoin each other
of lack of jurisdiction improper venue and the parties thereto agree to submit their
over the subject [Dacoycoy v. IAC, differences to amicable settlement by an
matter [Rule 9, Sec G.R. No. 74854 appropriate lupon.
1] (1991)]
Thus, parties who do not actually reside in the
Jurisdiction over the The objection to an same city or municipality or adjoining
subject matter may improper venue must barangays are not required to submit their
be raised at any be raised in the dispute to the lupon as a precondition to the
stage of the answer as an filing of a complaint in court [Abagatnan v.
proceedings since it affirmative defense Spouses Clarito, G.R. No. 211966 (2017)].
is conferred by law, [Rule 8, Sec 12]. It is
although a party may no longer a valid
be barred from ground for a motion
raising it on the to dismiss
ground of estoppel
[La’o v. Republic,

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any interest therein

CIVIL PROCEDURE [Sec 1, Rule 4]

As to venue
A. General Provisions
Real actions are Personal actions are
Q: What are the actions or proceedings brought in the place brought in the place
governed by the Rules of Court? In what where the subject where the plaintiff or
cases are the Rules of Court NOT property, or a part defendant resides,
applicable? thereof, is located in regardless of where
A: The following actions or proceedings are the absence of the cause of action
governed by the Rules of Court: [ C S C ] agreement to the arose [BPI v.
1. Civil actions - where the actions are contrary [BPI v. Hontanosas Jr., G.R.
governed by the rules for ordinary civil Hontanosas Jr., G.R. No. 157163 (2014)]
actions [See: Rules 2-61, ROC] No. 157163 (2014)]
2. Criminal actions - where the state
prosecutes a person for an act or omission
punishable by law C. Cause of Action
3. Special Proceedings - one which is subject
to the specific rules prescribed for a special Q: Define “cause of action.”
civil action, but note that it is also governed A: A cause of action is an act or omission by
by the rules for ordinary civil actions [See: which a party violates a right of another [Rule
Rules 62-71, ROC]. 2, Section 2, ROC].

The Rules shall not apply to [ C L E I N ] The following are the elements of a cause of
1. Election cases action: [ C A R ]
2. Land registration 1. Plaintiff’s legal right;
3. Cadastral 2. Defendant’s correlative obligation to
4. Naturalization respect the plaintiffs right; and
5. insolvency proceedings 3. Defendant’s act or omission in violation
6. Other cases not herein provided for, except of the plaintiff’s right. [Ma-ao Sugar Central
by analogy or in a suppletory character and v. Barrios, G.R. No. L-1539 (1947)].
whenever practicable and convenient [Rule
1, Section 4, Rules of Court]. Q: Distinguish between cause of action and
right of action.
B. Actions A:

CAUSE OF ACTION RIGHT OF ACTION

Q: Distinguish Between a Personal Action
and a Real Action
A: Definition
PERSONAL
REAL ACTION The act or omission Right of a plaintiff to
ACTION
by which a party bring an action and
violates the rights of to prosecute that
As to nature
another [Rule 2, action until final
Section 2, ROC]. judgment [Marquez
An action is a real All other actions v. Varela, G.R. No. L-
action when it affects other than real 4845 (1952)].
title to or possession actions are personal
of real property, or actions [Sec 2, Rule
4]

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Requisites When made

[CCP]
1. The existence of 1. There must be a Can be made at the Made after questions
a legal right of a good cause earliest stages of an of fact have been
the plaintiff; (existence of a action resolved on the basis
2. A correlative cause of action); of stipulations,
duty of the 2. Compliance with admissions or
defendant to all the conditions evidence presented
respect said precedent to the
right; and bringing of the
Q: What is the test of sufficiency of cause
3. An act or action; and
of action?
omission of the 3. Right to bring
A: The test of sufficiency of a cause of action
defendant in and maintain the
rests on whether, hypothetically admitting
violation of the action must be in
the facts alleged in the complaint to be true,
plaintiff’s right the person
the court can render a valid judgment upon
instituting it.
the same, in accordance with the prayer in the
complaint. [Heirs of Maramag v. Maramag,
Q: Distinguish between failure to state G.R. No. 181132 (2009)].
cause of action and lack of cause of action
A: [ D R D W ] Q: What is the splitting of a single cause of
action?
FAILURE TO
LACK OF CAUSE A: It is the act of instituting two or more suits on
STATE CAUSE OF
OF ACTION the basis of the same cause of action. It is the
ACTION
act of dividing a single or indivisible cause of
action into several parts or claims and bringing
Definition several actions thereon. This practice is
discouraged [Rule 2, Section 4, ROC; Riano
When there is an Where the evidence (2014), citing Quadra v. Court of Appeals, G.R.
insufficiency of the failed to prove the No. 147593 (2006)].
allegations in the cause of action
pleading Q: When is a joinder of causes of action
valid?
Remedies available A: A party may, in one pleading assert, in the
alternative or otherwise, as many causes of
action as he may have against an opposing
Proper remedy is to Proper remedy is to
party, provided that: [ J S R T ]
allege the same as file a Demurrer to
1. The party joining the causes of action shall
an affirmative Evidence under Rule
comply with the rules on joinder of parties;
defense in the 33.
2. The joinder shall not include special civil
Answer [Rule 8,
actions or actions governed by special
Section 12(4), ROC].
rules;
3. Where the causes of action are between
Determination the same parties but pertain to different
venues or jurisdictions, the joinder may be
Determined only Resolved only on the allowed in the regional trial court provided
from the allegations basis of the evidence one of the causes of action falls within the
of the pleading and presented by plaintiff jurisdiction of said court and the venue lies
not from evidentiary in support of his therein; and
matters claim 4. Totality test - Where the claims in all the
causes of action are principally for recovery
of money, the aggregate amount claimed

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shall be the test of jurisdiction [Rule 2,
Section 5, ROC].
Q: When is there a misjoinder of causes of
action and what are its effects?
A: There is a misjoinder when two or more
causes of action were joined in one
complaint when they should not be joined.
A misjoined cause of action may, on motion of
a party or on the initiative of the court, be
severed and proceeded with separately by
filing a motion in relation thereto [Rule 2,
Section 6, RPC].
D. Parties to Civil Actions
Q: Who are real parties in interest?
A: A real party in interest is that party who
stands to be benefitted or injured by the
judgment in the suit, or the party entitled to the
avails of the suit [Rule 3, Section 2, ROC]. The
interest must be real, material and direct, which
is a present and substantial interest, and not
just a mere expectancy or a future, contingent,
subordinate or consequential interest [Rayo v.
Metrobank, G.R. No. 165142 (2007)].
Q: Who are indispensable parties?
A: An indispensable party is one whose
interest in the subject matter of the suit and the
relief sought are so inextricably intertwined with
the other parties that his legal presence as a
party to the proceeding is an absolute
necessity [Benedicto-Muñoz v. Cacho-
Olivares, G.R. No. 179121 (2015)].
No FINAL determination can be had, as distinguished from COMPLETE
relief/determination/settlement.
Q: What is the effect of failure to join an
indispensable party?
A: As a general rule, dismissal is not the
immediate remedy authorized because
according to the Rules of Court, a misjoinder or
non-joinder of parties is not a ground for
dismissal. It is when the order of the court to
implead an indispensable party goes
unheeded that the case may be dismissed. In
such a case, the court may dismiss the
complaint due to the fault of the plaintiff as
when he does not comply with any order of the
court, the order being to join indispensable
parties [Rule 17, Section 3; Riano (2014)].
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PRE-WEEK REMEDIAL LAW
Q: Who are necessary parties?
A: Necessary parties are those who are not
indispensable but ought to be joined as parties
in the following circumstances:
1. If complete relief is to be accorded to those
already parties; or
2. For a complete determination or settlement
of the claim subject of the action [Rule 3,
Section 8, ROC].
Q: When is the joinder of parties
compulsory (permissive)?
A: The joinder of parties becomes compulsory
when the one involved is an indispensable
party [Riano (2014)].
The joinder of parties is permissive when the
following requisites are met: [ T Q R ]
1. The right to relief arises out of the same
transaction or series of transactions
(connected with the same subject matter of
the suit);
2. There is a question of law or fact common
to all the plaintiffs or defendants; and
3. Such joinder is not otherwise proscribed by
the provisions of the ROC on jurisdiction
and venue.
Q: What are the effects and remedies of
non-joinder of necessary parties?
A: Non-joinder of a necessary party does not
prevent the court from proceeding in the action.
The judgment rendered therein shall not
prejudice the right of such necessary party.
As a remedy for when a claim omits to join a
necessary party, the pleader must:
1. Set forth the name of the necessary party,
if known, and
2. State the reason why he is omitted [Rule 3,
Section 9(1), ROC].
Q: What are the requisites of a class suit?
A: [ I N C B ]
1. Subject matter of the controversy is one of
common or general interest to many
persons;
2. The persons are so numerous that it is
impracticable to join them all as parties;
3. The court finds a number of them
sufficiently numerous and representative of
the class as to fully protect the interests of
all concerned; and
UP LAW BOC PRE-WEEK
4. The representative sues or defends for the
benefit of all.
Q: What are the requisites for suits against
entities with no juridical personality?
A:
1. There are 2 or more persons not organized
as a juridical entity; and
2. They enter into a transaction [Rule 3,
Section 15, ROC].
Q: How are service of summons effected
upon an entity with no juridical personality?
A:
1. Through service upon any defendant; or
2. Upon the person in charge of the office or
place of business maintained under such
name [Rule 14, Section 7, ROC].
Q: What is the effect of the death of a party
to a pending action?
A: It depends on the nature of the action.
If it is a purely personal action, the death of
either of the parties extinguishes the claim and
the action is dismissed.
If the action is not purely personal, the claim is
not extinguished and the party should be
substituted by his heirs, executor or
administrator. In case of minor heirs, the court
may appoint a guardian ad litem for them.
If the action is one for recovery of money
arising from contract and the defendant dies
before entry of final judgment, the action shall
not be dismissed but instead be allowed to
continue until entry of judgment. A favorable
judgment obtained by the plaintiff shall be
enforced in the manner provided in the rules for
prosecuting claims against the estate of a
deceased person [Rule 3, Section 20, ROC].
E. Venue
Venue of real actions
Place where the real property involved, or any
portion thereof, is situated [Rule 4, Section 1,
ROC]
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Venue of personal actions
Residence of the plaintiff or defendant, at the
option of the plaintiff [Rule 4, Section 2, ROC]
Q: What are the instances when the rules on
venue do not apply?
A:
1. In cases where a specific rule or law
provides otherwise (e.g. an action for
damages arising from libel); or
2. Where the parties have validly agreed in
writing before the filing of the action on the
exclusive venue [Rule 4, Sec. 4, ROC].
Q: What are the requisites for the validity of
a stipulation on venue? [ E W B ]
A: An agreement between the parties
stipulating the exclusive venue of an action
would be valid and binding provided that:
1. The stipulation on the chosen venue is
exclusive in nature or in intent,
2. That it is expressed in writing by the parties
thereto, and
3. That it is entered into before the filing of the
suit. [Pilipino Telephone v. Tecson, G.R.
No. 156966 (2004)]
F. Pleadings
Pleadings
Pleadings are written statements of the
respective claims and defenses of the parties
submitted to the court for appropriate judgment
[Rule 6, Section 1, ROC].
Kinds of Pleadings
1. Complaint
Pleading alleging the plaintiff’s or claiming
party’s cause/s of action [Rule 6, Section 3,
ROC]
2. Answer
Pleading in which the defending party sets
forth his or her affirmative or negative
defenses [Rule 6, Section 4, ROC]
3. Counterclaim
Any claim which a defending party may
have against an opposing party [Rule 6,
Section 6, ROC]. It partakes of a complaint
by the defendant against the plaintiff [Pro-
Life Sports Inc. v. CA, G.R. No. 118192
(1997)]
UP LAW BOC PRE-WEEK REMEDIAL LAW

4. Cross-claim Q: Distinguish between compulsory and

Any claim by one party against a co-party permissive counterclaim. [ A T B A I F J ]
arising out of the transaction or occurrence A:
that is the subject matter of either the
COMPULSORY PERMISSIVE
original action, or a counterclaim therein.
COUNTERCLAIM COUNTERCLAIM
Such cross-claim may cover all or part of
the original claim [Rule 6, Section 8, ROC] Arises out of or is Does not arise out of
5. Reply necessarily nor is it necessarily
A pleading, the office of which is to deny, or connected with the connected with the
allege facts in denial, or avoidance of new transaction or subject matter of the
matters alleged in, or relating to, said occurrence that is opposing party’s
actionable document [Rule 6, Section 10, the subject matter of claim.
ROC] the opposing party’s
6. Rejoinder claim [Rule 6,
The defendant’s answer to the plaintiff’s Section 7, ROC]
replication [Bouvier, 6th ed. (1856)]
7. Third-party (fourth-party etc.) complaint Does not require for It may require for its
Counterclaim its adjudication the adjudication the
A claim that a defending party may, with presence of third presence of third
leave of court, file against a person not a parties of whom the parties of whom the
party to the action, called the third (fourth, court cannot acquire court cannot acquire
etc.) party defendant, for contribution jurisdiction [Rule 6, jurisdiction.
indemnity, subrogation or any other relief, Section 4, ROC]
in respect of his or her opponent’s claim.
[Rule 6, Section 11, ROC] GR: Barred if not set Not barred even if
8. Complaint-in-intervention up in the same action not set up in the
Pleading filed for the purpose of asserting [Rule 6, Section 7; action.
a claim against either or all of the original Rule 9, Section 2,
parties [Rule 19, Section 3, ROC] ROC]

Q: Distinguish between counterclaim and XPN: [ A O ] Unless

cross-claim. [ A P B ] otherwise allowed by
A: the Rules [Rule 6,
Section 7, ROC]
COUNTERCLAIM CROSS-CLAIM 1. Counterclaim
arising after
Filed against the Filed against a co- answer [Rule 11,
opposing party party Section 9, ROC]
2. Omitted
May be permissive Always arises out of counterclaim
(not arising out of the the transaction or [Rule 11, Section
same occurrence) occurrence that is 9, ROC]
the subject matter of
the action Need not be Must be answered;
answered; No Otherwise, default
Barred only if a Barred if not set up default [Gojo v. [Sarmiento v. Juan,
compulsory Goyala, G.R. No. L- G.R. No. L-56605
counterclaim is not 26728 (1970)] (1983)]
set up
Not an initiatory Initiatory pleading
pleading

Page 11 of 128
UP LAW BOC PRE-WEEK REMEDIAL LAW

Q: What are the requisites for an

Need not be Must be
intervention by a non-party in an action
accompanied by a accompanied by a
pending in court?
certification against certification against
A:
forum shopping and forum shopping and
1. There must be a motion for leave to
certificate to file whenever required
intervene filed before rendition of judgment
action by Lupong by law, also a
by the trial court. [ L U P ]
Tagapamayapa. certificate to file
2. Movant must show that he or she has a:
action by the Lupong
a. Legal interest in the matter in
Tagapamayapa
controversy;
[Santo Tomas
b. Legal interest in the success of either
University v. Surla
of the parties; or
G.R. No. 129718
c. Legal interest against both; or
(1998)]
d. So situated as to be adversely affected
GR: The court has Must be within the by a distribution or other disposition of
jurisdiction to jurisdiction of the property in the custody of the court or
entertain both as to court where the case of an officer thereof;
the amount and is pending and e. Intervention will not unduly delay or
nature cognizable by prejudice the adjudication of the rights
regular courts of of original parties; and
XPN: In an original justice. Otherwise, f. Intervenor’s rights may not be fully
action before the defendant will have protected in a separate proceeding
RTC, the to file it in separate [Rule 19, Section 1, ROC]
counterclaim may be proceeding which
considered requires payment of Q: When may a Reply be filed?
compulsory docket fees. A: The plaintiff may file a Reply ONLY if the
regardless of the defending party attaches an actionable
amount [Rule 6, document to his answer [Rule 6, Section 10,
Section 7, ROC] ROC]

Parts of a Pleading
Q: What is the test to determine whether a 1. Caption
counterclaim is compulsory? [ I R E L ] 2. Body
A: a. Paragraphs
1. Are the issues of fact and law raised by the b. Headings
claim and the counterclaim largely the c. Relief
same? d. Date
2. Would res judicata bar a subsequent suit 3. Signature and address
on the defendant’s claims, absent the 4. Verification
compulsory counterclaim rule? 5. Certification against forum shopping
3. Will substantially the same evidence
support or refute the plaintiff’s claim, as Q: Give examples of pleadings that must be
well as the defendant’s counterclaim? verified.
4. Is there any logical relation between the A:
claim and the counterclaim? 1. Petition for relief from judgment;
2. Petition for review from the RTCs to the
A positive answer to all four questions would CA;
indicate that the counterclaim is compulsory. 3. Petition for review from the CTA and quasi-
[Buncayao v. Fort Ilocandia Property, G.R. No. judicial agencies to the CA;
170483 (2010); GSIS v. Heirs of Caballero, 4. Appeal by certiorari from the CA to the SC;
G.R. No. 158090 (2010); Rule 6, Section 7] 5. Petition for annulment of judgments or final
orders and resolutions;
6. Complaint for injunction;

Page 12 of 128
UP LAW BOC
7. Application for appointment of receiver;
8. Application for support pendente lite;
9. Petition for certiorari against the
judgments, final orders or resolutions of
constitutional commissions;
10. Petition for certiorari, prohibition;
mandamus, quo warranto;
11. Complaint for expropriation;
12. Complaint for forcible entry or unlawful
detainer;
13. Petition for indirect contempt;
14. Petition for appointment of general
guardian;
15. Petition for leave to sell or encumber
property of an estate by a guardian;
16. Petition for the declaration of competency
of a ward;
17. Petition for habeas corpus;
18. Petition for change of name;
19. Petition for voluntary judicial dissolution of
a corporation;
20. Petition for correction or cancellation of
entries in Civil Registry
21. All other initiatory pleadings.
Q: What are the elements of forum
shopping? [ P R R ]
A:
1. Identity of parties, or at least such parties
representing the same interests in both
actions;
2. Identity of rights asserted and reliefs
prayed for, the relief being founded on the
same facts; and
3. The identity of two preceding particulars,
such that any judgment rendered in the
other action will, regardless of which party
is successful amount to res judicata in the
action under consideration [Buan v. Lopez,
G.R. No. 75349 (1986)]
Q: What is the period to invoke the rule on
forum shopping?
A: GR: It should be raised at the earliest
opportunity.
XPNs: It may be invoked in later stages only if
the violation arises from or will result in: [ J R L P ]
1. The loss of jurisdiction over the subject
matter;
2. The pendency of another action between
the same parties for the same cause;
3. Barring of the action by a prior judgment; or
Page 13 of 128
PRE-WEEK REMEDIAL LAW
4. The Statute of Limitations has been
crossed
[Young v. Keng Seng, G.R. No. 143464 (2003)]
Q: What is the effect of failure to make
specific denials?
A: GR: Material averments not specifically
denied are deemed admitted.
XPN: Allegations as to the amount of
unliquidated damages, when not specifically
denied, are not deemed admitted.
Q: What is the effect of failure to plead
defenses and objections?
A: GR: Defenses not pleaded in a motion to
dismiss or in the answer are deemed waived
[Rule 9, Section 1, ROC]
XPNs: These defenses may be raised at any
stage of the proceedings even for the first time
on appeal: [ J R L P ]
1. Lack of subject matter jurisdiction;
2. Litis pendentia
3. Res judicata
4. Statute of limitations
[Rule 9, Section 1, ROC]
Q: When may a party be declared in default?
What is the effect of an Order of Default?
A: A party may be declared in default when he
fails to answer within the time allowed therefor
and upon motion of the claiming party with
notice to the defending party, and proof of such
failure. The effect of an Order of Default is that
the court may proceed to render judgment
granting the claimant such relief as his pleading
may warrant unless the court in its discretion
requires the claimant to submit evidence. The
party in default cannot take part in the trial but
shall be entitled to notice of subsequent
proceedings. [Rule 9, Section 3]
Q: Is the payment of docket fees
mandatory?
A: Yes. It is not simply the filing of the complaint
or appropriate initiatory pleading but the
payment of the prescribed docket fees that
vests a trial court with jurisdiction over the
subject matter or nature of the action [Rizal et
al., v. Nared, G.R. No. 151898 (2012)].
UP LAW BOC PRE-WEEK
The payment of the docket fees and other legal
fees within the prescribed period is both
mandatory and jurisdictional [Gonzales v. Pe,
G.R. No. 167398 (2011)]
Q: How is personal service done?
A: Personal service is done by:
1. Delivering personally a copy to the party or
to the party’s counsel, or to their authorized
representative names in the appropriate
pleading or motion;
2. Leaving it in the counsel’s office with his or
her clerk or with a person having charge
thereof; or
3. If no person is found in his or her office or
his or her office is not known, or he or she
has no office, by leaving the copy between
the hours of eight in the morning and six in
the evening, at the party’s or counsel’s
residence, if known, with a person of
sufficient age and discretion residing
therein [Rule 13, Section 6]
Q: How is service by mail done?
A: Service by mail is done by:
1. Registered Mail - By depositing the copy in
the post office in a sealed envelope, plainly
addressed to the party or his or her counsel
at his or her office, if known, with postage
fully prepaid, and with instructions to the
postmaster to return the mail to the sender
after 10 calendar days if undelivered; or
2. Ordinary Mail - If no registry service is
available in the locality of either the sender
or the addressee [Rule 13, Section 7]
Note: Service and filing by mail may be done
only when personal service and filing is not
practicable.
Q: When is substituted service allowed?
A: If service of pleadings, motions, notices,
resolutions, orders and other papers cannot be
made through personal service or by mail, the
office and place of residence of the party or his
or her counsel being unknown, service may be
made by delivering the copy to the clerk of
court, with proof of failure of both personal
service and service by mail. [Rule 13, Section
8, ROC]
Page 14 of 128
REMEDIAL LAW
Q: When is the amendment of pleadings
considered a matter of right?
A: Amendment is considered a matter of right:
1. Once, at any time before a responsive
pleading is served; or
2. In the case of a reply, at any time within ten
(10) calendar days after it is served [Rule
10, Section 2, ROC]
Q: What is the proper remedy when the
court refuses to admit an amended pleading
when its exercise is a matter of right?
A: If the court refuses to admit an amended
pleading when its exercise is a matter of right,
such error is correctible by mandamus. [Alpine
Lending Investors v. Corpuz, G.R. No. 157107
(2006)]
Q: Is the filing of an answer to a
supplemental complaint mandatory?
A: No. Filing an answer to a supplemental
complaint is not mandatory because of the use
of the word “may” in Rule 11, Section 7, ROC.
This is bolstered by the express provision of the
Rules that the answer to the original pleading
shall serve as the answer to the supplemental
pleading if no new or supplemental answer is
filed. The Court cannot declare the
respondents in default simply because the
latter opted not to file their answer to the
supplemental petition. [Chan v. Chan, G.R. No.
150746 (2008)]
G. Summons
Summons
It is the writ by which the defendant is notified
of the action brought against him or her.
[Gomez v. CA, G.R. No. 127692 (2004)]
Q: When are summons issued?
A: GR: The court shall, within five (5) calendar
days from receipt of the initiatory pleading and
proof of payment of the requisite legal fees,
direct the clerk of court to issue the
corresponding summons to the defendants
[Rule 14, Section 1, ROC]
XPN: When the complaint is on its face
dismissible under Rule 9, Section 1, i.e. when
it appears on the face of the complaint that the
Court has no jurisdiction over the subject
UP LAW BOC PRE-WEEK
matter and the action is barred by litis
pendentia, res judicata, or prescription.
Q: When are alias summons issued?
A: The only time that alias summons may be
issued by the court is when summons has been
lost or destroyed. The issuance is upon motion.
[Rule 14, Section 4, ROC].
Service of summons
Q: Who may serve summons?
A: The summons may be served by the:
1. Sheriff;
2. Deputy of the sheriff;
3. Other proper court officer; or
4. Plaintiff, provided: [ F A O ]
a. There must be failure of service of
summons by the sheriff or his deputy;
b. Authorized by the court;
c. The summons is to be served outside
the judicial region of the court where
the case is pending [Rule 14, Sec. 3]
Q: How are summons served?
A: Summons is served by any of the following
means: [ P E S S ]
1. Personal service
2. Extraterritorial service
3. Service by publication
4. Substituted service
Q: When is substituted service of summons
allowed?
A: It is allowed if, for justifiable causes, the
defendant cannot be served personally after at
least 3 attempts on 2 different dates [Rule 14,
Section 6, ROC]
Q: What are the requisites of extraterritorial
service of summons? [ N F A ]
A:
1. The defendant is nonresident;
2. He or she is not found in the Philippines;
and
3. The action against him is either in rem or
quasi in rem.
Q: When is extraterritorial service of
summons allowed?
A: Extraterritorial service is allowed in the
following instances: [ A W E S ]
1. The action affects the personal status of
the plaintiff;
Page 15 of 128
REMEDIAL LAW
2. The action relates to, or the subject of
which is the property within the Philippines
on which the defendant has or claims a lien
or interest, actual or contingent;
3. The action in which the relief demanded
consists, wholly or in part, in excluding the
defendant from any interest therein; and
4. When the property of the defendant has
been attached in the Philippines [NM
Rothschild & Sons (Australia) Ltd. v.
Lepanto Consolidated Mining Co., G.R. No.
175799 (2011)]
Service on domestic private juridical entity
Service shall be made on the: [ P C G S M T S ]
1. President;
2. In-house counsel wherever they may be
found,
3. General manager;
4. Corporate secretary;
5. Managing partner; or
6. Treasurer;
7. On their secretaries, in case of their
absence or unavailability [Rule 14, Section
12, ROC]
If such service cannot be made upon any of the
foregoing persons, it shall be made upon the
person who customarily receives the
correspondence for the defendant at its
principal office.
The enumeration above is exclusive [Cathay
Metal Corporation v. Launa West Multi-
Purpose Cooperative Inc., G.R. No. 172204
(2014)]
Service on foreign private juridical entity
registered in the Philippines
Service shall be made on its:
1. Resident agent designated in accordance
with law for that purpose;
2. If there be no such agent, on the
government official designated by law to
that effect; or
3. On any of its officers or agents, directors or
trustees within the Philippines [Rule 14,
Section 14, ROC]
UP LAW BOC PRE-WEEK
Service on foreign private juridical entity
NOT registered in the Philippines
Service may, with leave of court, be effected
outside of the Philippines through any of the
following means: [ P F P r E O ]
1. By personal service coursed through the
appropriate court in the foreign country with
the assistance of the Department of
Foreign Affairs;
2. By publication once in a newspaper of
general circulation in the country where the
defendant may be found and by serving a
copy of the summons and the court order
by registered mail at the last known
address of the defendant;
3. By facsimile;
4. By electronic means with prescribed proof
of service; or
5. By such other means as the court may in
its discretion direct. [Rule 14, Section 14,
ROC]
Service on public corporations
1. When the defendant is the Republic of the
Philippines - on the Solicitor General
2. When the defendant is a province, city of
municipality, or like public corporations - on
its executive head, or on such other
officer/s as the law or the court may direct
[Rule 14, Section 15, ROC]
Q: What are the rules on proof of service?
A: It shall: [WPS Mpd Epa]
1. Be made in writing by the server;
2. Set forth the manner, place, and date of
service;
3. Specify any papers which have been
served with the same;
4. Be sworn to when made by a person other
than a sheriff or his deputy; and
5. If served by electronic mail, a printout of
said e-mail with a copy of summons, and
affidavit of person mailing [Rule 14, Section
21, ROC].
H. Motions
Definition of a motion
A motion is an application for relief other than
by a pleading. [Sec. 1, Rule 15]
Page 16 of 128
REMEDIAL LAW
Distinguish: motions and pleadings
A motion is an application for relief other than
by a pleading. Sec. 1 of Rule 6 limits the
meaning of a pleading to the written statement
of the respective claims and defenses
submitted by the parties for appropriate
judgment, and Sec. 2 of Rule 6 enumerates the
pleadings allowed. But in a broad sense, the
term pleadings include all papers filed,
excluding evidentiary matters, from the
complaint down to the judgment; hence, a
motion may also be considered in a broad
sense as in the nature of a pleading since it is
among the papers filed in court. That is why
Sec. 11 of Rule 15 requires a qualified
application to motions of the rules applicable to
pleadings. [Regalado, Remedial Law
Compendium]
Contents and form of motions
A motion shall state the relief sought to be [ R G S ]
obtained and the grounds upon which it is
based, and if required by these Rules or
necessary to prove facts alleged therein, shall
be accompanied by supporting affidavits and
other papers [Sec. 3, Rule 15].
All motions shall be in writing except those
made in open court or in the course of a hearing
or trial. [Sec. 2, Rule 15]
The Rules applicable to pleadings shall apply
to written motions so far as concerns caption,
designation, signature, and other matters of
form. [Sec. 11, Rule 15]
Litigious and non-litigious motions; when
notice of hearing necessary
Q: What are the differences between
litigious and non-litigious motions?
A: As to their nature, non-litigious motions may
be acted upon by the court without prejudicing
the rights of adverse parties, while litigious
motions may not [Sec. 4, Rule 15].
As to their processes, non-litigious motions
shall not be set for hearing and shall be
resolved by the court within 5 calendar days
from receipt thereof [Sec. 4, Rule 15], while
litigious motions requires service to the other
party, an opportunity to be opposed within 5
calendar days from receipt thereof, and
resolution within 15 calendar days from its
 UP LAW BOC PRE-WEEK
receipt of the opposition thereto, or upon
expiration of the period to file such opposition
[Sec. 5, Rule 15].
Q: When is notice of hearing necessary?
A: Notice of hearing is necessary if the court,
in the exercise of its discretion, and if deemed
necessary for the resolution of a litigious
motion calls for a hearing on the motion. The
notice of hearing shall be addressed to all
parties concerned, and shall specify the time
and date of the hearing [Sec. 6, Rule 15].
Omnibus motion rule
Q: What is the omnibus motion rule?
A: Subject to the provisions of Section 1 of
Rule 9, a motion attacking a pleading, order,
judgment, or proceeding shall include all
objections then available, and all objections not
so included shall be deemed waived [Section
9, Rule 15].
Prohibited motions
Q: What are the allowable grounds for
motion for postponement? [ A F P ]
A:
1. Acts of God
2. Force majeure
3. Physical inability of the witness to appear
and testify.
Bill of particulars: purpose and when
applied for
Q: When should a motion for bill of
particulars be filed?
Just like A: It must be filed before a responsive pleading
amendment to is filed. If the pleading is a reply, the motion
pleadings as a must be filed within 10 calendar days from
matter of right. service thereof. [Sec. 1, Rule 12]
Bill of particulars: Actions of the court
Upon the filing of the motion, the clerk of court
must immediately bring it to the attention of the
court, which may either deny or grant it outright,
or allow the parties the opportunity to be heard.
[Sec. 2, Rule 12]
Page 17 of 128
REMEDIAL LAW
Bill of particulars: Compliance with the
order and effect of noncompliance
Q: What are the effects of non-compliance
with the grant of the motion of bill of
particulars?
A: The court may order the striking out of the
pleading or the portions thereof to which the
order was directed [Sec. 4, Rule 12]. If it is the
plaintiff who refuse to comply with the grant of
the bill of particulars, the complaint may be
dismissed for non-compliance with the order of
the court under Rule 17, sec. 3.
Effect on the period to file a responsive
pleading
The moving party may file his or her responsive
pleading within the period to which he or she
was entitled at the time of filing his or her
motion, which shall not be less than five (5)
calendar days in any event. [Sec. 5, Rule 12]
I. Dismissal of Actions
Dismissal with prejudice
Q: What are the instances where there is a
dismissal with prejudice? [ U S E R ]
A:
1. Dismissal due to bar by prior judgment
2. Dismissal due to bar by statute of
limitations
3. Dismissal due to the fact that the claim or
demand in the plaintiff’s pleading has been
paid waived, abandoned, or otherwise
extinguished
4. Dismissal due to the finding that the action
is unenforceable under the provisions of
the statute of frauds [Sec. 13, Rule 15]
Dismissal upon notice by plaintiff
Q: When will a notice of dismissal be one
with prejudice?
A:
1. If the notice of dismissal by the plaintiff
provides that the dismissal is with
prejudice;
2. Two-dismissal rule
Q: What is the two-dismissal rule?
A: The second notice of dismissal will bar the
refiling of the action because it will operate as
an adjudication of the claim upon the merits.
The two-dismissal rule applies when the
[TSC]
UP LAW BOC PRE-WEEK
plaintiff has (a) twice dismissed actions, (b)
based on or including the same claim, (c) in a
court of competent jurisdiction. [Sec.1, Rule 17;
Riano]
Dismissal upon motion by plaintiff; effect
on existing counterclaim
Q: How is it different with the notice of
dismissal?
A: Once either an answer or a motion for
summary judgment has been served on the
plaintiff, the dismissal is no longer a matter of
right and will require the filing of a motion to
dismiss, not a mere notice of dismissal.
Q: What is its effect on existing
counterclaim?
A: The dismissal shall be without prejudice to
the right of the defendant to prosecute his or
her counterclaim in a separate action unless
within fifteen (15) calendar days from notice of
the motion he or she manifests his or her
preference to have his or her counterclaim
resolved in the same action.
J. Pre-Trial
Q: What is the effect of the non-appearance
of the counsel or the party at the court-
annexed mediation and judicial dispute
resolution?
A: It shall be deemed as non-appearance at the
pre-trial; hence, if the plaintiff and counsel
failed to appear without valid cause, their non-
appearance shall cause the dismissal of the
action. If the defendant and the counsel failed
to appear, their non-appearance shall cause
the allowance of the plaintiff to present his or
her evidence ex-parte and the court to render
judgment on the basis of the evidence offered.
K. Intervention
Q: What are the requisites for intervention?
A:
1. legal interest in the matter in litigation, or,
2. in the success of either of the parties, or
3. an interest against both, or
4. is so situated as to be adversely affected
by a distribution or other disposition of
property in the custody of the court or of an
officer thereof [Sec. 1, Rule 19]
Page 18 of 128
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L. Subpoena
Q: What are the grounds for quashing a
subpoena?
A: For subpoena duces tecum - a.
Unreasonable, oppressive, irrelevant
For subpoena ad testificandum - a. Witness is
not bound thereby, b. The witness fees and
kilometrage were not tendered when the
subpoena was served [Sec. 4, Rule 21]
M. Computation of Time
Q: X filed a complaint against Y. On the 30th
day after the service of summons, Y filed a
motion to dismiss instead of filing an
answer. The motion to dismiss was denied.
How many more days does Y have to file his
answer?
A: One day. The day of the act that caused the
interruption of the running of the period shall be
excluded in the computation of the period [Sec.
2, Rule 22]. Since the motion to dismiss
interrupted the running of the period, the day
that it was filed should be excluded from the
computation of the period to file the answer.
N. Modes Of Discovery
Q: What is the difference between letters
rogatory and commission?
A: Letters rogatory are communication of one
court to another one abroad to take the
deposition of a person in the same country as
the latter under the rules of that country.
Commission is when a Philippine court
appoints a person abroad to take the
deposition but they have to follow the rules of
the country where they are in. [Dulay v. Dulay]
Q: Is the other party required to be notified
of a motion to take deposition pending
action?
A: The new rules now provide that a deposition
pending action may be taken upon ex parte
motion of a party. [Sec. 1, Rule 23]
UP LAW BOC PRE-WEEK
Q: Where should a petition to take
deposition before action be filed?
A: The verified petition shall be filed in the court
of the place of the residence of any expected
adverse party [Sec. 1, Rule 24].
O. Trial
Q: When is consolidation allowed?
A: The actions to be consolidated must involve
a common question of law or fact. This means
that the several actions which are pending
before the court, arise from the same act, event
or transaction, involve the same or like issues,
and depend largely or substantially on the
same evidence [Puncia v. Toyota Shaw I
Pasig, Inc., G.R. No. 214399, June 28, 2016].
P. Demurrer to Evidence
Q: What is the effect of granting demurrer
to evidence?
A: If the demurrer is granted, the case shall be
dismissed. However, if, on appeal, the order
granting the motion is reversed, the defendant
loses his right to present evidence [Sec. 1, Rule
33, Rules of Court; Republic v. Tuvera, 516
SCRA 113, 136]
Q: What is the difference between demurrer
in a civil case and demurrer in a criminal
case? [ L A M E ]
A:
1. In a civil case, leave of court is not required
before filing a demurrer. In a criminal case,
a demurrer is filed with or without leave of
court [Sec. 23, Rule 119, Rules of Criminal
Procedure].
2. In a civil case, if the demurrer is granted,
the order of dismissal is appealable [Sec.
1, Rule 33, Rules of Court]. In a criminal
case, the order of dismissal is not
appealable because of the constitutional
policy against double jeopardy. The
dismissal is equivalent to the acquittal of
the accused.
3. In a civil case, if the demurrer is denied, the
defendant may proceed to present his
evidence [Sec. 1, Rule 33, Rules of Court].
In a criminal case, the accused may
adduce his evidence only if the demurrer is
filed with leave of court. He cannot present
Page 19 of 128
REMEDIAL LAW
his evidence if he filed the demurrer without
leave of court [Sec. 23, Rule 119, Rules of
Court].
4. In a civil case, the court cannot, on its own,
make a demurrer. In a criminal case, the
court may do so [Sec. 23, Rule 119, Rules
of Court]. Motu proprio
Q. Judgments and Final Orders
Judgment After Pre-Trial
When the court includes in the pre-trial order
that the case be submitted for summary
judgment or judgment on the pleadings,
judgment shall be rendered within 90 calendar
days from termination of pre-trial. [Sec. 10,
Rule 18]
Q: When can the court order judgment after
pre-trial?
A: The court may order such motu proprio or
upon motion of any party and upon a showing
that: [ C G A T ]
1. There be no more controverted facts,
2. No more genuine issue as to any material
fact,
3. There be an absence of any issue, or
4. Should the answer fail to tender an issue.
[Sec. 10, Rule 18]
Judgment Without Trial
Q: In which cases can judgment be
rendered without trial?
A: Trial is unnecessary in the following
instances: [ S P A R D A ]
1. Judgment on the Pleadings [Rule 34]
2. Summary Judgment [Rule 35]
3. Upon compromise or amicable settlement,
either during pre-trial or during trial [Rule
18; Art. 2028, Civil Code]
4. Dismissal with prejudice [Sec. 13, Rule 15;
Secs. 3 and 5, Rule 17]
5. Under the Rules on Summary Procedure
6. When there is an agreed statement of facts
[Sec. 7, Rule 30]
Judgment on the Pleadings
Q: What are the grounds for judgment on
the pleadings?
A: The grounds for judgment on the pleadings [ T A ]
are: (a) where an answer fails to tender an
issue, or (b) otherwise admits the material
UP LAW BOC PRE-WEEK REMEDIAL LAW

allegations of the adverse party’s pleading [Sec Q: May there be partial summary judgment?
1, Rule 34] If so, what is its nature?
A: Yes, there can be a partial summary
Q: X brought an action against her husband judgment. Such judgment is merely
Y for annulment of their marriage on the interlocutory and not a final judgment.
ground of psychological incapacity, Y filed [Province of Pangasinan v. CA, 220 SCRA 726
his Answer to the Complaint admitting all (1992)]. It does not dispose of a case totally
the allegations therein contained. May X because the case can still be tried on the basis
move for judgment on the pleadings? of the remaining issues.
Explain.
A: No, because even if B’s answer to A’s For the Claimant
complaint annulment of their marriage admits A party seeking to recover upon a claim,
all the allegations therein contained, the counterclaim, or cross-claim or to obtain a
material facts alleged in the complaint must declaratory relief may, at any time after the
always be proved [Sec. 1, Rule 34].The court pleading in answer thereto has been served,
shall order the prosecutor to investigate move with supporting affidavits, depositions or
whether or not a collusion between the parties admissions for a summary judgment in his or
exists, and if there is no collusion, to intervene her favor upon all or any part thereof. [Sec 1,
for the State in order to see to it that the Rule 35]
evidence submitted is not fabricated [Sec. 3[e],
Rule 9] For the Defendant
A party against whom a claim, counterclaim or
Q: A judge of the MTC of Manila, rendered cross-claim is asserted or a declaratory relief is
a judgment without findings of facts. On sought may, at any time, move with supporting
appeal, what can the RTC judge do? affidavits, depositions or admissions for a
A: The RTC judge may remand the case for the summary judgment in his or her favor as to all
purpose of making such findings [Nicos or any part thereof. [Sec 2, Rule 35]
Industrial Corp v. CA, 206 SCRA 127]
Judgment on the Pleadings v. Summary
Summary Judgment Judgment [ I P B ]
Q: When may a claimant file a motion for
JUDGMENT ON SUMMARY
summary judgment?
THE PLEADINGS JUDGMENT
A: A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a Absence of a factual Involves an issue,
declaratory relief may, at any time after the issue in the case but the issue is not
pleading in answer thereto has been served, because the answer genuine
move with supporting affidavits, depositions or tenders no issue at
admissions for a summary judgment in his or all
her favor upon all or any part thereof [Sec 1,
Rule 35] Motion for judgment Motion for summary
on the pleadings is judgment may be
Q: When may summary judgment be filed by a claiming filed by either the
resorted to? party like a plaintiff or claiming or the
A: A summary judgment can be resorted to a counterclaimant. defending party.
only where there are no questions of fact in [Sec. 1, Rule 34] [Secs. 1-2, Rule 35]
issue or where the material allegations of the
pleadings are not disputed. [National Irrigation May be ordered motu May be ordered motu
Administration v. Gamit, 215 SCRA 436 proprio by the court. proprio by the court.
(1992)]. Where the defense interposed by the [Sec. 2, Rule 34] [Sec. 10, Rule 18]
defendant is not a valid defense, the court may
render a summary judgment, [Solid Manila
Corp v. Bio Hong Trading Co Inc., 195 SCRA
748 (1991)]

Page 20 of 128
UP LAW BOC PRE-WEEK
Based on the Based on the
pleadings alone pleadings, affidavits,
[Sec. 1, Rule 34] depositions and
admissions [Sec. 3,
Rule 35]
[Riano]
Contents of Judgments
Q: What is the general rule on the content
of judgments?
A: No decision shall be rendered by any court
without expressing therein clearly and distinctly
the facts and the law on which it is based.
No petition for review or motion for
reconsideration of a decision of the court shall
be refused due course or denied without stating
the legal basis therefor. [Sec. 13, Art VIII, 1987
Constitution]
Q: Is the requirement that there should be
findings of facts applicable to all decisions
or orders?
A: No. Some decisions or orders need not state
the findings of fact, especially if the order is
merely interlocutory. [Amargo v. CA, G.R. No.
No. L-31762 (1973)]. The requirement also
does not apply to minute resolutions, since
minute resolutions are not decisions, and
hence they do not need to comply with the
Constitutional requirement. [Commercial Union
Co. Ltd v. Lepanto Consolidated, 86 SCRA 78
(1982)]
Rendition of Judgments and Final Orders
Q: What is the promulgation of the
decision?
A: It is the process by which a decision is
published, officially announced, made known
to the public or delivered to the Clerk of Court
for filing, coupled with notice to the parties or
their counsel. [Neria v. Commissioner of
Immigration, 23 SCRA 812 (1968)]
Q: What constitutes the rendition of a
judgment?
A: The filing of the decision, judgment, or final
order with the Clerk of Court, not the signing of
the same, constitutes the rendition or
promulgation of the judgment [Castro v.
Malazo, 99 SCRA 164 (1980)]
Page 21 of 128
REMEDIAL LAW
Q: State the requirement for the validity of
memorandum decisions
A: The memorandum decision actually
embodies the findings of facts and conclusions
of law of the lower court in annex attached to
and made an indispensable part of the
decision. It cannot incorporate findings of facts
and conclusions of law of the lower court by
remote reference. [Francisco v. CA, 173 SCRA
324]
Q: State the essential requisites of a valid
judgment
A: They are:
1. The Court must have jurisdiction over the
subject matter;
2. The Court must have jurisdiction over the
person of the defendant, or of the res;
3. The court must have jurisdiction over the
issues;
4. The court must render the judgment after
the hearing
Q: What is the effect if a judgment is void?
A: It is, in legal effect, no judgment by which no
rights are divested, from which no rights may
be obtained, which neither builds nor bars
anyone and under which all acts are performed
and all claims are void. It cannot constitute res
judicata [Municipality of Antipolo v. IAC, 133
SCRA 320].
A void judgment may also be collaterally
attacked. [David v. Aquilizan, 94 SCRA 707]
Entry of judgment or final order
Q: What is an entry of judgment?
A: It refers to the physical act performed by the
clerk of court in entering the dispositive portion
of the judgment in the book of entries of
judgment and after the same has become final
and executory. The record shall contain the
dispositive portion of the judgment or final order
and shall be signed by the clerk of court, with a
certificate by said clerk that the judgment has
already become final and executory [Sec. 2,
Rule 36]
Q: When is a judgment entered?
A: If no appeal, or motion for new trial or
reconsideration is filed within the time provided
in the Rules, the judgment or final order shall
UP LAW BOC PRE-WEEK
forthwith be entered by the clerk in the book of
entries of judgments [Sec. 2, Rule 36]
Q: What is the rule of immutability of
judgment?
A: A decision that has acquired finality
becomes immutable and unalterable, and may
no longer be modified in any respect, even if
the modification is meant to correct erroneous
conclusions of fact and law, and whether it be
made by the court that rendered it, or by the
highest court in the land. [Bigler v. People, G.R.
No. 210972 (2016)]
Once a decision or order becomes final and
executory, it is removed from the power or
jurisdiction of the court which rendered it to
further alter or amend it. [Siliman University v.
Fontelo-Paalan, G.R. No. 170948 (2007)]
The reason is two-fold:
1. To avoid delay in the administration of
justice, and to make orderly the discharge
of judicial business; and
2. To put an end to judicial controversies at
the expense of occasional errors.
Q: What are the exceptions to the rule?
A: The exceptions to the doctrine of
immutability of judgment are: [ C N T V I S G ]
1. Correction of clerical errors [Filipinas
Palmoil Processing, Inc. v. Dejapa, G.R.
No. 167332 (2011)]
2. Nunc pro tunc entries [Filipinas Palmoil
Processing, Inc. v. Dejapa, G.R. No.
167332 (2011)]
3. Whenever circumstances transpire after
finality of the decision, rendering its
execution unjust and inequitable [Apo
Fruits Corp. v. Land Bank of the Phils.,
G.R. No. 164195 (2010)]
4. In cases of special and exceptional nature,
when it is necessary in the interest of
justice to direct modification in order to
harmonize the disposition with the
prevailing circumstances [Industrial Timber
Corp. v. Ababon, G.R. No.164518 (2006)]
5. In case of void judgments [FGU Insurance
v. RTC Makati, G.R. No. 161282 (2011)]
6. Where there is a strong showing that a
grave injustice would result from an
application of the Rules [Almuete v.
People, G.R. No. 179611 (2013)]
Page 22 of 128
REMEDIAL LAW
7. When there are grounds for annulment of
judgment or petition for relief [Gochan v.
Mancao, G.R. No. 182314 (2013)]
R. Post-Judgment Remedies
1. Motion for New Trial/Motion for
Reconsideration
a. Grounds
Q: What are the grounds for new trial? [ Famen N Eia ]
A: The following are the grounds for new trial:
1. Fraud, accident, mistake or excusable
negligence which ordinary prudence could
not have guarded against and by reason of
which such aggrieved party has probably
been impaired in his rights;
2. Newly discovered evidence, which he
could not, with reasonable diligence, have
discovered, and produced at the trial, and
which if presented would probably alter the
result;
3. Award of excessive damages or
insufficiency of the evidence to justify the
decision, or that the decision is against the
law. [Sec 1, Rule 37]
Q: C instructed his secretary to file the
answer but the latter suddenly became sick
and hospitalized. Does it constitute
excusable neglect?
A: Yes. In Herrera v. Far Eastern Air Transport,
the Court stated that failure to answer due to
employer’s sudden illness where the lawyer
was not informed, constitutes excusable
neglect.
Q: If a motion for new trial is based on newly
discovered evidence, how shall it be
proved?
A: It shall be supported by affidavits of
witnesses by whom such evidence is expected
to be given or by duly authenticated documents
which are proposed to be introduced in
evidence. [Sec 2, Rule 37]
Q: When may fraud be a ground for new
trial?
A: Fraud may be a ground only when it is
extrinsic. Extrinsic fraud is fraud committed by
the prevailing party outside of the trial of the
UP LAW BOC PRE-WEEK REMEDIAL LAW

case which prevents a party from having his
day in curt or from presenting all of his cases in
the court. [Makabingkil v. PHHC, 72 SCRA 326
(1976)] This is as opposed to intrinsic fraud,
which refers to the acts of a party in litigation
during the trial which did not affect the
presentation of the case but did not prevent a
fair and just determination of the case. [Libudan
v. Gil, G.R. No. L-21163 (1972)]
Q: What kind of mistake constitutes a
ground for new trial?
A: It must be a mistake of fact and not of law.
Everyone is presumed to know the law.
commencement and end of the suit but it is not
the final decision on the whole controversy. It
leaves something to be done by the court
before the case is finally decided on the merits
[Metropolitan Bank &. Trust Co. v. Court of
Appeals, G.R. No. 110147, April 17, 2001]
3. Appeal
Q: What may be the subject of appeal?
A: An appeal may be taken from a judgment or
final order that completely disposes of the
case, or a particular matter. [Sec 1, Rule 41]

b. When to File INTERLOCUTORY

FINAL ORDER
ORDER
Q: Within what period should a motion for
One that finally One that determines
new trial be filed?
disposes of a case, incidental matters
A: A motion for new trial should be filed within
leaving nothing more that does not touch
the period for taking an appeal. [Sec 1, Rule
to be done by the on the merits of the
37]. Hence, it must be filed before the finality of
Court in respect case or put an end to
judgment. [Velasco v. Ortiz, 184 SCRA 303
thereto. the proceedings.
(1990)]
[Investments, Inc. v. [Silverio Jr. v. Filipino
CA, G.R. No. L60036 Business
c. Denial of the Motion; Effect
(1987)] Consultants, Inc.
G.R. No. 143312
Q: What is the remedy of a party whose
(2005)]
motion for new trial or reconsideration is
denied? Subject to appeal Proper remedy to
A: An order denying a MNT or MR is not [Investments, Inc. v. question an
appealable. The remedy is an appeal from the CA, G.R. No. L60036 improvident
judgment or final order [Sec. 9, Rule 37] (1987)] interlocutory order is
a petition for
d. Grant of the Motion; Effect certiorari under Rule
65 [Silverio Jr. v.
Q: What is the effect of the grant of an Filipino Business
MNT/MR? Consultants, Inc.,
A: If a new trial is granted in accordance with G.R. No. 143312
the provisions of this Rules the original (2005)]
judgment or final order shall be vacated, and
the action shall stand for trial de novo; but the Must express clearly Not considered
recorded evidence taken upon the former trial, and distinctly the decisions or
insofar as the same is material and competent facts and the law on judgments within the
to establish the issues, shall be used at the new which it is based. constitutional
trial without retaking the same. [Sec. 6, Rule [Sec. 14, Art. VIII, definition [Riano]
37] Constitution]

2. Matters Not Appealable

Q: What is an interlocutory order?

A: An interlocutory order is an order which
decides some point or matter between the

Page 23 of 128
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a. Matters Not Appealable
Q: State the orders or judgments that may
not be appealed from. [ DIE OP ]
A: No appeal may be taken from:
1. An order denying a petition for relief or any
similar motion seeking relief from
judgment;
2. An interlocutory order;
3. An order disallowing or dismissing an
appeal;
4. An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud,
mistake or duress, or any other ground
vitiating consent;
5. An order of execution;
6. A judgment or final order for or against one
of more of several parties or in separate
claims, counterclaims, cross-claims and
third-party complaints, while the main case
is pending, unless the court allows an
appeal therefrom;
7. An order dismissing an action without
prejudice [Sec. 1, Rule 41]
Q: If the remedy of appeal is not available,
what remedies may be availed of by the
aggrieved party?
A: The aggrieved party may avail of the special
civil action for certiorari or prohibition in case of
lack of or excess of jurisdiction or if there is
grave abuse of discretion. If there is non-
performance of a duty or obligation, he may
avail of the remedy of mandamus. But it must
be recalled that these remedies cannot be
substitutes for appeal, for if appeal was
available through the fault of the party availing
of it, then these extraordinary remedies cannot
be availed of.
b. Modes of Appeal
Q: What are the various modes of appeal?
A: The modes of appeal are:
1. Ordinary appeals from decisions rendered
by the MTC [Rule 40] and the RTC [Rule
41] in the exercise of original jurisdiction
2. Petition for review under Rule 42, for cases
decided by RTC in exercise of appellate
jurisdiction.
3. Petition for review under Rule 43, from
wards, judgments, final orders or
Page 24 of 128
PRE-WEEK REMEDIAL LAW
resolutions of or authorized by any quasi-
judicial entity in the exercise of its quasi-
judicial functions
4. Petition for review on certiorari under Rule
45, from judgments or final orders or
resolutions of the CA, the Sandiganbayan,
the RTC or other courts whenever
authorized by law, for cases where only
questions of law are raised or involved.
Q: What are the modes of appeal to the
Supreme Court?
A: The modes of appeal to the Supreme Court
are: (a) appeal by certiorari on pure questions
of law under Rule 45 through a petition for
review on certiorari; and (b) ordinary appeal in
criminal cases through a notice of appeal from
convictions imposing reclusion perpetua or life
imprisonment or where a lesser penalty is
involved but for offenses committed on the
same occasion or which arose out of the same
occurrence that gave rise to the more serious
offense [Sec. 3, Rule 122]. Convictions
imposing the death penalty are elevated
through automatic review.
Q: Distinguish the two (2) modes of appeal
from the judgment of the Regional Trial
Court to the Court of Appeals.
A: In cases decided by the Regional Trial
Courts in the exercise of their original
jurisdiction, appeals to the Court of Appeals
shall be ordinary appeal by filing written notice
of appeal indicating the parties to the appeal;
specifying the judgment/final order or part
thereof appealed from; specifying the court to
which the appeal is being taken; and stating the
material dates showing the timeliness of the
appeal. The notice of appeal shall be filed with
the RTC which rendered the judgment
appealed from and copy thereof shall be
served upon the adverse party within 15 days
from notice of judgment or final order appealed
from. But if the case admits of multiple appeals
or is a special proceeding, a record on appeal
is required aside from the written notice of
appeal to perfect the appeal, in which case the
period for appeal and notice upon the adverse
party is not only 15 days but 30 days from
notice of judgment or final order appealed from.
The full amount of the appellate court docket
fee and other lawful fees required must also be
paid within the period for taking an appeal, to
UP LAW BOC PRE-WEEK REMEDIAL LAW

the clerk of the court which rendered the

to appeal of the other
judgment or final order appealed from [Secs. 4
parties.
and 5, Rule 41]. The periods of 15 or 30 days
above-stated are non-extendible.
Q: When is a record on appeal required?
In cases decided by the Regional Trial Court in A: A record on appeal is required in the
the exercise of its appellate jurisdiction, appeal following cases: [ S M E R O F ]
to the Court of Appeals shall be by filing a 1. Special proceedings;
verified petition for review with the Court of 2. Multiple or separate appeals;
Appeals and furnishing the RTC and the 3. Order of expropriation in eminent domain
adverse party with copy thereof, within 15 days proceedings [Sec. 2, Rule 67]
from notice of judgment or final order appealed 4. Judgment for recovery of property or
from. Within the same period for appeal, the partition with accounting [Roman Catholic
docket fee and other lawful fees required with Archbishop of Manila v. CA, G.R. No.
the deposit for cost should be paid. The 15-day 111324 (1996)]
period may be extended for 15 days and 5. Judgment for one or against one or more of
another 15 days for compelling reasons. several defendants, leaving the action to
proceed against the others [Sec. 4, Rule
Q: Distinguish a notice of appeal from a 36]
record on appeal 6. Foreclosure of mortgage [Roman Catholic
A: Archbishop of Manila v. CA, G.R. No.
111324 (1996)]
NOTICE OF RECORD ON
APPEAL APPEAL
However, even in cases where multiple
Normally, appeal is Required only in appeals are allowed, if all the issues have
made by filing a Special Proceedings already been dispensed with by the trial court,
notice of appeal with and other cases of filing a record on appeal is no longer
the court which multiple or separate necessary. [Marinduque Mining and Industrial
rendered the appeals. Corporation v. CA, 567 SCRA 483]
judgment or final
order appealed from Q: Where shall appeal be taken if a record
and serving a on appeal is required?
copy thereof upon A: Where a record on appeal is required, the
the adverse party. appellant shall file a notice of appeal and a
record on appeal within 30 days from the notice
Deemed perfected Deemed perfected of judgment or final order [Sec. 3, Rule 41]
as to him upon the as to him upon the
filing of the notice of approval of record on c. Issues to be Raised on Appeal
appeal. appeal.
Q: What is the rule on issues to be raised on
Period of appeal is Period of appeal is appeal?
15 days 30 days A: Issues that have not been raised before the
lower courts cannot be raised on the first time
The court loses The court loses on appeal [Spouses Erorita vs Spouses
jurisdiction over the jurisdiction only over Dumlao, G.R. No. 195477 (2016)]. The general
case upon (a) the subject matter rule is that the appellate court shall consider no
perfection of the thereof upon (a) error unless stated in the assignment of errors
appeal filed in due approval [Sec. 8, Rule 51]
time and (b) of the records on
expiration of the time appeal filled in due However, as an exception, the court may
of the appeal of the time and (b) consider an error not raised on appeal provided
other parties expiration of the time that it is an error:

Page 25 of 128
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1. That affects the jurisdiction over the subject
matter,
2. That affects the validity of the judgment
appealed from,
3. Which affects the validity of the
proceedings,
4. That is closely related to or dependent to
an assigned error, and properly argued in
brief
5. That is a plain clerical error,
6. Of which consideration is necessary to
arrive at a just decision and complete
resolution of the case or serve the interests
of justice, or
7. Raised in the trial court and are matters of
record having such bearing on the issue
submitted which the parties failed to raise
or which the lower court
Q: State the “harmless error rule” in
appellate decisions
A: No error in either the admission or the
exclusion of evidence and no error or defect in
any ruling or order or in anything done or
omitted by the trial court or by any of the parties
is ground for granting a new trial or for setting
aside, modifying, or otherwise disturbing a
judgment or order, unless refusal to take such
action appears to the court inconsistent with
substantial justice. The court at every stage of
the proceeding must disregard any error or
defect which does not affect the substantial
rights of the parties [Sec. 6, Rule 51].
d. Period of Appeal
Q: What is the fresh period rule?
A: To standardize the appeal periods provided
in the Rules and to afford litigants fair
opportunity to appeal their cases, the Court
deems it practical to allow a fresh period of 15
days within which to file the notice of appeal,
counted from the receipt of the order
dismissing a motion for new trial or motion for
reconsideration [Neypes v. CA, G.R. No.
141524, September 14, 2005].
Q: When is the fresh period rule applicable?
A: The fresh period rule shall apply to:
1. Rule 40 governing appeals from the MTCs
to the RTCs
2. Rule 41 governing appeals from the RTCs
to CA
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REMEDIAL LAW
3. Rule 42 on petitions for review from the
RTCs to the CA
4. Rule 43 on appeals from quasi-judicial
agencies to the CA, and
5. Rule 45 governing appeals by certiorari to
the SC [Neypes v. CA, G.R. No. 141524,
September 14, 2005].
Q: What is the effect of filing a second
motion for reconsideration?
A: The period for which a second motion for
reconsideration is pending is not deducted from
the 15-day period to appeal. If the appeal
period lapses during such pendency, the
decision becomes final and executory.
[Destileria Limtuaco & Co v. IAC, G.R. No L-
63053 (1986)]
4. Petition for Relief from
Judgment
Q: With what court should a petition for
relief from judgment be filed?
A: It may be filed in the same court where the
original judgment was rendered. The Rules
provide that when a judgment or final order is
entered, or any other proceeding is thereafter
taken against a party in any court through
fraud, accident, mistake or excusable
negligence, he may file a petition in such court
and in the same case, praying that the
judgment, order or proceeding be set aside.
[Sec. 1, Rule 38]
e. Period to File Action
Q: What is the period for filing a petition for
relief from judgment?
A: A petition for relief from judgment must be
filed within: (a) 60 days from knowledge of final
judgment, order or other proceedings to be set
aside, and (b) six (6) months from entry of
judgment, order, or other proceeding. These
two periods must concur. Both periods are non-
extendible and never interrupted. [First
Integrated Conding & Inc Co v. Hernando, 199
SCRA 796 (1991)]
UP LAW BOC PRE-WEEK REMEDIAL LAW

Q: Is a petition for relief from judgment or Q: Distinguish a Motion for New Trial or
final order available in case of denial of Reconsideration from a Petition for Relief
appeal? from Judgment [ A A G F R R V ]
A: Yes, it is. When a judgment or final order is A:
rendered by any court in a case, and a party
MOTION FOR NEW PETITION FOR
thereto, by fraud, accident, mistake or
TRIAL OR RELIEF FROM
excusable negligence, has been prevented
RECONSIDERATION JUDGMENT
from taking an appeal, he may file a petition in
such court and in the same case praying that Available before Available after
the appeal be given due course. [Sec. 2, Rule judgment becomes judgment has
38] final and executory. become final and
executory.
Q: What is the distinction between the
petition under Sec 1 and Sec 2 of Rule 38? Applies to judgments Applies to
A: In Sec. 1, Rule 38, the petition is to set aside or final judgments, final
the judgment or final order; while under Sec 2, orders only. orders and other
the purpose of the petition is to pray that the proceedings:
appeal be given due course.
Grounds for motion Grounds: (FAME)
Q: Upon the filing of the petition for relief for new trial: Fraud, accident,
and it is sufficient in form and substance, 1. Fraud, accident, mistake or
what shall the court do? mistake or excusable
A: If the petition is sufficient in form and excusable negligence.
substance to justify relief, the court in which it negligence;
is filed, or a judge thereof, shall issue an order (FAME)
requiring those against whom the petition is 2. Newly discovered
filed to answer the same within fifteen (15) days evidence [Sec. 1].
from the receipt thereof, which order shall be
served in such manner as the court may direct, Grounds for motion
together with copies of the petition [Sec 4, Rule for reconsideration:
38] 1. The damages
awarded are
Q: May the petition for relief from judgment excessive;
be filed beyond the 60-day period? 2. That the evidence
A: As a rule, it should be filed within the 60-day is insufficient to
period. But it has been allowed beyond the justify the decision
period of 60 days on grounds of equity, or final order, or
especially so that he has already presented 3. That the decision
evidence. [Funtila v. CA, 93 SCRA 251] or final order is
contrary to law
In PHHC v. Tionco [12 SCRA 471 (1964)], it [Sec. 1, Rule 37].
was allowed even if the irresponsible lawyer
filed it beyond the 60-day period, in the best Filed within the time to Filed within 60 days
interest of justice. appeal. from knowledge of
the judgment and
Q: When is accident a ground for relief from within 6 months
judgment? from entry of
A: Accident is a ground for petition for relief judgment.
when the party seeking it had exercised
ordinary diligence to ascertain the facts which Legal remedy Equitable remedy
it is claimed to have surprised or prevented
said party from presenting his case. [Sunico v. The order of denial is The order of denial
Villapando, 14 Phil. 352 (1909)] not appealable. The is not appealable;

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remedy is to appeal the remedy is
from the judgment or appropriate special
final order on the civil action under
merits. Rule 65.
Motion need not be Petition must be
verified verified
5. Annulment of Judgments or
Orders or Final Resolutions
Q: Which court has exclusive original
jurisdiction over actions to annul
judgments of the RTC?
A: It is the Court of Appeals that has exclusive
original jurisdiction over actions for annulment
of judgments of the Regional Trial Court [Sec.
1, Rule 47; Sec. 9(2), B.P. 129]
Q: When is the remedy of annulment of
judgments available?
A: It is available if the ordinary remedies of new
trial, appeal, petition for relief, or other
appropriate remedies are no longer available
through no fault of the petitioner. [Sec. 1, Rule
47]. However, it is not a substitute for a lost
appeal. [Mercado v. Security Bank, G.R. No.
160445 (2006)] If the loss of the remedy of
appeal is due to the party’s and his former
counsel’s fault, the remedy is not available.
[Sps Sanchez v. Vda de Aguilar, G.R. No.
228680 (2018)]
Q: State the grounds for annulment of a
judgment of the Regional Trial Court [ F J ]
A: Annulment of judgment may be based on
the ground of (1) extrinsic fraud; or (2) lack of
jurisdiction [Sec. 2, Rule 47]
Q: What are the contents of the action to file
an annulment of judgment?
A: The action shall be commenced by filing a
verified petition alleging therein with
particularity the facts and the law relied upon
for annulment, as well as those supporting the
petitioner’s good and substantial cause of
action or defense, as the case may be.
The petition shall be filed in seven (7) clearly
legible copies together with sufficient copies
corresponding to the number of respondents. A
certified true copy of the judgment or final order
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or resolution shall be attached to the original
copy of the petition intended for the court and
indicated as such by the petitioner.
The petitioner shall also submit together with
the petition affidavits of witnesses or
documents supporting the cause of action or
defense and a sworn certification that he has
not theretofore commenced any other action
involving the same issue in the Supreme Court,
the Court of Appeals, or different divisions
thereof, or any other tribunal or agency; if there
is such other action or proceeding, he must
state the status of the same, and if he should
thereafter learn that a similar action or
proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal
or agency, he undertakes to promptly inform
the aforesaid courts and other tribunal or
agency thereof within five (5) days therefrom.
[Sec. 4, Rule 47]
Q: What is the effect of the action to annul
judgment?
A: A judgment of annulment shall set aside the
questioned judgment or final order or resolution
and render the same null and void, without
prejudice to the original action being refiled in
the proper court. However, where the judgment
or final order or resolution is set aside on the
ground of extrinsic fraud, the court may on
motion order the trial court to try the case as if
a timely motion for new trial had been granted
therein [Sec. 7, Rule 47]
The prescriptive period for the refiling of the
aforesaid original action shall be deemed
suspended from the filing of such original
action until the finality of the judgment of
annulment. However, the prescriptive period
shall not be suspended where the extrinsic
fraud is attributable to the plaintiff in the original
action [Sec. 8, Rule 47]
UP LAW BOC PRE-WEEK REMEDIAL LAW

S. Execution, Satisfaction, and Q: What portion of the judgment may be

executed?
Effect of Judgments A: The only portion of a decision that becomes
subject of execution is the one ordained in the
1. Final judgments for the dispositive part. Whatever may be found in the
purposes of appeal vs. for body of the decision can only be considered as
purposes of execution part of the reasons or conclusions of the court,
and while they may serve as guide or
enlightenment to determine the ratio decidendi,
FOR THE FOR THE
what is controlling is what appears in the
PURPOSE OF PURPOSE OF
dispositive part of the decision. [Albano, citing
APPEAL EXECUTION
Robles v. Timario and Pelejo v. CA]
It refers to a The word “final” may
judgment that refer to a judgment 2. When execution shall issue
disposes of a case in that is no longer
a manner that leaves appealable and is Q: When shall execution issue?
nothing more to be already capable of A: A final and executory judgment or order may
done by the court in being executed be executed on motion within five (5) years
respect thereto. In because the period from the date of its entry. After the lapse of such
this sense, a final for appeal has time, and before it is barred by the stature of
judgment is elapsed without a limitations, a judgment may be enforced by
distinguished from party having action [Ting v. Heirs of Diego Lirio, G.R. No.
an interlocutory perfected an appeal 16891, (2007)].
order which does not or if there has been
finally terminate or appeal, it has already Q: When does the 5-year period to execute
dispose of the case been resolved by a a judgment commence?
[Rudecon highest possible A: The 5-year period to execute judgment
Management Corp. tribunal [PCGG v. commences from its finality. [Sec. 6, Rule 39;
v. Singson, G.R. No. Sandiganbayan, Villaruel v. CA, G.R. No. 79927 (1989)]. Under
150798, (2005)]. G.R. Nos. 151809- Sec 8, Rule 70, in ejectment cases, there may
12, (2005)]. be immediate execution. The period of
prescription runs against the defendant only
upon the finality of the judgment. [Rizal
Q: As a rule, only a final judgment becomes Commercial Banking Corp v. Serra, G.R. No.
executory? Are there exceptions? 203241 (2013)]
A: Yes, there are exceptions, such as: [ Spl Feud Ira ]
1. An order granting support pendente lite Q: When does execution issue as a matter
which is enforceable by execution; of right?
2. A judgment by an inferior court against the A: Execution will issue as a matter of right
defendant in a forcible entry or unlawful when: [ F W L R ]
detainer case which is affirmed by the RTC 1. The judgment has become final and
unless the defendant appeals, files a bond, executory [Sec. 1, Rule 39];
and pays the monthly rentals; [ B A R ] 2. Judgment debtor has renounced or waived
3. Judgment in case of an injunction, his right to appeal;
receivership, or accounting which shall not 3. The period for appeal has lapsed without
be stayed after their rendition and before an appeal having been filed; or
appeal is taken, or during the pendency of 4. Having been filed, the appeal has been
an appeal, unless otherwise ordered by the resolved and the records of the case have
court. been returned to the court of origin
[Florendo v. Paramount Insurance Corp,
G.R. No. 167976, (2010)].

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Q: When may discretionary execution

2. The appellate
issue?
court after the
A: Discretionary execution may only issue
trial court has
upon good reasons to be stated in a special
lost jurisdiction
order after due hearing [Sec 2, Rule 39]
over the case
“Good reasons” have been held to consist of
compelling circumstances that justify Procedure for issuance
immediate execution lest the judgment
becomes illusory. Circumstances must be 1. There must be a While the issuance of
superior, outweighing the injury or damages motion filed by the writ is ministerial
that might result should the losing party secure the prevailing upon the court,
a reversal of the judgment [Florendo v. party with notice execution shall issue
Paramount Insurance Corp., G.R. No. 167976 to the adverse only on motion. A
(2010)]. party; judge may not order
2. The motion must execution of
Q: Compare and Contrast Discretionary be filed in the trial judgment in the
Execution v. Execution as a Matter of Right or appellate decision itself. Even
court; if immediately
DISCRETIONARY MATTER OF RIGHT 3. There must be executory, there
good reason to must be a motion to
When issued justify execution that effect and a
pending appeal hearing called for
May issue before the Period to appeal has 4. The good that person.
lapse of period to already lapsed and reason/s must be
appeal, and even no appeal is stated in a
during appeal perfected special order
after due
Discretionary upon Ministerial duty of the hearing.
the court; there is court provided there
inquiry on are no supervening
whether there is events Q: When may discretionary execution be
good reason for stayed?
execution, stated in a A: It may be stayed upon approval by the
special order after proper court of a sufficient supersedeas bond
hearing [Sec 2(a), filed by the party against whom execution is
Rule 39] directed, conditioned upon the performance of
the judgment or order allowed to be executed
in case it shall be finally sustained in whole or
Who may issue
in part. The bond thus given may be proceeded
against on motion with notice to the surety
The court which has Only the court of [Sec. 3, Rule 39]
jurisdiction over the origin can issue the
case: writ of execution. Q: When may a court grant a motion for
1. May be the trial execution pending appeal?
court while it has A: The Court may grant a motion for execution
jurisdiction over pending appeal while it has jurisdiction over the
the case and is in case and is in possession of either the original
possession of record or the record on appeal, at the time of
either the original the filing of such motion. It can do so even
record or the before the expiration of the period to appeal.
record on appeal [Sec. 2(a), Rule 39]. The prevailing party may
file a motion for execution pending appeal with

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the court that rendered the judgment before it
loses jurisdiction over the case or the subject
matter thereof. [Abe Ind Inc v. IAC, 162 SCRA
48]
3. How judgment is executed
Q: How is a judgment executed?
A: Execution shall issue as a matter of right, on
motion, upon a judgment or order that disposes
of the action or proceeding upon the expiration
of the period to appeal therefrom if no appeal
has been duly perfected. [Sec 1, Rule 39]
Q: How may the execution of a judgment be
enjoined? [ P A N ]
A: It may be enjoined by either of the following:
1. Petition for relief from judgment with prayer
for an injunction or with a temporary
restraining order;
2. Annulment of judgment;
3. Novation of judgment. In this case, the
parties may, despite the final judgment,
submit a compromise. The court may
approve it.
Q: May the execution of a judgment be done
as against the properties of another
person?
A: No. Execution of the judgment extends only
to the properties of the debtor. [Wong v. IAC,
G.R. No. 70082 (1991)]. The rule is because to
execute the judgment against strangers to the
case would amount to deprivation of property
without due process of law. [Fermin v. Esteves,
G.R. No. 147977 (2006)]
Q: A judgment was rendered in favor of D
against E. If E dies and the claim is one for
sum of money, what should be done by A to
protect his interest in the judgment?
A: He must file his claim in the estate
proceedings within a period of not less than 6
months but not more than 1 year. If there is no
pending settlement proceeding, he should
commence one and file his money claim
therein. [PNB v. Villarin, 66 SCRA 590 (1975)]
Q: What is a dormant judgment?
A: A dormant judgment is one which has not
been enforced by motion within 5 years after its
entry and is thus reduced to a mere right of
action in favor of judgment-obligee. It may be
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enforced by filing an action for revival of
judgment and enforcing the decision therein
[Salvante v. Cruz, No. L-2531, (1951)].
Q: State the nature of an action for revival
of judgment
A: An action for revival of judgment is no more
than a procedural means of securing the
execution of a previous judgment which has
become dormant after the passage of five (5)
years without it being executed upon motion of
the prevailing party. It is not intended to re-
open any issue affecting the merits of the
judgment debtor’s case nor the propriety or
correctness of the first judgment. An action for
revival of judgment is a new and independent
action, different and distinct from the recovery
of property case or the reconstitution case,
wherein the cause of action is the decision itself
and not the merits of the action upon which the
judgment sought to be enforced is rendered.
Revival of judgment is premised on the
assumption that the decision to be revived,
either by motion or by independent action, is
already final and executory [Saligumba v.
Palanog, G.R. No. 143365 (2008)]
Q: Which court has jurisdiction over an
action for revival of judgment?
A: The RTC has jurisdiction over a petition for
revival of judgment. It may be in the same court
where the judgment was rendered, or in the
place, where the defendant or plaintiff resides
or place designated by the statutes which treat
the venue of actions in general. [Heirs of
Miranda Sr v. Miranda, G.R. No. 179638
(2013)]
4. Proceedings where property is
claimed by third persons
Q: What are the requisites for a claim by a
third person?
A: The requisites are: [ Pl Coas ]
1. The property is levied;
2. The claimant is a person other than the
judgment obligor or his agent;
3. The claimant makes an affidavit of his title
thereto or right to the possession thereof
stating the grounds of such right or title;
and
UP LAW BOC PRE-WEEK REMEDIAL LAW

4. The claimant serves the same upon the f. In Relation to Third-Party Claim
officer making the levy and the judgment in Attachment and Replevin
oblige [Sec. 16, Rule 39]
TPC UNDER RULE TPC UNDER WPA
Q: What is the effect of a third-party claim?
39 AND REPLEVIN
A: The officer shall not be bound to keep the
property, unless such judgment obligee, on If the claim is filed If it is filed under Sec.
demand of the officer, files a bond approved by under Sec. 16, Rule 14, Rule 57
the court to indemnify the third-party claimant 39, it must be filed in (Attachment) or
in a sum not less than the value of the property a separate action under Sec. 7, Rule
levied on [Sec. 16, Rule 39] instituted for the 60 (Replevin), the
purpose. claim may be
Q: MN and OP are married. OP was sued for litigated in the same
damages due to a libelous statement and action involved or in
was held liable. Levy was made upon her a separate suit.
personal properties, but since they were not
enough to answer for the judgment liability, Intervention is no Intervention is
a real property forming part of their longer allowed since allowed as the action
conjugal partnership was sold. What is the judgment has is still pending in
remedy of the husband? Explain. already been court.
A: MN can file for terceria since the conjugal rendered
property cannot be made to answer for the
liability of the wife.
5. Rules on Redemption
Apart from the remedy of terceria available to a
third-party claimant or a stranger to the Q: When is redemption under Rule 39
foreclosure suit against the sheriff or officer available?
effecting the writ by serving on him an affidavit A: Such right is available only to real
of his title and a copy thereof upon the properties. It is not available as to personal
judgment creditor, a third-party claimant may properties, since nothing in the Rules of Court
also resort to an independent separate action, provides for redemption of personal property.
the object of which is the recovery of ownership
or possession of the property seized by the Q: Who may redeem?
sheriff, as well as damages arising from A: The following may redeem:
wrongful seizure and detention of property. If a 1. The judgment obligor, or his successor in
separate action is the recourse, the third-party interest in the whole or any part of the
claimant must institute in a forum of competent property
jurisdiction an action, distinct and separate 2. A creditor (redemptioner) having a lien by
from the action in which the judgment is being virtue of an attachment, judgment or
enforced, even before or without need of filing mortgage on the property sold, or on some
a claim in the court that issued the writ. [Sps part thereof, subsequent to the lien under
Buado v. CA, G.R. No. 145222 (2009)] which the property was sold [Sec. 27, Rule
39]
The reason for this rule is that conjugal
properties cannot be made to answer for Q: When can redemption be made?
personal debts contracted by the husband or Judgment Within 1 year from the
the wife before or during the marriage which did obligor date of registration of the
not redound to the benefit of the family. Civil certificate of sale
liability for slander, of course, could not have
redounded to the benefit of the family. [Art. 122, First Within 1 year from the
FC] redemptioner date of registration of the
certificate of sale

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All Within 60 days from last
subsequent redemption
redemptioners
[Sec. 28, Rule 39]
Q: What must be paid by the judgment
obligor or first redemptioner in order to
redeem the property?
A: The judgment obligor, or redemptioner, may
redeem the property from the purchaser at any
time within 1 year from the date of the
registration of the certificate of sale by paying
the purchaser: [ A T L 1% ]
1. The amount of his purchase;
2. Amount of any assessments or taxes which
the purchaser may have paid after
purchase;
3. If the purchaser be also a creditor having a
prior lien to that of the redemptioner, other
than the judgment under which such
purchase was made, the amount of such
other lien; and
4. With 1 percent per month interest up to the
time of redemption [Sec. 28, Rule 39]
For subsequent redemptioners: [ A T L 2% ]
1. Amount paid on last redemption,
2. 2% interest thereon,
3. Any amount of assessments or taxes which
purchaser may have paid after purchase as
well as interest on such last named amount
at the same rate, and
4. The amount of any liens held by said last
redemptioner prior to his own, also with
interest
6. Effects of Final Judgments or
Orders
Q: What are the dual aspects of res
judicata?
A: The dual aspects of res judicata are:
1. Judgment on the merits in the first case
constitutes an absolute bar to the
subsequent action not only as to every
matter which was offered and received to
sustain or defeat the claim or demand, but
also to any other admissible matter which
might have been offered for that purpose
and to all matters that could have been
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adjudged in that case. This is called ‘bar by
prior judgment’. [Sec. 47(b) Rule 39]
2. The second action is upon a different claim
or demand, the judgment in the first case
operates as an estoppel only with regard to
those issues directly controverted, upon
the determination of which the judgment
was rendered. This is called
‘conclusiveness of judgment’ [Sec. 47(c)
Rule 39]
Q: What are the requisites of res judicata by
bar by prior judgment?
A: The requisites of res judicata are: [ F J M Ipsc ]
1. A final judgment or order;
2. Jurisdiction over the subject matter and the
parties by the court rendering it;
3. Judgment on the merits;
4. Between the two cases, there is:
a. Identity of parties
b. Identity of subject matter;
c. Identity of causes of action [Villarino v.
Avila, G.R. No. 131191 (2006)]
SPECIAL CIVIL ACTIONS
A. Nature of Special Civil
Actions
Q: What rules govern special civil actions?
A: Special civil actions are also governed by
the rules on ordinary civil actions, subject to the
specific rules prescribed for a special civil
action. [Sec. 3(a), Rule 1]
Q: How are special civil actions
commenced?
A: Interpleader, expropriation, foreclosure of
real estate mortgage, partition, and forcible
entry or unlawful detainer are commenced by [ F PIE Feud ]
complaints; while declaratory relief and similar
remedies, review of adjudications of the
constitutional commissions, certiorari,
prohibition, mandamus, quo warranto, and
contempt are initiated by petitions. [ D C C P M Q C ]
UP LAW BOC PRE-WEEK REMEDIAL LAW

B. Distinguish Between Ordinary [1 Regalado 771,

Civil Actions 2010 Ed.]

ORDINARY CIVIL SPECIAL CIVIL C. Jurisdiction and Venue

ACTION ACTION
Q: Are there special civil actions which can
A party sues another A party also files the be brought in the inferior courts or courts
for the enforcement action for the of first level? [ I E C ]
or protection of a enforcement or A: Yes. They are:
right or prevention or protection of a right 1. Interpleader, provided the amount involved
redress of a wrong. or prevention or is within its jurisdiction [Makati
[Sec. 3(a), Rule 1] redress of a wrong Development Corp. vs. Tanjuatco, et al,
G.R. No. L-26443, Mar. 25, 1969];
Governed by the Also governed by 2. Ejectment suits [Rule 70]; and
ordinary rules. [Sec. ordinary rules but 3. Contempt [Secs. 1 and 4, Rule 71]
3, Rule 1] subject to specific
rules prescribed.
[Sec. 3, Rule 1] D. Certiorari, Prohibition, and
Mandamus
Must be based on a Some special civil
cause of action actions do not have Q: When are the petitions for certiorari,
which means that to be based on a mandamus and prohibition not available?
there must have cause of action (e.g. A:
been a violation of interpleader). [1 1. Rule on summary procedure as to
plaintiff’s rights. Regalado 771, 2010 interlocutory order issued by the lower
[Sec. 1, Rule 2] Ed.] court [Sec. 19(g), Rules on Summary
Procedure];
Venue is determined Venue is generally 2. Writ of amparo against any interlocutory
by either the governed by the order [Sec. 11(l)],
residence of the general rules on 3. Rule on Writ of Amparo;
parties when action venue, except as 4. Petition for writ of habeas data against any
is personal or by the otherwise indicated interlocutory order [Sec. 13(l), A.M. No. 08-
location of the by special rules. [1 1-16]; and
property when the Regalado 771, 2016 5. Small claims cases against interlocutory
action is real. [Secs. Ed.] order issued by the lower court.
1-2, Rule 4]
Q: What are the requisites of a valid
Initiated by Initiated by complaint
certiorari? [ T A N ]
complaint. [Sec. 5, or petition. [1
A:
Rule 1] Regalado 770, 2010
1. The petition is directed against a tribunal,
Ed.]
board or officer exercising judicial or quasi-
It may be filed initially
judicial functions;
either in the MTC or Some special civil
2. Such tribunal, board or officer has acted
the RTC. actions can only be
without or in excess of jurisdiction or with
filed in the MTC (e.g.
grave abuse of discretion; and
forcible entry and
3. There is neither appeal nor any plain,
unlawful detainer)
speedy and adequate remedy in the
while there are some
ordinary course of law for the purpose of
which can NOT be
annulling or modifying the proceeding.
commenced in the
There must be capricious, arbitrary and
MTC (e.g. certiorari).
whimsical exercise of power for it to
prosper [Sec. 1 Rule 65; Aggabao v.

Page 34 of 128
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Comelec, G.R. No. 163756, January 26,
2005]
Q: When there is grave abuse of discretion,
but a mode of appeal is available, will
certiorari prosper?
A: No. A special civil action for certiorari is an
extraordinary remedy that is allowed only and
restrictively in truly exceptional cases.
Consistent with this, the remedy may be used
only when there is no more appeal, or any other
plain, speedy, and adequate remedy in the
ordinary course of law [Manalo v. Ateneo de
Naga University, G.R. No. 185058, November
9, 2015]. Where an appeal is available,
certiorari will not prosper, even if the ground is
grave abuse of discretion [Local Water Utilities
Administration Employees Association For
Progress v. Local Water Utilities
Administration, G.R. No. 206808-09,
September 7, 2016]
[NCDAIPU]
However, the rule admits of exceptions:
1. when it is necessary to prevent irreparable
damage and injury to a party;
2. where the trial judge capriciously and
whimsically exercised his judgment;
3. where there may be a danger of failure of
justice;
4. where an appeal would be slow,
inadequate, and insufficient;
5. where the issue is one purely of law;
6. where public interest is involved; and
7. in case of urgency
[Municipality of Cordova v. Pathfinder
Development Corporation, G.R. No. 205544,
June 29, 2016].
Q: What are the requisites of a valid
mandamus? [ C D U M N ]
A:
1. There must be a clear legal right to the act
demanded;
2. It must be the duty of the defendant to
perform the act because it is mandated by
law;
3. The defendant unlawfully neglects the
performance of the duty enjoined by law;
4. The act to be performed is ministerial, not
discretionary;
5. There is no appeal or other plain, speedy
and adequate remedy in the ordinary
course of law [Sec. 3, Rule 65]
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Q: What are the requisites of a valid
prohibition? [ T E A N ]
A:
1. The impugned act must be that of a
tribunal, corporation, board or person;
2. The respondent must be exercising judicial,
quasi-judicial functions or ministerial
functions;
3. Respondents acted without or in excess of
its jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction;
and
4. There must be no appeal or other plain,
speedy and adequate remedy [Sec. 2, Rule
65].
E. Quo Warranto
Q: Against whom may a quo warranto
petition be brought?
A: A quo warranto petition may be brought
against: [ U P A ]
1. A person who usurps, intrudes into, or
unlawfully holds or exercises a public
office, position, or franchise
Note: Sec. 2, Article XI of the Constitution
allows the institution of a quo warranto
action against an impeachable officer. After
all, a quo warranto petition is predicated on
grounds distinct from those of
impeachment. The former questions the
validity of a public officer’s appointment
while the latter indicts him for so-called
impeachable offenses without questioning
his title to the office he holds [Republic v.
Sereno, G.R. No. 237428 (2018)]
2. A public officer who does or suffers an
act, which, by the provision of law,
constitutes a ground for forfeiture of office;
or
3. An association which acts as a
corporation within the Philippines without
being legally incorporated or without lawful
authority so to act. [Sec. 1, Rule 66]
Q: What are the rules on jurisdiction over
quo warranto petitions?
A: The jurisdiction over courts in quo warranto
petitions is as follows:
UP LAW BOC PRE-WEEK
1. Original jurisdiction to issue the writ of quo
warranto is vested in the SC, CA, and RTC.
[Sec. 5(1), Art. VIII, Constitution; Secs. 9
and 21, B.P. 129]
2. Quo warranto actions against corporations
with regard to franchises and rights granted
to them, as well as the dissolution of
corporations now fall under the jurisdiction
of the RTC. [Sec. 5.2, RA No. 8799 in
relation to P.D. 902-A; Unilongo v. CA,
G.R. No. 123910 (1999)]
3. The usurpation of an office in a private
corporation falls under the jurisdiction of
the RTC under Sec. 5.2, R.A. 8799 in
relation to P.D. 902-A; Calleja v. Panday,
G.R. No. 168696 (2006)]
Q: May a quo warranto petition be brought
to the Supreme Court in all cases?
A: No. In cases where the Supreme Court and
the Regional Trial Court have concurrent
jurisdiction, the same will not be entertained by
the Supreme Court unless a justified showing
is made as to why the petition is filed therein
instead of the Regional Trial Court [see Piit vs.
De Lara, et al., 58 Phil. 765] Absent sufficient
reasons, the action will be left for determination
by the Regional Trial Court which is better
equipped to take testimony and resolve factual
questions involved therein [see Veraguth vs.
Isabela Sugar Co., 57 Phil. 266].
Q: A is preventing B from occupying the
public office, but there is no doubt that A
has the title to the office. A filed a case for
quo warranto. Decide.
A: Quo warranto is not the proper remedy.
Where, however, there is no dispute as to who
has the title to the public office but the adverse
party, without lawful ground, prevents the
rightful occupant from assuming the office,
mandamus is the remedy to oust the usurper
[Lota vs. CA, et al., L-14803, June 30, 1961].
F. Expropriation
Q: What are the requisites of a valid
exercise of eminent domain? [ P G J U D ]
A: The requisites are:
1. The property taken must be private
property;
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REMEDIAL LAW
2. There must be genuine necessity to take
the private property;
3. The taking must be for public use;
4. There must be payment of just
compensation; and
5. The taking must comply with due process
of law. [Manapat v. CA, G.R. No. 110478
(2007)]
Q: When does taking occur?
A: There is taking when the expropriator enters
private property not only for a momentary
period but for a more permanent duration for
the purpose of devoting the property to a public
use in such a manner as to oust the owner and
deprive him of all the beneficial enjoyment
thereof. [Republic v. Sarabia, G.R. No. 157847
(2005)] [ M O W E D ] republic v castellvi
Q: What are the two stages in every action
for expropriation? [ A J ]
A: The two stages in an expropriation suit are:
1. The stage dealing with the propriety of
expropriation. This stage involves the
determination of the authority of the plaintiff
to exercise the power of eminent domain
and the propriety of its exercise in the
context of the facts involved in the suit. It
ends with an order of dismissal or order of
condemnation declaring that the plaintiff
has a lawful right to take the property
sought to be condemned, for the public use
or purpose described in the complaint,
upon the payment of just compensation to
be determined as of the date of the filing of
the complaint.
2. The second stage, which deals with the
payment of just compensation. This stage
involves the determination by the Court of
"the just compensation for the property
sought to be taken” with the assistance of
not more than three (3) commissioners.
Q: Are the orders in both stages of
expropriation final?
A: Yes, they are. An order of dismissal in the
first stage would be a final one, since it finally
disposes of the action and leaves nothing more
to be done by the court on the merits. So, too,
would an order of condemnation be a final one,
for thereafter, as the ROC expressly states, in
the proceedings before the Trial Court, "no
objection to the exercise of the right of
UP LAW BOC PRE-WEEK
condemnation (or the propriety thereof) shall
be filed or heard.” [National Power Corporation
v. Posada, G.R. No. 191945 (2015)]
The order fixing the just compensation on the
basis of the evidence before, and findings of,
the commissioners would be final, too. It would
finally dispose of the second stage of the suit
and leave nothing more to be done by the Court
regarding the issue. [National Power
Corporation v. Posada, G.R. No. 191945
(2015)]
Q: Can a land that is already devoted to
public use but used by the State in its
patrimonial capacity be expropriated?
A: Yes. The mere fact of a parcel of land being
owned by the State or its instrumentalities and
is dedicated for public use does not
automatically mean that the land is of public
dominion. If it is considered patrimonial
property, then the land assumes the nature of
private property, and may be expropriated
[PNOC Alternative Fuels Corporation v
National Grid Corporation of the Philippines].
SMALL CLAIMS
Q: What is the purpose of small claims
cases?
A: The purpose of the small claims process is
to provide an inexpensive and expeditious
means to settle disputes over small amounts.
[1 Riano 646, 2016 Edition]
Parties are encouraged to file small claims
court actions to resolve their minor disputes as
opposed to resorting to self-help or forcible
means to seek their remedy. [Explanatory note
to A.M. 08-8-7-SC]
Q: What is the scope of the rule on small
claims cases?
A: This rule shall govern the procedure in
actions for payment of money where the value
of the claim does not exceed PHP 400,000 in
cases filed before the MeTC, and P300,000 in
cases filed before the MCTC, MTCS, and
MTCC, exclusive of interest and costs. [SC
Resolution, February 26, 2019]
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Note: The Plaintiff may join one or more
separate small claims against a defendant
provided that the amount still falls within the
jurisdictional amount of the rules. [Sec. 8]
Q: To what actions do the Rules on Small
Claims Cases apply to?
A: This Rule is applicable in all actions which
are purely civil in nature where the claim or
relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of money: [ O L E ]
1. For money owed under any of the
following:
a. Contract of Lease
b. Contract of Loan
c. Contract of Services
d. Contract of Sale; v. Contract of
Mortgage
2. For liquidated damages arising from
contracts
3. The enforcement of a barangay amicable
settlement or an arbitration award involving
a money claim covered by this Rule
pursuant to Sec. 417, LGC. [Sec. 5]
Q: How are small claims cases
commenced?
A: Small claims cases are commenced by filing
with the court an accomplished and verified ( V S C D )
statement of claim in duplicate. The statement
must state if he/she/it is engaged in the [ B N ]
business of lending, banking and similar
activities, and the number of small claims
cases filed within the calendar year regardless
of judicial station. [Sec 6]
The following must be attached to the
statement of claim: [ C P E ]
1. Certification of Non-forum Shopping,
Splitting a Single Cause of Action, and
Multiplicity of Suits,
2. Two (2) duly certified photocopies of the
actionable document/s subject of the claim,
and
3. Affidavits of witnesses and other evidence
to support the claim
No evidence shall be allowed during the
hearing which was not attached to or submitted
together with the Claim unless good cause is
shown for admission of additional evidence.
[Sec. 6]
UP LAW BOC PRE-WEEK REMEDIAL LAW

Q: What is the procedure for dismissal of 8. Motion to declare the defendant in default;
small claims cases? 9. Dilatory motions for postponement;
A: The procedure depends on whether the 10. Reply and Rejoinder;
case in fact falls under the Rules on Small 11. Third-party complaints; and
Claims Cases or not. 12. Interventions [Sec. 16]

When the case falls under the rules:

1. From the examination of the Statement of SPECIAL PROCEEDINGS
Claims and the evidence attached, the
court may dismiss the case outright on any
of the grounds for the dismissal of the case
and state if such dismissal is with or without A. Writ of Habeas Corpus
prejudice.
2. If, during the hearing, the court is able to Q: What is the coverage of habeas corpus?
determine that there exists a ground for A: Extends to all cases of illegal confinement
dismissal, the court may dismiss the case or detention by which any person is deprived of
even if the ground is not pleaded in the his liberty, or by which the rightful custody of
Response. any person is withheld from the person entitled
thereto. [Sec. 1, Rule 102]
Note: If a case is filed under the regular or
summary procedure, but actually falls under Q: What are the differences between
this Rule, the case shall be referred to the peremptory writs and preliminary citation?
Executive Judge for appropriate assignment. A:
[Sec. 11] PRELIMINARY PEREMPTORY
CITATION WRIT
When the case does not fall under the rules, if A written document
the case falls under summary or regular Requires the which unconditionally
procedure, the case shall not be dismissed. respondent to commands the
Instead, the case shall be: appear and show respondent to have
1. Re-docketed under the appropriate cause why the the body of the
procedure, and peremptory writ detained person
2. Returned to the court where it was should not be before the court at a
assigned, subject to payment of any granted time and place
deficiency in the applicable regular rate of therein specified
filing fees. [Sec. 11]
See comparative table below.
Q: What pleadings and motions are
prohibited in small claims cases? Q: What is the Rule on Writ of Habeas
A: The following pleadings, motions, or Corpus In Relation To Custody of Minors?
petitions shall not be allowed in small claims A: Rule applies to petitions for custody of
cases: [ D MJ BINDER PIT ] minors and writs of habeas corpus in relation
1. Motion to dismiss the complaint except on thereto. The Rules of Court applies
the ground of lack of jurisdiction; suppletorily. [Sec. 1, A.M. No. 03-04-04-SC]
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration In custody cases involving minors, the writ of
of a judgment, or for reopening of trial; habeas corpus is prosecuted for the purpose of
4. Petition for relief from judgment; determining the right of custody over a child.
5. Motion for extension of time to file
pleadings, affidavits, or any other paper; Q: Where is a petition for the issuance of a
6. Memoranda; Writ of Habeas Corpus In Relation To
7. Petition for certiorari, mandamus, or Custody of Minors filed?
prohibition against any interlocutory order A: A verified petition shall be filed with the
issued by the court; Family Court of the province or city where the

Page 38 of 128
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petitioner resides or where the minor may be
found, or with the CA or the SC.
If filed with the Family Court where the
petitioner resides, or where the minor may be
found, the writ is enforceable within the judicial
region where the Family Court belongs.
If filed with the CA or the SC, or with any of its
members, the writ shall be enforceable
anywhere in the Philippines. Upon issuance of
the writ by the SC or CA, it may be made
returnable to a Family Court or to any regular
court within the region where the petitioner
resides or where the minor may be found.
If the presiding judge of the Family Court is
absent, then the petition may be filed with a
regular court, provided that the regular court
shall refer the case to the Family Court as soon
as the presiding judge returns to duty. If there
are no Family Courts in the area, then the
petition may be filed with the regular courts
The writ is returnable to the Family Court, or to
any regular court within the judicial region
where the petitioner resides or where the minor
may be found, for hearing and decision on the
merits.
Upon return of the writ, the court shall decide
the issue on custody of minors. [Sec. 20]
Q: When is Rule on Writ of Habeas Corpus
In Relation to Custody of Minors granted?
A: The grant of the writ depends on the
[ R W B ] concurrence of the following requisites: (1) that
the petitioner has the right of custody over the
minor; (2) that the rightful custody over the
minor is being withheld from the petitioner by
the respondents; and (3) that it is to the best
interest of the minor concerned to be in the
custody of petitioner and not that of the
respondents [Masbata v. Relucio, G.R. No.
235498 (2018)]
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REMEDIAL LAW
B. Writ of Habeas Data
Q: What is a writ of habeas data?
A: The writ of habeas data 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, A.M. No. 08-1-16-SC]
See comparative table below.
C. Writ of Amparo
Q: What is a writ of amparo?
A: It is a remedy available to any person whose
right to life, liberty, and security has been
violated or is threatened with violation by a
public official or employee or a private
individual or a private individual or entity. The
writ covers extralegal killings and enforced
disappearances or threats thereof. [Sec. 1,
A.M. No. 07-9-12-SC]
Q: What are the differences between a Writ
of Amparo and a Search Warrant?
A: The production order under the Amparo
Rule should not be confused with a search
warrant for law enforcement under Article III,
Section 2 of the 1987 Constitution.
The Constitutional provision is a protection of
the people from the unreasonable intrusion of
the government, not a protection of the
government from the demand of the people
such as respondents.
Instead, the Amparo production order may be
likened to the production of documents or
things under Section 1, Rule 27 of the Rules of
Civil Procedure i.e. “Upon motion of any party
showing good cause therefor, the court in
which an action is pending may (a) order any
party to produce and permit the inspection and
copying or photographing, by or on behalf of
the moving party, of any designated
documents, papers, books of accounts, letters,
photographs, objects or tangible things, not
UP LAW BOC PRE-WEEK
privileged, which constitute or contain evidence
material to any matter involved in the action
and which are in his possession, custody or
control” [Secretary of National Defense v.
Manalo, G.R. No. 180906 (2008)]
Q: What are the interim reliefs available to
the petitioner?
A:
1. Temporary Protection Order
● Issued upon motion or motu proprio
● That the petitioner or the aggrieved party
and any member of the immediate family
be protected in a government agency or by
an accredited person or private institution
capable of keeping and securing their
safety. If the petitioner is an organization,
association or institution referred to in
Section 3(c) of this Rule, the protection
may be extended to the officers concerned
[Sec. 14(a)]
● Different from the inspection and
production order in that the temporary
protection order and the witness protection
order do not need a verification and may be
issued motu proprio or ex parte
2. Inspection Order
● Issued only upon verified motion and after
due hearing
● Directed to any person in possession or
control of a designated land or other
property, to permit entry for the purpose of
inspecting, measuring, surveying, or
photographing the property or any relevant
object or operation thereon.
● The order shall expire five (5) days after the
day of its issuance, unless extended for
justifiable reasons [Sec. 14(b)]
● Requires hearing, may be availed of both
the petitioner and the respondent
● If the court, justice or judge gravely abuses
his or her discretion in issuing the
inspection order, the aggrieved party is not
precluded from filing a petition for certiorari
with the SC
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REMEDIAL LAW
3. Production Order
● Issued only upon verified motion and after
due hearing
● Directed to any person in possession,
custody or control of any designated
documents, papers, books, accounts,
letters, photographs, objects or tangible
things, or objects in digitized or electronic
form which constitute or contain evidence
relevant to the petition or the return, to
produce and permit their inspection,
copying or photographing by or on behalf of
the movant.
● In case of opposition, the court, justice or
judge may conduct a hearing in chambers
to determine the merit of the opposition
[Sec. 14(c)] Opposition may be had on the
following grounds:
a. National security
b. Privileged nature of the information
4. Witness protection order
● Issued upon motion or motu proprio
● Order may refer the witnesses to
a. The Department of Justice for
admission to the Witness Protection,
Security and Benefit Program.
b. Other government agencies, or to
accredited persons or private
institutions capable of keeping and
securing their safety [Sec. 14(d)]
Q: What are the interim reliefs available to the
respondent?
A:
1. Inspection Order
2. Production Order [Sec. 15]
See comparative table below.
UP LAW BOC PRE-WEEK REMEDIAL LAW

Q: Distinguish writ of habeas corpus, writ of amparo, and writ of habeas data.
A:
HABEAS CORPUS AMPARO HABEAS DATA
Involves the right to
1. All cases of illegal privacy in life, liberty
confinement and Involves right to life, or security violated or
detention by which liberty and security threatened by an
any person is violated or threatened unlawful act or
deprived of his with violation by an omission of a public
liberty unlawful act or omission official or employee, or
2. Deprivation of of a public official or of a private individual or
Nature, scope,
rightful custody of employee or a private entity engaged in the
function
any person including individual or entity gathering, collecting or
minors from the storing of data or
person entitled Covers extralegal information regarding
[Sec. 1] killings and enforced the person, family,
disappearances or home and
Actual violation before threats thereof [Sec. 1] correspondence of the
writ issues. aggrieved party [Sec.
1]
May not be suspended
except in cases of Shall not diminish, Shall not diminish,
invasion or rebellion increase or modify increase or modify
Limitations
when public safety substantive rights [Sec. substantive rights [Sec.
requires it [Sec. 15, Art. 23] 23]
III, 1987 Const.]
Petition filed by the Any aggrieved party
aggrieved party or by any may file a petition.
qualified person or entity
in the following order: However, in cases of
1. Any member of the extralegal killings and
immediate family enforced
2. Any ascendant, disappearances, the
descendant or petition may be filed by
By a petition signed and
collateral relative of (also successive):
verified by the party for
the aggrieved within 1. Any member of the
whose relief it is
Who may file the 4th civil degree of immediate family of
intended, or by some
affinity or the aggrieved
person on his behalf
consanguinity 2. Any ascendant,
[Sec. 3]
3. Any concerned descendant or
citizen, organization, collateral relative of
association or the aggrieved party
institution within the fourth
civil degree of
Filing by the aggrieved consanguinity or
suspends the right of all affinity
others [Sec. 2] [Sec. 2]
1. SB, CA, SC, or any 1. At the option of
1. SC or any member justice of such courts petitioner, RTC
Where filed thereof, on any day 2. RTC of place where where:
and at any time the threat, act or a. Petitioner
omission was resides or

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2. CA or any member committed or any of b. Respondent

thereof in instances its elements occurred resides or
authorized by law [Sec. 3] c. That which has
3. RTC or a judge jurisdiction over
thereof, on any day the place
and at any time, where the data
enforceable only or information
within his judicial is gathered,
district [Sec. 2] collected or
4. MTC or first level stored
courts in the 2. SC, CA, or SB – If
absence of RTC public data files of
judges in a judicial government offices
region [Sec. 35, B.P. [Sec. 3]
129]
If SC/CA issued,
anywhere in
Philippines.

If granted by the RTC or

judge thereof, it is
Where Anywhere in Philippines Anywhere in
enforceable in any part
enforceable [Sec. 4] Philippines [Sec. 3]
of the judicial region
[Sec. 21, B.P. 129 which
modified the term judicial
district in Sec. 2, Rule
102 into judicial region]
where the judge sits
If issued by:
If issued by:
1. SC or any of its
1. SC or any of its
justices, returnable
justices, before
before such court or
such Court or any
any justice thereof, or
justice thereof, or
before the CA/SB or
CA/SB or any of its
any of their justices, or
justices, or the RTC
to any RTC of the
If issued by: of the place where
place where the
1. SC/CA, or a member the petitioner or
threat, act or omission
thereof, returnable respondent
was committed or any
before such court or resides/has
of its elements
Where any member thereof jurisdiction over the
occurred
returnable or an RTC place where the
2. CA/SB or any of their
2. RTC, or a judge data or information
justices, returnable
thereof, returnable is gathered, stored
before such court or
before himself or collected
any justice thereof, or
[Sec. 2] 2. CA/SB or any of its
to any RTC of the
justices, before
place where the
such court or any
threat, act, or
justice thereof, or
omission was
RTC (same with
committed or any of
scenario SC issued
its elements occurred
and then returned
3. RTC or any judge
in RTC)
thereof, returnable

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before such court or 3. RTC, returnable

judge before such court
[Sec. 3] or judge
[Sec. 4]
None for indigent
petitioner
Petitioner shall be
exempted from the
Upon the final Petition shall be
payment of the docket
disposition of such docketed and acted
and other lawful fees
proceedings the court or upon immediately,
Docket fees
judge shall make such without prejudice to
Court, justice or judge
order as to costs as the subsequent
shall docket the petition
case requires [Sec. 19] submission of proof of
and act upon it
indigency not later than
immediately [Sec. 4]
15 days from filing
[Sec. 5]
Verified and written
Signed and verified and petition shall contain
shall allege 1. Personal
Signed and verified 1. The personal circumstances of
either by the party for circumstances of the petitioner and
whose relief it is petitioner respondent
intended or by some 2. Name or appellation 2. Manner the right to
person on his behalf, and circumstances of privacy is violated
setting forth the respondent or threatened and
1. The person in whose 3. The right to life, its effects
behalf the liberty, and security 3. Actions and
application is made violated or threatened recourses taken by
Essential
is imprisoned or with violation the petitioner to
allegations/
restrained of his 4. The investigation secure the data or
Contents of
liberty conducted, if any, plus information
petition
2. Name of the person circumstances of 4. The location of the
detaining another or each files, registers, or
assumed appellation 5. The actions and databases, the
3. Place where he is recourses taken by government office,
imprisoned or the petitioner and the person in
restrained of his 6. Relief prayed for charge or control
liberty 5. The reliefs prayed
4. Cause of detention May include a general for
[Sec. 3] prayer for other just and 6. Such other relevant
equitable reliefs reliefs as are just
[Sec. 5] and equitable [Sec.
6]
Upon filing of the
Court or judge must, Upon the filing of the
petition, the court,
when a petition is petition, the court, justice,
justice, or judge shall
presented and it appears or judge shall immediately
immediately order the
that it ought to issue, order the issuance of the
issuance of the writ if
When proper grant the same and then: writ if on its face it ought to
on its face it ought to
1. the clerk of court issue:
issue:
(CoC) shall issue the 1. CoC shall issue the
1. CoC shall issue the
writ under the seal of writ under the seal of
writ under the seal
the court or the court or
of the court and

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2. in case of 2. In case of urgent cause it to be

emergency, the necessity, the justice served within 3
judge may issue the or the judge may days from issuance
writ under his own issue the writ under or
hand, and may his or her own hand, 2. In case of urgent
deputize any officer and may deputize any necessity, the
or person to serve it officer or person to justice or judge
serve it may issue the writ
Also proper to be issued [Sec. 6] under his or her
when the court or judge own hand, and may
has examined into the deputize any officer
cause of restraint of the or person to serve it
prisoner, and is satisfied [Sec. 7]
that he is unlawfully
imprisoned
[Sec. 5]
Writ may be served in
any province by the (a)
sheriff, (b) other proper
officer, or (c) person
The writ shall be served
deputed by the court or The writ shall be served
upon the respondent by
judge. upon the respondent by a
a judicial officer or by a
judicial officer or by a
person deputized by
Service is made by person deputized by the
the court, justice or
leaving the original with court, justice or judge who
judge who shall retain a
the person to whom it is shall retain a copy on
copy on which to make
directed and preserving which to make a return of
Service a return of service.
a copy on which to make service.
return of service.
In case the writ cannot
In case the writ cannot be
be served personally
If that person cannot be served personally on the
on the respondent, the
found, or has not the respondent, the rules on
rules on substituted
prisoner in his custody, substituted service shall
service shall apply
service shall be made on apply [Sec. 8]
[Sec. 9]
any other person having
or exercising such
custody
[Sec. 7]
A public official or
Respondent is a public employee or a private
May or may not be an official or employee or individual or entity
Respondent
officer [Sec. 6] private individual or entity engaged in gathering,
[Sec. 1] collecting or storing
data [Sec. 1]
The officer to whom the
writ is directed shall
convey the person so
imprisoned or restrained
How executed Respondent files the Respondent files the
before:
and returned return [Sec. 9] return [Sec. 10]
1. the judge allowing
the writ, or
2. in his absence or
disability, before

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some other judge of

the same court

on the day specified in

the writ, unless person
directed to be produced
is sick or infirm, and
cannot, without danger,
be brought therein.

Officer shall then make

the due return of the writ,
with the day and cause
of the caption and
restraint according to the
command thereof
[Sec. 8]
Within 5 working days
When to file On the day specified on Same as Amparo [Sec.
after service of the writ
return the writ [Sec. 8] 10]
[Sec. 9]
Within 5 working days 1. Lawful defenses
When the person to be
after service of the writ, such as national
produced is imprisoned
the respondent shall file a security, state
or restrained by an
verified written return secrets, privileged
officer, the person who
together with supporting communications,
makes the return shall
affidavits which shall, confidentiality of
state, and in other cases
contain the source of
the person in whose
1. Lawful defenses information of
custody the prisoner is
2. The steps or actions media etc.
found shall state in
taken to determine the 2. In case of
writing to the court or
fate or whereabouts of respondent in
judge before whom the
the aggrieved party charge, in
writ is returnable: [ T A P T ]
3. All relevant possession or in
1. Truth of
information in the control of the data
custody/power over
possession of the or information
the aggrieved party
respondent pertaining subject of the
Contents of 2. If he has custody or
to the threat, act or petition
return power, or under
omission against the a. A disclosure of
restraint, the
aggrieved party the data or
authority and the
4. If the respondent is a information
cause thereof, with a
public official or about the
copy of the writ,
employee, the return petitioner, the
order, execution or
shall further state acts nature of such
other process, if any
a. To verify identity data or
upon which the party
of aggrieved party information,
is held
b. To recover and and the
3. If the party is in his
preserve purpose for its
custody or power,
evidence collection
and is not produced,
c. To identify and b. The steps or
particularly the
collect witness actions taken
nature and gravity of
statements by the
the sickness or
d. To determine respondent to
infirmity [ N G S I ]
cause, manner, ensure the

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4. If he has had the location, and time security and

party in his custody of death or confidentiality
or power, and has disappearance of the data or
transferred such e. To identify and information
custody or restraint apprehend c. The currency
to another, persons involved and accuracy
particularly to whom, f. To bring of the data or
at what time, for suspected information
what cause, and by offenders before a held
what authority such competent court d. Other
transfer was made [Sec. 9] allegations
[Sec. 10] [ W T C A ] relevant to the
resolution of
the proceeding
[Sec. 10]
Return or statement
shall be signed and
sworn to by the person Respondent shall file a
Respondent shall file a
who makes it if the verified written return
Formalities of verified written return
prisoner is not produced, together with
return together with supporting
unless the return is supporting affidavits
affidavits [Sec. 9]
made and signed by a [Sec. 10]
sworn public officer in his
official capacity [Sec. 11]
1. CoC who refuses to
1. Contempt without
issue the writ after
1. Contempt without prejudice to other
allowance and
prejudice to other disciplinary actions
demand, or
disciplinary actions a. CoC who
2. A person to whom a
a. CoC who refuses refuses to issue
writ is directed, who
to issue the writ the writ after its
a. neglects/refuses
after its allowance, or
to obey or make
allowance, or b. A deputized
return of the
b. A deputized person who
same according
person who refuses to
to the command
refuses to serve serve the writ
thereof,
the writ [Sec. 7] [Sec. 8]
Penalties for b. or makes false
2. Contempt punishable 2. Contempt
refusing to return,
by imprisonment or a punishable by
issue or serve c. or upon demand
fine imprisonment or a
OR for faulty made by or on
a. A respondent who fine
return behalf of the
refuses to make a a. A respondent
prisoner, refuses
return, or who refuses to
to deliver to the
b. A respondent who make a return,
person
makes a false or
demanding,
return, or b. A respondent
within 6 hours a
c. Any person who who makes a
true copy of the
otherwise false return, or
warrant or order
disobeys or resist c. Any person
of commitment,
a lawful process who otherwise
or order of the disobeys or
shall forfeit to the party
court [Sec. 16] resist a lawful
aggrieved the sum of
process or
P1000, recoverable in a

Page 46 of 128
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proper action, and may order of the

also be punished for court [Sec. 11]
contempt [Sec. 16]
No, not even on highly
meritorious grounds.
Is period of
Yes, for justifiable
return Note: Motion for
reasons [Sec. 10]
extendable? extension of time to file a
return is a prohibited
pleading [Sec. 11]
Is a general
Not allowed [Sec. 9] Not allowed [Sec. 10]
denial allowed?
Court, judge, or justice
shall hear the motion
ex parte, granting the
petitioner such reliefs
Court or justice shall as the petition may
Effect of failure
proceed to hear the warrant
to file return
petition ex parte [Sec. 12]
Unless the court in its
discretion requires the
petitioner to submit
evidence [Sec. 14]
Summary. Summary.

However, the court, With possibility of

Summary.
justice, or judge may call preliminary conference
for a preliminary similar to Amparo [Sec.
The writ does not act
conference to simplify the 14]
upon the prisoner who
issues and look at the
Nature of seeks relief, but upon the
possibility of obtaining Hearing in chambers
Hearing person who holds him in
stipulations and may be conducted
what is alleged to be
admissions from the where respondent
unlawful authority
parties. invokes the defense of
[Caballes v. CA, G.R.
national security or
No. 163108 (2005)]
Same priority as petitions state secrets, or the
for Habeas corpus data is of privileged
[Sec. 13] character [Sec. 12]
As specified in the writ,
As specified in the writ,
not later than 10
Date and time As specified in the writ not later than 7 days from
working days from the
of hearing [Sec. 8] the issuance of the writ
date of issuance writ
[Sec. 6]
[Sec. 7]
1. Motion to dismiss
In custody of minors a 2. Motion for extension
motion to dismiss, of time to file
Prohibited except on the ground of opposition, affidavit, Same as Amparo [Sec.
pleadings lack of jurisdiction [Sec. position paper and 13]
6, Rule on Custody of other pleadings
Minors and WHC] 3. Dilatory motion for
postponement

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4. Motion for bill of

particulars
5. Counterclaims or
cross-claims
6. Third-party complaint
7. Reply
8. Motion to declare
respondent in default
9. Intervention
10. Memorandum
11. Motion for
reconsideration of
interlocutory orders or
interim relief orders
12. Petition for certiorari,
mandamus, or
prohibition
[Sec. 11]
Substantial evidence
a. if respondent is a
private individual or
Clear and convincing entity, ordinary Substantial evidence
Burden of
evidence [Dizon v. diligence required to prove the
proof/Standard
Eduardo, G.R. No. L- b. if public official or allegations in the
of diligence
59118 (1988)] employee, petition [Sec. 16]
extraordinary
diligence
[Sec. 17]
Yes. If warrant of Public official or employee
commitment is in cannot invoke the
Presumption of
pursuance with law, it presumption that official
official duty
serves as prima facie duty has been regularly
cause of restraint. performed [Sec. 17]
Upon filing of the petition
or at any time before final
judgment, the court,
justice or judge may grant
any of the following
reliefs:
Interim reliefs 1. temporary protection
order
2. inspection order
3. production order
4. witness protection
order
[Sec. 14]
Within 10 days from the Within 10 days from the
time the petition is time the petition is
Judgment
submitted for decision submitted for decision
[Sec. 18] [Sec. 16]
Within 48 hours from 5 working days from the 5 working days from
Appeal
notice of the judgment of date of notice of adverse the date of notice of

Page 48 of 128
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final order appealed judgment to the SC under adverse judgment to

[Sec. 39, B.P. 129] Rule 45 [Sec. 19] the SC under Rule 45
[Sec. 19]
Institution of
separate Not precluded
actions
Consolidated with a Consolidated with a
Consolidation criminal action filed criminal action filed
of actions subsequent to the petition subsequent to the
[Sec. 23] petition [Sec. 21]
No more separate petition
Effect of filing shall be filed. Reliefs Same as Amparo [Sec.
criminal action available by motion in the 21]
criminal case [Sec. 22]

D. Rules of Procedure for Q: What is a writ of kalikasan?

Environmental Cases
Q: What is the precautionary principle?
A: It states that when human activities may
lead to threats of serious and irreversible
damage to the environment that is scientifically
plausible but uncertain, actions shall be taken
to avoid or diminish that threat. [Sec. 4, Rule 1,
A.M. No. 09-6-8-SC]
Q: What is a strategic lawsuit against public
participation (SLAPP)?
A: This refers to an action whether civil,
criminal or administrative, brought against any
person, institution or any government agency
or local government unit or its officials and
employees, with the intent to harass, vex, exert
undue pressure or stifle any legal recourse that
such person, institution or government agency
has taken or may take in the enforcement of
environmental laws, protection of the
environment or assertion of environmental
rights. [Sec. 4, Rule 1, A.M. No. 09-6-8-SC]
A: The writ is a remedy available to a natural or
juridical person, entity authorized by law,
people’s organization, non-governmental
organization, or any public interest group
accredited by or registered with any
government agency, on behalf of persons
whose constitutional right to a balanced and
healthful ecology is violated, or threatened with
violation by an unlawful act or omission of a
public official or employee, or private individual
or entity, involving environmental damage of
such magnitude as to prejudice the life, health
or property of inhabitants in two or more cities
or provinces. [Sec. 1, Rule 7, A.M. No. 09-6-8-
SC]
Q: What is a writ of continuing mandamus?
A: It is a writ issued by a court in an
environmental case directing any agency or
instrumentality of the government or officer
thereof to perform an act or series of acts
decreed by final judgment which shall remain
effective until judgment is fully satisfied. [Sec.
4, Rule 1, A.M. No. 09-6-8-SC]

Q: How is a writ of kalikasan distinguished from a writ continuing mandamus?

A:
WRIT OF CONTINUING
WRIT OF KALIKASAN
MANDAMUS
[RULE 7]
[RULE 8]
Directed against
Available against an unlawful act or
1. the unlawful neglect in the
omission of a public official or employee, or
Subject performance of an act specifically
private individual or entity, involving
Matter enjoined by law in connection with
environmental damage of such magnitude
the enforcement/ violation of an
as to prejudice the life, health or property
environmental rule or

Page 49 of 128
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of inhabitants in two or more cities or 2. the unlawful exclusion of another

provinces [Sec. 1] from the use or enjoyment of such
right and in both instances, there
is no other plain, speedy and
adequate remedy in the ordinary
course of law.
[Sec. 1]
1. Natural and juridical persons
2. Entities authorized by law
Who May 3. POs, NGOs, PIG, on behalf of persons Person personally aggrieved by the
File whose right to a balanced and healthful unlawful act or omission [Sec. 1]
ecology is violated or threatened to be
violated [Sec. 1]
May be public or private individual or entity
Respondent Government or its officers [Sec. 1]
[Sec. 1]
Docket Fees Exempted [Sec. 4] Exempted [Sec. 3]
a. RTC exercising territorial
jurisdiction,
Venue SC or CA [Sec. 2] b. CA,
c. SC
[Sec. 3]
Discovery Ocular Inspection and Production or
None
Measures Inspection Order [Sec. 12]
Damages Not allowed [Sec. 17] Allowed [Sec. 1]

Q: How is jurisdiction over the person of the

CRIMINAL PROCEDURE
A. General Matters
1. Jurisdiction over Subject Matter
and Jurisdiction over Person of
the Accused Distinguished
Q: How is jurisdiction over the subject
matter acquired?
A: Conferred by law; cannot be conferred by
the parties Jurisdiction cannot be fixed by the
will of the parties; nor acquired through waiver,
or enlarged by the parties’ omission; nor
conferred by acquiescence of the court, or by
mere administrative policy of any trial court
[Cudia v. Court of Appeals, G.R. No. 110315
(1998)]
accused acquired?
A: Acquired through: [ V A W C ]
1. Arrest of the accused
2. Consent of the accused
3. Waiver of objections as when the accused
enters his plea
4. Voluntary submission of the accused to the
jurisdiction of the court.
Note: there is no voluntary appearance in case
of special appearance to challenge the
jurisdiction of the court [Garcia v.
Sandiganbayan, G.R. Nos. 170122 & 171381
(2009)]

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2. Requisites for Exercise of
Criminal Jurisdiction
Q: What are the requisites for a court to
exercise criminal jurisdiction? [ S T P ]
A:
1. Subject matter jurisdiction: the offense is
one it is authorized by law to take
cognizance of
2. Territorial jurisdiction: the offense or any
one of its essential ingredients has been
committed within its territorial jurisdiction
3. Jurisdiction over the person: the person
charged must have been brought before it
for trial, forcibly by arrest or upon his
voluntary submission to the court.
All three requisites must concur before a court
can acquire jurisdiction [Antiporda v.
Garchitorena, G.R. No. 133289 (1999), citing
Arula v. Espino, G.R. No. L-28949 (1969)].
3. Jurisdiction of criminal courts
Q: What cases fall within the exclusive
original jurisdiction of the
MTC/MeTC/MCTC? [ 6 S O N S ]
A: Except those cases falling within the
jurisdiction of higher courts, these courts shall
have exclusive original jurisdiction over:
1. Violations of city or municipal ordinances
committed within their territorial jurisdiction
[Sec. 32, B.P. 129, as amended]
2. Offenses punishable with imprisonment not
exceeding 6 years irrespective of the
amount of fine, and regardless of other
imposable or accessory penalties,
including civil liability irrespective of its
kind, nature, or value [Sec. 32, B.P. 129]
3. Offenses involving damage to property
through criminal negligence [Sec. 32, B.P.
129]
4. Summary procedure in certain cases a.
Violations of traffic laws, rules and
regulations b. Violations of the rental law c.
B.P. 22 cases d. Violation of municipal and
city ordinances e. All other criminal cases
where the penalty prescribed by law for the
offense charged is imprisonment not
exceeding 6 months, or a fine not
Page 51 of 128
REMEDIAL LAW
exceeding P1,000, or both f. Offenses
involving damage to property through
criminal negligence where the imposable
penalty does not exceed P10,000 [Sec.
1(b), 1991 Rules on Summary Procedure]
5. Special jurisdiction to decide on
applications for bail in the absence of all
RTC judges in a province or city [Sec. 35,
B.P. 129, as amended by R.A. 7691].
Q: What cases fall within the exclusive
original jurisdiction of RTCs?
A: Exclusive original jurisdiction in criminal
cases not within the exclusive jurisdiction of
any court, tribunal or body, EXCEPT those
under the exclusive and concurrent jurisdiction
of the Sandiganbayan [Sec. 20, B.P. 129]
Q: What cases are within the jurisdiction of
the Sandiganbayan?
A:
1. Violations of R.A. 3019
2. Violations of R.A. 1379
3. Violations of Book 2, Title VII, Section 2,
Chapter 2 of the RPC (Indirect Bribery,
Corruption of Public officials, etc.), where
one or more of the accused are officials
occupying the following positions in the
government, at the time of the commission
of the offense:
a. Officials of the executive branch
occupying the positions of regional
direction and higher, otherwise
classified as Grade “27” and higher of
R.A. 6758 (see enumeration in RA
10660)
b. Members of Congress and officials
thereof classified as “Grade 27” and up
under R.A. 6758 (see enumeration in
RA 10660)
4. Other offenses, simple or complex, with
other crimes committed by the
abovementioned public officials and
employees in relation to their office.
5. Criminal cases filed pursuant to and in
connection with EO 1, 2, 14, 14-A (1986)
UP LAW BOC PRE-WEEK REMEDIAL LAW

4. When Injunction May Be Issued Q: What is the effect of the institution of a

to Restrain Criminal criminal action on prescription period?
Prosecution A: The institution of a criminal action shall
interrupt the running of the prescription period
of the offense charged UNLESS otherwise
Q: What are the instances when a criminal
provided in special laws [Sec. 1, Rule 110]
prosecution may be enjoined?
A: [ IJ DQ MACAO PIMPS ]
Q: Does desistance by the offended party
1. To afford adequate protection to the
constitutional rights of the accused bar prosecution?
A: No. Desistance does not bar the People of
2. For the orderly administration of justice
the Philippines from prosecuting the criminal
3. To avoid oppression or multiplicity of suits
action, but it operates as a waiver of the right
4. Where there is a prejudicial question which
to pursue civil indemnity [People v. Amaca,
is sub judice
G.R. No. 110129 (1995)].
5. Where acts of the officer are without or in
excess of authority
Q: What is the effect of pardon by the
6. When the prosecution is under an invalid
offended party on the criminal action?
law, ordinance or regulation
A:
7. When double jeopardy is clearly apparent
General rule: A pardon by the offended party
8. When the court has no jurisdiction over the
offense does not extinguish criminal action but civil
liability with regard to the interest of the injured
9. When it is a case of persecution rather than
party is extinguished by his express waiver [Art.
prosecution
23, RPC]. If there is more than one accused,
10. Where the charges are manifestly false and
motivated by vengeance the pardon must be extended to all offenders.
11. Where there is no prima facie case and a
Exception: Seduction, abduction and acts of
motion to quash on that ground has been
lasciviousness shall not be prosecuted if the
denied
offender has been expressly pardoned by the
12. Where preliminary injunction has been
offended party or her parents, grandparents or
issued by the SC to prevent the threatened
unlawful arrest of petitioners [Brocka v. guardian [Art. 344, RPC] [Sec. 5, Rule 110]
Enrile, G.R. No. 69863-65 (1990)]
13. To prevent the use of the strong arm of the 2. Control of Prosecution
law in an oppressive and vindictive manner
[Hernandez v. Albano, G.R. No. L-19272 Q: Who prosecutes criminal actions?
(1967)] A:
General rule: All criminal actions commenced
by a complaint or information shall be
B. Prosecution of Offenses prosecuted under the direction and control of
the prosecutor.
1. Criminal Actions; How
Instituted Exception: A private prosecutor may be
authorized in writing by the Chief of the
Q: What offenses require preliminary Prosecution office or the Regional State
investigation? [ 4 2 1 ] Prosecutor to prosecute the case subject to the
A: Those where the penalty prescribed by law approval of the court [Sec. 5, Rule 110, as
is at least 4 years, 2 months and 1 day [Sec. 1, amended by A.M. No. 02-2-07-SC (2002)]
Rule 112, as amended by A.M. No. 05-8-26-
SC]

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3. Sufficiency of Complaint or
Information
Q: What is a complaint? [ S S ]
A: Sworn written statement charging a person
with an offense, subscribed by the offended
party, any peace officer or other public officer
charged with the enforcement of the law
violated [Sec. 3, Rule 110]
Q: What is an Information? [ A S F ]
A: Accusation in writing, charging a person with
an offense, subscribed by the prosecutor and
filed with the court [Sec. 4, Rule 110]
Q: What content is required for the
information to be valid?
A: A complaint or information is sufficient if it
states the: [ ADD OPA ]
1. Name and surname of the Accused; or any
appellation or nickname by which he is
known or had been known. When an
offense is committed by more than one
person, all of them shall be included in the
complaint or information [Sec. 6, Rule 110]
2. Designation of the offense given by the
statute
3. Acts or Omissions complained of as
constituting the offense
4. Name of the Offended party
5. Approximate Date of the commission of the
offense, and
6. Place where the offense was committed
Q: When is an information considered
sufficient?
A: Whether the crime is described in intelligible
terms with such particularity as to apprise the
accused with reasonable certainty of the
offense charged [Lazarte v. Sandiganbayan,
G.R. No. 180122 (2009)]
Q: How is the accused referred to in the
information when his name is unknown?
A: If the accused’s name cannot be
ascertained, he must be described under a
fictitious name with a statement that his true
name is unknown. If the true name of the
accused is thereafter disclosed by him or
appears in some other manner to the court,
Page 53 of 128
REMEDIAL LAW
such name shall be inserted in the complaint or
information and record. [Sec. 7, Rule 110]
Q: Is it necessary to state the exact date the
offense was committed in the information?
A:
General rule: It is not necessary to state the
precise date the offense was committed. The
offense may be alleged to have been
committed on a date as near as possible to the
actual date of the commission.
Exception: When it is an essential element of
the offense (e.g., abortion, bigamy) [Sec. 11,
Rule 110]
4. Designation of Offense
Q: How must the Offense be designated in
the Complaint or Information?
A: The designation of the offense given by the
statute must be stated in the complaint or
information with the averment of acts or
omissions constituting the offense and the
attendant qualifying and aggravating
circumstances. If there is no designation of the
offense, reference shall be made to the section
or subsection of the statute punishing it. [Sec.
8, Rule 110]
Q: Can the accused be convicted of a more
serious crime than the one in the title?
A:
General rule: Accused may be convicted of a
crime more serious than that named in the title
if such crime is covered by the facts alleged in
the body of the information and its commission
is established by evidence [Buhat v. CA, G.R.
No. 119601 (1996)]
Exception: Cannot be convicted under one act
when he is charged with the violation of another
if the change: [ T D S ]
1. Involves change in the theory of the trial
2. Requires a different defense
3. Surprises the accused in any way [US v.
Panlilio, G.R. No. L-9876 (1914)]
UP LAW BOC PRE-WEEK
5. Cause of the Accusation
Q: What is the effect of failure to allege
qualifying and aggravating circumstances?
A: They are not considered even if proven
during trial [Viray v. People, G.R. No. 205180
(2013)]
6. Duplicity of the Offense
Q: How many offenses may be charged in
an information?
A:
General rule: A complaint or information must
charge only one offense.
Exception: Multiple offenses may be charged
when the law prescribes a single punishment
for various offenses [Sec. 13, Rule 110]:
1. Complex crimes - E.g., Acts committed in
furtherance of rebellion are crimes in
themselves but absorbed in the single
crime of rebellion [Enrile v. Salazar, G.R.
No. 92163 (1990)]
2. Special complex crimes
3. Continuous crimes (Requisites:)
a. Plurality of acts performed separately
during a period of time
b. Unity of penal provisions violated
c. Unity of criminal intent [People v.
Ledesma, G.R. No. L-41522 (1976)]
4. Crimes susceptible of being committed in
various modes: The allegations in the
information would be regarded as a
description of only one offense and
information is not rendered defective
[Jurado v. Suy Yan, G.R. No. L-20714
(1971)]
5. Crimes of which another offense is an
ingredient
6. When a single act violates different statutes
[Loney v. People, G.R. No. 152644 (2006)]
Q: What remedy may the accused avail of in
case the information alleges more than 1
offense?
A: Accused must move for the quashal of the
information before arraignment. [Sec. 1 and 3,
Rule 117]
Page 54 of 128
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Q: What is the effect of failure to file a
motion to quash?
A: Accused is deemed to have waived the
objection and may be convicted of as many
offenses are charged and proved. [Sec. 3, Rule
120]
7. Amendment or Substitution of
Complaint or Information
Q: Can a substantial amendment be made
after the accused has entered his plea?
A:
General rule: Amendment as to substance at
this stage of the case is proscribed [People v.
Zulueta, G.R. No. L-4017 (1951)] since:
1. It violates the right to be informed of the
nature and cause of the accusation during
his plea [Buhat v. People, G.R. No. 119601
(1996)]
2. It violates the rule on double jeopardy.
Exception: Amendment may be allowed if it is
beneficial to the accused [People v. Janairo,
G.R. No. 129254 (2007)]
Q: What is the test to determine where an
amendment is formal or substantial?
A: Whether or not a defense under the original
information would be equally available after the
amendment and whether or not any evidence
the accused might have would be equally
applicable in one form as in the other [People
v. Degamo, G.R. No. 121211 (2003), citing
Teehankee v. Madayag, G.R. No. 103102
(1992)]
Q: What are the requisites for substitution
of information? [ B C D ]
A:
1. At any time before judgment [Sec. 14, Rule
110]
2. The accused cannot be convicted of the
offense charged or of any other offense
necessarily included therein [Sec. 19, Rule
119]
3. The accused would not be placed in double
jeopardy [Sec. 14, Rule 110]
UP LAW BOC
Q: What is the consequence when the
offense proved is less than the offense
charged?
A: The accused will be convicted of the offense
proved [Sec. 4, Rule 120]
Q: What is the consequence when the
offense proved is greater than the offense
charged?
A: The accused will be convicted of the offense
charged [Sec. 4, Rule 120]
Q: What is the consequence when the
offense proved is DIFFERENT and NOT
NECESSARILY INCLUDED NOR INCLUDES
the offense charged?
A: The case should be dismissed and a new
Information should be filed, charging the proper
offense. [Sec. 14, Rule 110]
8. Venue
Q: What is the general rule on venue in
criminal actions?
A: Venue is criminal cases is jurisdictional. In
all criminal prosecutions, the action must be
instituted and tried in the courts of the
municipality or territory where: a. The offense
was committed, or b. Any of its essential
ingredients occurred [Sec. 15(a), Rule 110].
9. Intervention of Offended Party
Q: When can the offended party intervene in
a criminal action?
A: An offended party has the right to intervene
in the prosecution of a crime, where the civil
action for recovery of civil liability is instituted in
the criminal action [Sec. 16, Rule 110]
C. Prosecution of Civil Action
1. Institution of Civil Action
Q: Is the civil action for the recovery of civil
liability arising from an offense instituted
with the criminal action?
A: Generally, yes, except when the offended [ W R I ]
party: waives the civil action, reserves the right
to institute it separately, or institutes the civil
Page 55 of 128
PRE-WEEK REMEDIAL LAW
action prior to the criminal action [Sec. 1, Rule
111]
Q: When may the civil action proceeding
independently?
A:
1. When the accused in a criminal
prosecution is acquitted on the ground that
his guilt has not been proved beyond
reasonable doubt, a civil action for
damages for the same act or omission may
be instituted [Art 29, NCC]; or
2. In cases involving violation of constitutional [ C D F P R Q ]
rights, defamation, fraud, physical injuries,
refusal or failure to render aid or protection
by the members of the police or the
prosecuting attorney, quasi-delict) [Sec. 3,
Rule 111; Art. 32, 33, 34, 35 and 2176,
NCC]
Q: What is the prohibition on double
recovery?
A: In no case may the offended party recover
damages TWICE for the same act or omission
charged in the criminal action. [Sec. 3, Rule
111]
Q: Must the judgment of conviction of the
court state the civil liability of the
convicted?
A: Yes, the judgment of conviction of the court
must state the civil liability or damages to be
recovered by the offended party from the
accused, if any, EXCEPT, when enforcement
of civil liability by a separate civil action has
been reserved or waived. [Sec. 2, Rule 120,
ROC]
2. Reservation of Right to File
Civil Action
Q: When shall reservation be made?
A: Before the prosecution starts to present its
evidence, and under circumstances affording
the offended party a reasonable opportunity to
make such reservation. [Sec. 1(2), Rule 111]
Note, however, that failure of the court to
adjudge as to civil liability amounts to the
reservation of the right to a separate civil
action.
UP LAW BOC PRE-WEEK
Q: What is the effect of reservation of right?
A: The prescriptive period of the civil action that
was reserved shall be tolled. [Sec. 2, Rule 111]
Q: When is the reservation to file separately
not allowed? [ 22 ST ]
A:
1. B.P. 22 cases [Sec. 1(b), Rule 111]
2. Cases cognizable by the Sandiganbayan
[Sec. 4, P.D. 1606, as amended by R.A.
10660]
3. Tax cases [Sec. 7(b)(1), RA 9282]
In such cases, only the civil liability arising from
the crime charged (cause of action arising from
the delict) is deemed instituted. [Sarmiento v.
CA, G.R. No. 122502 (2002)]]
Q: May a counterclaim, cross-claim, or
third-party complaint be filed in the criminal
case?
A: No, no counterclaim, cross-claim or third-
party complaint may be filed by the accused in
the criminal case, but any cause of action
which could have been the subject thereof may
be litigated in a separate civil action [Sec. 1,
Rule 111]
3. When Separate Civil Action is
Suspended
Q: When can the separate civil action be
suspended?
A: Generally, if the civil action is instituted
before the institution of the criminal action,
such pending civil action, in whatever stage it
may be found, shall be suspended until final
judgment of the criminal action has been
rendered. [Sec. 2, Rule 111]. This rule does not [ I P N ] arraignment and during the pendency of the
apply in cases of independent civil actions, in
cases where the civil action presents a
prejudicial question, and where the civil action
is not one intended to enforce the civil liability
arising from the offense.
Q: May the judge motu proprio suspend?
A: No, the rules preclude a motu proprio
suspension by the judge of the civil action; it
must be by petition of the defendant [Yap v.
Paras, G.R. No. 101236 (1992)]]
Page 56 of 128
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4. Consolidation of Civil With
Criminal Action
Q: When may consolidation of the civil with
the criminal action take place?
A: Before judgment on the merits is rendered
in the civil action, such may be consolidated
with the criminal action in the court trying the
criminal action, upon motion of the offended
party. The evidence already adduced in the
civil action will be automatically reproduced in
the criminal action. [Sec. 2, Rule 111]
Q: Is there motu proprio consolidation?
A: No, there can be no motu proprio
consolidation. It must be upon motion of the
offended party.
Q: What if the criminal action was filed
before the separate civil action?
A: After the criminal action has been
commenced, the separate civil action arising
therefrom cannot be instituted until final
judgment has been entered in the criminal
action. [Sec. 2, Rule 111]
5. Effect of Death of the Accused
or Convicted on the Civil Action
Q: What happens if the accused dies before
arraignment?
A: The criminal case shall be dismissed without
prejudice to any civil action that the offended
party may file against the estate of the
deceased [Sec. 4, Rule 111]
Q: What happens if the accused dies after
criminal action?
A: The civil liability is extinguished. But, an
independent civil action enforcing liabilities
under Art. 32, 33, 34, 35 and 2176 may be
continued against the estate or legal
representative of the accused, after proper
substitution. If the civil action has been
reserved and subsequently filed, the civil action
shall proceed after substitution of parties. [Sec.
4, Rule 111]
UP LAW BOC PRE-WEEK
Q: What happens if the accused dies during
appeal?
A: Civil and criminal liabilities are extinguished
[People v. Alison, G.R. No. L-30612 (1983)]. It
must be noted, however, that only civil liability
ex delicto is extinguished. A separate civil
action may be instituted based on other
sources of civil liability [People v. Culas, G.R.
No. 211166 (2017)]
Q: What happens if the accused dies after
judgment?
A: The civil liability is not extinguished. Claims
shall be filed against the estate of the accused
under Rule 86 of the ROC. [Sec. 5, Rule 86]
6. Prejudicial Question
Q: What is a prejudicial question?
A: One which arises in a case, where the
resolution of which is a logical antecedent of
the issue involved therein and the cognizance
of which pertains to another tribunal [People v.
Consing, G.R. No. 148193 (2003)] There is a
prejudicial question only when the matter that
has to be priorly decided by another authority
is one where the cognizance of which pertains
to that authority and should not, under the
circumstances, be passed upon by the court
trying the criminal case [Rojas v. People, G.R.
No. L-22237 (1974)]. It is a question based on
a fact distinct and separate from the crime but
so intimately connected with it that it
determines the guilt or innocence of the
accused [Ras v. Rasul, G.R. No. L-50411
(1980)].
Q: What are the elements of a prejudicial
question? [ I D ]
A:
1. The previously instituted civil action
involves an issue similar or intimately
related to the issue raised in the
subsequent criminal action;
2. The resolution of such issue determines
whether the criminal action may proceed.
[Sec. 7, Rule 111]
Page 57 of 128
REMEDIAL LAW
Q: What is the effect of the existence of a
prejudicial question?
A: Suspension of the criminal action [Sec. 6,
Rule 111]. It does not prescribe the dismissal
of the criminal action [Yap v. Paras, G.R. No.
101236, (1992)]
Q: Where is the petition for suspension of
criminal action on the ground of the
existence of a prejudicial question filed?
A: Filed in either:
1. Office of the prosecutor (in the PI stage);
2. Court conducting the PI; or
3. Court where criminal action has been filed
for trial, at any time before the prosecution
rests. [Sec. 6, Rule 111]
Q: May an administrative proceeding raise
a prejudicial question that would suspend a
criminal case?
A: Yes, in San Miguel Properties, Inc. v. Perez
[G.R. No. 166836 (2013)] the SC held that the
administrative case before the HLURB case
raises a prejudicial question that sufficed to
suspend the criminal proceedings since the
action before the HLURB was “civil in nature”
and could not be instituted elsewhere except in
the HLURB whose jurisdiction over the action
was exclusive and original.
7. Filing Fees in Civil Action
Deemed Instituted With the
Criminal Action
Q: What are the filing fees required
according to the damages sought?
A: Generally, for actual damages - no filing
fees required.
For moral, exemplary, nominal, temperate
damages:
1. If amount is specified in the complaint/
information - the corresponding filing fees
shall be paid by the offended party upon
the filing thereof in court;
2. If amount is not specified in the
complaint/information, the filing fees shall
constitute a first lien on the judgment
awarding such damages [Sec. 1, Rule
111].
UP LAW BOC PRE-WEEK
This rule shall not apply for violations for BP 22
and estafa cases. In the BP 22 cases, the
offended party shall pay in full the filing fees
based on the amount of the check involved,
which shall be considered as the actual
damages claimed. Where the complaint or
information also seeks to recover liquidated,
moral, nominal, temperate or exemplary
damages, the offended party shall pay
additional filing fees based on the amounts
alleged therein. If the amounts are not so
alleged but any of these damages are
subsequently awarded by the court, the filing
fees based on the amount awarded shall
constitute a first lien on the judgment. [Sec. 1,
Rule 111] In estafa, the offended party shall
pay in full the filing fees based on the amount
involved [See Sec. 20, Rule 141]
D. Preliminary Investigation
1. Nature
Q: What is preliminary investigation?
A: An inquiry or proceeding to determine Probable
Cause 3. Consenting to be Arraigned and entering a
whether there is sufficient ground to engender
a well-founded belief that a crime has been
committed and the respondent is probably
guilty thereof, and should be held for trial [Sec.
1, Rule 112, as amended by A.M. No. 05-8-26-
SC].
Q: Is preliminary investigation a trial?
A: No, it is merely inquisitorial, and it is often
the only means of discovering the persons who
may reasonably be charged with a crime, to
enable the prosecutor to prepare his complaint
or information. It is not a trial of the case on the
merits and does not place the persons against
whom it is taken in jeopardy [Paderanga v.
Drilon, G.R. No. 96080 (1991)]
Q: What is the nature of the right?
A: It is a substantive right. To deny the
accused’s claim to a preliminary investigation
would be to deprive him of the full measure of
his right to due process [Duterte v.
Sandiganbayan, G.R. No. 130191 (1998)]
Page 58 of 128
REMEDIAL LAW
Q: May the right be waived?
A: Yes, the right to PI is a personal right which
the accused may waive either expressly or by
implication but must always be unequivocal.
The waiver, whether express or implied, must
be in a clear and unequivocal manner
[Larranaga v. CA. G.R. No. 130644 (1998)]
Mere failure of a defendant and/or his counsel
to appear during PI cannot be construed as a
waiver [Larranaga v. CA, G.R. No. 130644
(1998)]
Q: What is the effect of a waiver of the right?
A: When the accused waives his right to PI, the
fiscal may forthwith file the corresponding
information with the proper court [People v.
Perez, G.R. No. L-15231 (1960)]
Q: When is the right deemed waived?
A:
1. Express Waiver or by silence [Pilapil v.
Sandiganbayan, G.R. No. 101978 (1993)];
2. Failure to Invoke it during arraignment
[People v. De Asis, G.R. No. 105581
(1993)]; and
plea of Not Guilty without invoking the right
to PI [People v. Bulosan, G.R. No. L-58404
(1988)]
Q: When is the right not deemed waived?
A:
1. Failure to appear before the prosecutor
during the clarificatory hearing or when
summoned, when the right was invoked at
the start of the proceeding [Larranaga v.
CA, G.R. No. 130644 (1998)]; or
2. When the accused filed an application for
bail and was arraigned over his objection
and the accused demanded that
preliminary investigation be conducted [Go
v. CA, G.R. No. 101837 (1992)]
Q: What are the purposes of preliminary
investigation? [ I E B ]
A:
1. To Inquire concerning the commission of a
crime and the connection of the accused
with it. This is so that the accused may be
informed of the nature and character of the
crime charged against him, and, if there is
UP LAW BOC PRE-WEEK REMEDIAL LAW

probable cause for believing him guilty, that authorized by Election Code), as
the State may take the necessary steps to law amended by
bring him to trial; [Sec. 2, Rule 112, Section 43, RA
2. To Preserve the evidence and keep the as amended by 9369]
witnesses within the control of the State; A.M. No. 05-8-26- 2. Ombudsman: over
and SC] cases public
3. To determine the Amount of bail, if the officers and
offense is bailable. [Callo-Claridad v. employees
Esteban, G.R. No. 191567 (2013)] [Section 15[1], RA
6770
2. Probable Cause (Ombudsman Act
of 1989)]
Q: What is probable cause? 3. Presidential
A: Probable cause pertains to facts and Commission on
circumstances sufficient to support a well- Good Governance
founded belief that a crime has been committed with assistance of
and the accused is probably guilty thereof. the OSG: over
[Shu v. Dee, G.R. No. 182573 (2014)] cases investigated
by it) [EO 14,
Q: What is the quantum of evidence? (1986)]
A: The quantum of evidence now required in PI
is such evidence sufficient to “engender a well- 3. Procedure For Preliminary
founded belief” as to the fact of the commission Investigation
of a crime and the respondent's probable guilt
thereof. A PI is not the occasion for the full and Q: How is preliminary investigation
exhaustive display of the parties’ evidence. initiated?
[Estrada v. Ombudsman, G.R. No. 212140 A: Filing of the complaint, which shall state the
(2015)] address of the respondent, shall be
accompanied by the affidavits of the
Q: Is hearsay evidence admissible? complainant and his witnesses, and other
A: Yes, hearsay evidence is admissible during supporting documents to establish probable
PI [De Lima v. Guerrero, G.R. No. 229781 cause. The affidavits shall be subscribed and
(2017), citing Estrada v. Ombudsman, G.R. No. sworn to before any prosecutor or government
212140 (2015)] official authorized to administer oath or if
absent or unavailable, before a notary public,
Q: Who may conduct preliminary each of whom must certify that he personally
investigation? examined the affiants and that he is satisfied
A: that they voluntarily executed and understood
AS PROVIDED their affidavits, and shall be in such number of
AS PROVIDED BY
BY THE RULES copies as there are respondents, plus 2 copies
LAW
OF COURT for the official file. [Sec. 3(a), Rule 112, as
1. Provincial/city 1. COMELEC: over amended by A.M. No. 05-8-26-SC]
prosecutors all election
and their offenses Q: What must the investigating officer do?
assistants punishable under A: Within 10 days after the filing of the
2. National and the Omnibus complaint, the investigating officer shall either: [ D S ]
regional state Election Code. Dismiss the complaint, if he finds no ground to
prosecutors [Sec. 2(6), Art. IX- continue the investigation; or Issue a subpoena
3. Other officers C, Constitution; to the respondent, attaching the complaint and
as may be Section 265, supporting affidavits and documents [Sec. 3(b),
BP881 (Omnibus

Page 59 of 128
UP LAW BOC PRE-WEEK
Rule 112, as amended by A.M. No. 05-8-26-
SC].
Q: May the respondent submit a counter
affidavit?
A: Yes, it must be made within ten (10) days
from receipt of subpoena with the complaint
and must comply with the same requirements
as a complaint. Respondent is not allowed to
file a motion to dismiss in lieu of counter-
affidavit [Sec. 3(c), Rule 112, as amended by
A.M. No. 05-8-26-SC]. If the respondent cannot
be subpoenaed, or if subpoenaed, does not
submit counter-affidavits within the ten (10) day
period, the investigating officer shall resolve
the complaint based on the evidence presented
by the complainant [Sec. 3(d), Rule 112, as
amended by A.M. No. 05-8-26-SC]. This
situation would have the effect of an ex-parte
investigation [Riano 210, 2016 Ed.].
Q: Is there a clarificatory hearing?
A: The investigating officer may set a hearing
if there are facts and issues to be clarified from
a party or a witness. The parties can be present
at the hearing but without the right to examine
or cross-examine. They may, however, submit
to the investigating officer questions which may
be asked to the party or witness concerned
[Sec. 3(e), Rule 112, as amended by A.M. No.
05-8-26-SC]. The hearing shall be held within
10 days from submission of the counter-
affidavits and other documents or from the
expiration of the period for their submission. It
shall be terminated within five (5) days [Sec.
3(e), Rule 112, as amended by A.M. No. 05-8-
26-SC].
4. Resolution of the Investigating
Prosecutor
Q: How much time does the investigating
officer have to determine whether there is
sufficient ground for trial?
A: Within ten (10) days after the investigation,
the investigating officer shall determine
whether or not there is sufficient ground to hold
the respondent for trial [Sec. 3(f), Rule 112, as
amended by A.M. No. 05-8-26-SC].
Page 60 of 128
REMEDIAL LAW
Q: What will happen if the prosecutor finds
or does not find probable cause?
A: If he finds probable cause to hold
respondent for trial, he shall prepare the
resolution and information and shall certify
under oath in the information that he, or as
shown by the record, an authorized officer has
personally examined the complainant and his
witnesses; there is reasonable ground to
believe that a crime has been committed and
the accused is probably guilty thereof; the
accused was informed of the complaint and of
the evidence against him; and accused was
given opportunity to submit Controverting
Evidence. If he finds no probable cause, he
shall recommend the dismissal of the complaint
[Sec. 4, Rule 112, as amended by A.M. No. 05-
8-26-SC]
5. Review
Q: May the resolution be reviewed?
A: Yes, within five (5) days from the
resolution, the investigating officer shall
forward the case to the provincial/city/chief
state prosecutor, or to the Ombudsman or his
deputy in cases cognizable by the
Sandiganbayan in the exercise of its original
jurisdiction. Within ten (10) days from receipt
of the resolution, the Prosecutor/Ombudsman
shall act on the resolution and shall
immediately inform the parties of such action.
Where the investigating prosecutor
recommends the dismissal of the complaint but
the prosecutor/Ombudsman or his deputy
disapproves his recommendation, the latter
may, by himself, file the information or direct
another assistant/state prosecutor to do so
without conducting a new PI. If upon petition by
a proper party under such rules as the
Department of Justice may prescribe or motu
proprio, the Secretary of Justice reverses or
modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file
the corresponding information without
conducting another preliminary investigation,
or to dismiss or move for dismissal of the
complaint or information with notice to the
parties. The same rule shall apply in
UP LAW BOC PRE-WEEK
preliminary investigations conducted by the
officers of the Office of the Ombudsman.
Q: What are the remedies to review the
resolution?
A:
1. Filing an appeal with the investigating
officer.
Note: The appeal does not prevent the
filing of the corresponding information in
court based on the finding of probable
cause in the appealed resolution, unless
the Secretary of Justice directs otherwise,
but the appellant and the prosecutor shall
see to it that, pending resolution of the
appeal, the proceedings in court are held in
abeyance [Section 9, DOJ Circular No. 70
(2000)]
2. Petition for review to the SOJ, who may
review the resolutions of his subordinates
in criminal cases despite the information
being filed in court [Community Rural Bank
of Guimba v. Talavera, A.M. No. RTJ-05-
1909 (2005); see also DOJ Circ. No. 70].
Note: The party filing a petition for review is
allowed to file a motion for the suspension
of the arraignment [Sec. 11(c), Rule 116]. If
the SOJ decision is adverse to the
appealing party, such decision is
appealable administratively before the
Office of the President and the decision of
the latter may be appealed before the CA
pursuant to Rule 43 [De Ocampo v. Sec. of
Justice, G.R. No. 147932 (2006)];
3. The resolution of the SOJ may also be
reviewed by the Court of Appeals through
a petition for certiorari under Rule 65 of the
Rules of Court, solely on the ground that
the SOJ committed grave abuse of
discretion amounting to lack of jurisdiction
[Argovan v. San Miguel Corporation, G.R.
No. 188767, (2013)];
4. In criminal cases, the ruling of the
Ombudsman shall be elevated to the
Supreme Court by way of Rule 65, solely
under the ground of grave abuse of
Page 61 of 128
REMEDIAL LAW
discretion [Villanueva v. Ople, G.R. No.
165125 (2005)].
Q: When may the Office of the President
entertain an appeal from the SOJ?
A: Under Memorandum Circular No. 58 (2003),
no appeals from or petitions for review of
decisions/orders/resolutions of the Secretary of
Justice on preliminary investigations shall be
entertained by the Office of the President,
except those involving offenses punishable by
reclusion perpetua to death [Angeles v. Gaite,
G.R. No. 176596 (2011)].
6. Warrant of Arrest
Q: What is preliminary examination?
A: The PI conducted by the judge, which is
properly called preliminary examination, is
for the determination of probable cause for the
issuance of a warrant of arrest [P/Supt. Cruz v.
Judge Areola, A.M. No. RTJ-01-1642 (2002)]
Q: When may the RTC/MTC issue a warrant
of arrest?
A: Within 10 days from the filing of the
complaint or information, the judge shall
personally evaluate the resolution of the
prosecutor and its supporting evidence. He
may immediately dismiss the case if the
evidence on record clearly fails to establish
probable cause. If he finds probable cause,
he shall issue a warrant of arrest or a
commitment order when the complaint or
information was filed pursuant to Sec. 6 of Rule
112, as amended by A.M. No. 05-8-26-SC. In
case of doubt on the existence of probable
cause, the judge may order the prosecutor to
present additional evidence within 5 days from
notice and the issue must be resolved by the
court within 30 days from the filing of the
complaint or information. [Sec. 5(a), Rule 112,
as amended by A.M. No. 05-8-26-SC]
Q: When will warrant of arrest not issue?
A: A warrant of arrest shall not issue if the
accused is already under detention pursuant to
a warrant issued by the municipal trial court or
if the complaint or information was filed
pursuant to Sec. 6, Rule 112 (When accused
lawfully arrested without warrant) or is for an
UP LAW BOC
offense penalized by fine only. The court shall
then proceed in the exercise of its original
jurisdiction [Sec. 5(c), Rule 112, as amended
by A.M. No. 05-8-26-SC]
7. Cases Not Covered
Q: When is preliminary investigation not
required?
A:
1. If the complaint is filed directly with the
prosecutor involving an offense
punishable by an imprisonment of less than
4 years, 2 months and 1 day, the
procedure outlined in Sec. 3(a), Rule 112,
as amended by A.M. No. 05-8-26-SC shall
be observed. The prosecutor shall act on
the complaint based on the affidavits and
other supporting documents submitted by
the complainant within ten (10) days from
its filing [Sec. 8(a), Rule 112, as amended
by A.M. No. 05-8-26-SC];
2. If the complaint or information is filed
with the MTC/MCTC for an offense
covered by Section 8(b), Rule 112 as
amended by A.M. No. 05-8-26-SC.
Q: What will the procedure be?
A: If within 10 days after the filing of the
complaint of information, the judge finds no
probable cause after personally evaluating the
evidence, or after personally examining in
writing and under oath the complainant and his
witnesses in the form of searching questions
and answers, he shall dismiss the same. He
may, however, require the submission of
additional evidence, within 10 days from notice,
to determine further the existence of probable
cause. If the judge still finds no probable cause
despite the additional evidence, he shall, within
10 days from its submission or expiration of
said period, dismiss the case. When he finds
probable cause, he shall issue a warrant of
arrest, or a commitment order if the accused
had already been arrested, and hold him for
trial. However, if the judge is satisfied that there
is no necessity for placing the accused under
custody, he may issue summons instead of a
warrant of arrest. [Sec. 8(b), Rule 112, as
amended by A.M. No. 05-8-26-SC]
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PRE-WEEK REMEDIAL LAW
8. Remedies of Accused in Case
of Absence of Preliminary
Investigation
Q: What is the effect of the denial of the
right?
A: The absence of a PI does not impair the
validity of an information or render it defective.
Neither does it affect the jurisdiction of the court
or constitute a ground for quashing the
information [Villaflor v. Vivar, G.R. No. 134744
(2001)]
Q: What are the remedies of the accused?
A: Call the attention of the court to the
deprivation of the required PI before entering
his plea [Larranaga v. CA. G.R. No. 130644
(1998)]. After the filing of the
complaint/information in court without a PI, the
accused may within 5 days from the time he
learns of its filing, ask for a PI with the same
right to adduce evidence in his defense as
provided in Rule 112 [Sec. 6, Rule 112, as
amended by A.M. No. 05-8-26-SC]. File a
certiorari, if refused and such refusal is tainted
with grave abuse of discretion [Riano 186,
2016 Ed.]. The trial court, instead of dismissing
the information, should hold in abeyance the
proceedings and order the public prosecutor to
conduct a PI [Villaflor v. Vivar, G.R. No. 134744
(2001)]
Q: May the denial be raised for the first time
on appeal?
A: No, the right cannot be raised for the first
time on appeal [Pilapil v. Sandiganbayan, G.R.
No. 101978 (1993)]
9. Restraining Preliminary
Investigation
Q: May preliminary investigation be
restrained?
A: Generally, power of the Fiscal to investigate
crimes committed within his jurisdiction will,
ordinarily, not be restrained. However, extreme
cases may exist where relief in equity may be
availed of to stop a purported enforcement of a
criminal law where it is necessary: [ J DQ MACA PIMPS ]
1. For the orderly administration of justice;
UP LAW BOC PRE-WEEK REMEDIAL LAW

2. To prevent the use of the strong arm of the Q: What is the remedy of a person arrested
law in an oppressive and vindictive without a warrant?
manner; A:
3. To avoid multiplicity of actions; After the filing of
Before the
4. Since there is a prejudicial question which the complaint but
complaint or
is sub judice; before
information is filed
5. When the acts of the officer are without or arraignment
in excess of authority; The accused may ask The accused may
6. Since double jeopardy is clearly apparent; for PI. ask for PI within 5
7. When the court has no jurisdiction over the days after he learns
offense; Requisites: of the filing of the
8. When the case of one of persecution rather 1. he must sign a complaint or
than prosecution; waiver of the information
9. When the charges are manifestly false and provisions of
motivated by the lust for vengeance; Article 125 of
10. When there is clearly no prima facie case RPC, in the
against the accused and a motion to quash presence of his
on that ground has been denied; counsel;
11. To afford adequate protection to 2. the investigation
constitutional rights [Hernandez v. Albano, must be
G.R. No. L-19272 (1967)]; terminated within
12. In proper cases, because the statute relied 15 days from its
upon is unconstitutional, or was “held inception
invalid” [Ladlad v. Velasco, G.R. No. [Sec. 6, Rule 112, as amended by A.M. No. 05-
172070-72 (2007)]. 8-26-SC]

10. Inquest Q: What is the procedure for inquest?

Q: What is inquest?
A: It is an informal and summary investigation
conducted by a public prosecutor in criminal
cases involving persons arrested and detained
without the benefit of a warrant of arrest issued
by the court for the purpose of determining
whether said persons should remain under
custody and correspondingly be charged in
court [Leviste v. Alameda, G.R. No. 182677
(2010), citing Sec. 1, DOJ Circ. No. 61 (1993)]
In the absence of an inquest prosecutor, the
offended party or peace officer may directly file
the complaint in court [Sec. 6, Rule 112, as
amended by A.M. No. 05-8-26-SC]
A: An inquest is considered commenced upon
receipt by the Inquest officer from the law
enforcement authorities of the
complaint/referral documents which should
include: Affidavit of arrest, investigation report,
statement of the complainant and witnesses, all
of which must be subscribed and sworn to
before him; Other supporting evidence
gathered by the police in the course of the
latter's investigation of the criminal incident
involving the arrested or detained person. [Sec.
3, DOJ Circ. No. 61 (1993)] The inquest
proceedings must be terminated within the
period prescribed under the provisions of Art.
125, RPC. [Sec. 3, DOJ Circ. No. 61 (1993)]

E. Arrest
Q: What is an arrest?
A: Arrest is the taking of a person into custody
in order that he may be bound to answer for the
commission of an offense [Sec. 1, Rule 113]

Page 63 of 128
UP LAW BOC PRE-WEEK
Q: How is arrest made?
A:
1. By actual restraint of a person to be
arrested; and
2. By his submission to the custody of the
person making the arrest [Sec. 2, 1st par.,
Rule 113]
Application of actual force, manual touching of
the body, physical restraint or a formal
declaration of arrest is not required. It is
enough that there be an intent on the part of
one of the parties to arrest the other and an
intent on the part of the other to submit, under
the belief that submission is necessary
[Sanchez v. Demetriou, G.R. No. 111771
(1993)]. No violence or unnecessary force shall
be used in making an arrest [Sec. 2, 2nd par.,
Rule 113]. An arrest may be made on any day
and at any time of the day or night [Sec. 6, Rule
113].
Q: Is a warrantless arrest allowed?
A: Generally, no peace officer or person has
the power or authority to arrest anyone without
a warrant except in those cases expressly
authorized by law [Umil v. Ramos, G.R. No.
81567 (1991)].
These are the exceptions: [ I H E ]
1. In flagrante delicto [Sec. 5(a), Rule 113];
2. Hot pursuit arrest [Sec. 5(b), Rule 113];
3. Arrest of escaped prisoner [Sec. 5(c), Rule
113]; and
Page 64 of 128
REMEDIAL LAW
4. Other lawful warrantless arrests
specifically:
a. If a person lawfully arrested escapes or
is rescued, any person may
immediately pursue or retake him
without a warrant at any time and in any
place within the Philippines [Sec. 13,
Rule 113];
b. For the purpose of surrendering the
accused, the bondsmen may arrest him
or, upon written authority endorsed on
a certified copy of the undertaking,
cause him to be arrested by a police
officer or any other person of suitable
age and discretion [Sec. 23, Rule 114];
c. An accused released on bail may be re-
arrested without the necessity of a
warrant if he attempts to depart from
the Philippines without permission of
the court where the case is pending
[Sec. 23, Rule 114]
Q: Does a warrantless arrest include
authority to search and seize from the
offender?
A: Yes, a legitimate warrantless arrest
necessarily includes the authority to validly
search and seize from the offender (1)
dangerous weapons, and (2) those that may be
used as proof of the commission of an offense
[People v. Montilla, G.R. No. 123872, (1998)]
UP LAW BOC PRE-WEEK REMEDIAL LAW

Q: What are the requisites for the various instances when a warrantless arrest is allowed?
A:
IN FLAGRANTE DELICTO HOT PURSUIT ESCAPED
PRISONER
A peace officer or a private A peace officer or a private A peace officer or a
person may, arrest when, in person may arrest when an private person may
his presence, the person to be offense has just been arrest when the
arrested: committed and the officer or person to be
1. Has committed private person has probable arrested is a
2. Is actually committing, or cause to believe, based on prisoner who has
3. Is attempting to commit personal knowledge of facts escaped from a
an offense [Sec. 5(a), that the person to be arrested penal
Rule 113] has committed it [Sec. 5(b), establishment or
Rule 113] place where he is
Definition
serving final
judgment or
temporarily
confined while his
case is pending; or
while being
transferred from
one confinement to
another [Sec. 5(c),
Rule 113]
1. The person to be arrested 1. An offense has just been
executes an Overt Act Committed. There must be
indicating that he has just a large measure of
committed, is actually immediacy between the
committing, or is time the offense was
attempting to commit a committed and the time of
crime, and the arrest. [People v. del
2. Such overt act is done in Rosario, G.R. No. 127755
the Presence or within the (1999); People v. Agojo ,
View of the Arresting G.R. No. 181318 (2009)];
Requisites
Officer, meaning the and
arresting officer sees the 2. The person making the
offense, even though at a arrest has probable cause
distance, or to believe, based on
3. He hears the Personal Knowledge of
disturbances created by facts and circumstances,
the offense and proceeds that the person to be
at once to the scene arrested has committed it.
[People v. Evaristo, G.R.
No. 93828 (1992)]

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Q: Does personal knowledge mean actual
presence while a crime was committed?
A: No, personal knowledge does not require
actual presence at the scene while a crime was
being committed; it is enough that evidence of
the recent commission of the crime is patent
and the police officer has probable cause to
believe based on personal knowledge of facts
or circumstances, that the person to be
arrested has recently committed the crime
[Pestilos v. Generoso, G.R. No. 182601
(2014)]
Q: Where will the person arrested be
brought after a warrantless arrest under the
in flagrante and hot pursuit exceptions?
A: The person arrested shall be delivered to
the nearest police station or jail and shall be
proceeded against in accordance with Sec. 7
of Rule 112 [Sec. 5, 2nd par., Rule 113]
Q: Is preliminary investigation necessary
before the filing of a criminal complaint
against the person arrested without a
warrant?
A: No, when a person is lawfully arrested
without a warrant involving an offense that
requires a PI, a complaint/information may be
filed without conducting the PI if the necessary
inquest is conducted.
1. Rules on Illegality of Arrest
Q: What is the effect of an illegal arrest?
A: The legality of the arrest affects only the
jurisdiction of the court over the person of the
accused [People v. Nuevas, G.R. No. 170233
(2007)]
Q: Is there a waiver to contest the legality of
an arrest?
A: Any objection involving the arrest or the
procedure in the court’s acquisition of
jurisdiction over the person of an accused must
be made before he enters his plea; otherwise,
the objection is deemed waived. Accordingly,
an application for or admission to bail shall not
bar the accused from challenging the validity of
his arrest or the legality of the warrant issued,
provided it was raised before he enters his
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plea. [Sec. 26, Rule 114] A waiver of the right
to question an illegal warrantless arrest does
not also mean a waiver of the inadmissibility of
evidence seized during an illegal warrantless
arrest [People v. Nuevas, G.R. No. 170233
(2007)]
Q: How is an illegal arrest cured?
A:
1. When the accused voluntarily submits to
the jurisdiction of the trial court [Dolera v.
People, G.R. No. 180693 (2009); People v.
Alunday, G.R. No. 181546 (2008)]; and
2. By the filing of an information in court and
the subsequent issuance by the judge of a
warrant of arrest [Sanchez v. Demetriou,
G.R. No. 111771 (1993)]
2. Warrant of Arrest
Q: What are the requisites of a valid warrant
of arrest?
A: The warrant must be issued upon probable
cause determined personally by the judge
after examination under oath or affirmation of
the complainant and the witnesses he may
produce; and particularly describe the person
to be arrested [Sec. 2, Art. III, Constitution]
Q: When is a warrant of arrest issued?
A: A judge issues a warrant of arrest upon the
filing of the information by the public prosecutor
and after personal evaluation by the judge of
the prosecutor’s resolution and supporting
evidence [Sec. 5(a), Rule 112, as amended by
A.M. No. 05-8-26-SC] The judge does not have
to personally examine the complainant and his
witnesses. It is sufficient for the fiscal to provide
supporting documents regarding the existence
of probable cause. If the judge finds probable
cause, he shall issue a warrant of arrest, or if
he finds no probable cause, he may disregard
the fiscal’s report and require the submission of
supporting affidavits of witnesses [People v.
Gray, G.R. No. 180109 (2010); AAA v.
Carbonell, G.R. No. 171465 (2007)]
Q: When is warrant of arrest not necessary?
A: A warrant of arrest shall not issue if the
accused is already under detention pursuant to
UP LAW BOC PRE-WEEK REMEDIAL LAW

a warrant issued by the municipal trial court in 2. Inform person to the offense; (2)
accordance with Sec. 5(b) of Rule 112; or if the be arrested of when he is
complaint or information was filed pursuant to the cause and immediately
Sec. 6 of Rule 112 or is for an offense the fact that a pursued after its
penalized by fine only [Sec. 5(c), Rule 112, as warrant has commission; (3)
amended by A.M. No. 05-8-26-SC] been issued for when he has
his arrest. This escaped, flees or
Q: What is issued if the accused has already need not be forcibly resists
been arrested? done when: (1) before the officer
A: If the accused had already been arrested, the person to be has the
the court may issue a commitment order. arrested flees; opportunity to so
(2) when he inform him; or (4)
Q: What is issued if the judge does not find forcibly resists when the giving
it necessary to place the accused under before the officer of such
custody? has opportunity information will
A: He may issue summons instead of a warrant to inform him; (3) imperil the
of arrest [Sec. 8(b), Rule 112, as amended by When the giving arrest. [Sec. 8,
A.M. No. 05-8-26-SC] of such Rule 113]
information will 2. Deliver accused
Q: What is probable cause? imperil the arrest to nearest police
A: Probable cause, in connection with the [Sec. 7, Rule station or jail
issuance of a warrant of arrest, assumes the 113] without
existence of facts and circumstances that 3. Deliver accused unnecessary
would lead a reasonably discreet and prudent to nearest police delay [Sec. 3,
man to believe that a crime has been station or jail Rule 113];
committed and that it was likely committed by without 3. Not use
the person sought to be arrested [People v. unnecessary restraint than is
Tan, G.R. No. 182310 (2009)] delay [Sec. 3, necessary for
Rule 113]; accused’s
3. Method Of Arrest 4. Not use detention [Sec.
restraint than is 2, 2nd par., Rule
Q: What are the duties of the arresting necessary for 113].
person? accused’s
A: detention [Sec.
By 2, 2nd par., Rule
By 113].
Private
By officer with Officer
Person
Warrant without Q: What are the rights of the arresting
(Citizen’s
Warrant officer? [ S Bio S ]
Arrest)
1. Execute 1. Inform the A:
warrant within person to be 1. To orally summon as many persons as he
10 days from arrested of his deems necessary to assist him in effecting
receipt. In case authority and the arrest [Sec. 10, Rule 113];
of failure, state cause of the 2. To break into building or enclosure when
the reasons in a arrest, except the person to be arrested is or is
report to judge when: (1) the reasonably believed to be in said building,
who issued person to be he has announced his authority and
warrant. [Sec. 4, arrested is purpose of entering therein; and he has
Rule 113] engaged in requested and been denied admittance.
commission of [Sec. 11, Rule 113];
[EIDN] [IDN]
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3. To break out from the building/enclosure
when necessary to liberate himself [Sec.
12, Rule 113];
4. To search the person arrested for
dangerous weapons or anything which
may have been used or constitute proof in
the commission of an offense without a
warrant [Sec. 13, Rule 126]
F. Bail
1. Nature
Q: What is bail?
A: Bail is the security given for the release of a
person in custody of the law, furnished by him
or a bondsman, to guarantee his appearance
before any court as required under the
conditions hereinafter specified [Sec. 1, Rule
114]
Q: Is custody required before Courts can
act on an application for bail?
A: Yes, Except (a) when bail is required to
guarantee the appearance of a material
witness [Sec. 14, Rule 119], or (b) when bail is
required to guarantee the appearance of a
prosecution witness in cases where there is
substitution of the information [Sec. 14, Rule
110]
Q: What are the forms of bail? [ C P C R ]
A: (a) Corporate surety; (b) Property bond; (c)
Cash deposit; (d) Recognizance
2. When a Matter of Right
Q: When is bail a matter of right?
A: (a) Before or after conviction, but pending
appeal, by the first-level courts; or (b) Before
conviction by RTC of an offense not
punishable by death, reclusion perpetua, or life
imprisonment [Sec. 4, Rule 114]
3. When a Matter of Discretion
Q: When is bail a matter of discretion?
A: Upon conviction by the RTC of an offense
not punishable by death, reclusion perpetua, or
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REMEDIAL LAW
life imprisonment, admission to bail is
discretionary [Sec. 5, Rule 114]
Q: Where should be application be made
when a notice of appeal is filed
A: The application may be filed with the RTC
despite the filing of a notice of appeal,
provided that it has not transmitted the original
record to the appellate court [Sec. 5, Rule 114]
4. Guidelines in Fixing Amount of
Bail
Q: What should be the amount of bail?
A: The amount should be high enough to
assure the presence of the accused when
required but no higher than is reasonably
calculated to fulfill this purpose. [Yap Jr. v. CA,
G.R. No. 141529 (2001)]
Q: What are some factors that may be
considered in determining the amount? [ FAN PC ]
A: (a) Financial ability of the accused; (b)
Nature and circumstances of the offense; (c)
Penalty for the offense charged; (d) Character
and reputation of the accused; (e) Age and
health of the accused [See Sec. 9, Rule 114]
5. Increase or Reduction of Bail
Q: Can bail be increased or reduced?
A: Yes. After the accused is admitted to bail,
the court may, upon good cause, increase or
decrease the amount [Sec. 20, Rule 114]
6. Forfeiture and Cancellation of
Bail
Q: When is bail considered forfeited?
A: When the presence of the accused out on
bail is required by court or Rules of Court and
he failed to appear
Q: When is bail considered cancelled?
A: (a) Application by bondsmen, or (b)
Automatic cancellation
UP LAW BOC PRE-WEEK REMEDIAL LAW

Q: How does bondsmen apply for Q: When is arraignment held?

cancellation of bail? A:
A: Upon application of the bondsmen with due GR: Within 30 days from the date the court
notice to the prosecutor, bail may be cancelled acquires jurisdiction over his person
upon: (a) Surrender of the accused; or (b) Proof
of his death [Sec. 22(1), Rule 114]. E: Unless a shorter period is provided by
special law or Supreme Court circular [Sec.
Q: When does automatic cancellation 1(g), Rule 116]
occur?
A: (a) Upon acquittal of the accused; (b) Upon Q: Is the presence of the offended party
dismissal of the case, or (c) Upon execution of required during arraignment?
judgment of conviction [Sec. 22, Rule 114] A: Yes, the private offended party shall be
required to appear in the arraignment for the
G. Arraignment and Plea purpose of: (a) Plea bargaining; (b)
Determination of civil liability, and (c) Other
matters requiring his presence
1. Nature
Q: What are some motions available to the
Q: What is Arraignment?
accused before arraignment and plea? [ B S Q Cap ]
A: It is the stage where issues are joined and
A:
without which the proceedings cannot advance
1. Motion for bill of particulars;
further or, if held, will otherwise be void [People
2. Motion to suspend arraignment;
v. Albert, G.R. No. 114001 (1995)]
3. Motion to quash the complaint or
information;
Q: What must the accused be informed of? [ R C P ]
4. Challenge the validity of the arrest or
A: (a) The reason for the indictment; (b) The
legality of the warrant or assail the
specific charges the accused is bound to face;
regularity or question the absence of PI of
(c) The corresponding penalty for the charges
the charge [Sec. 26, Rule 114]
Q: What is a Plea?
Q: Can the accused’s counsel enter plea for
A: Its importance is based on the constitutional
the accused?
right of the accused to be informed. It is at this
A: No, accused must personally appear during
stage that the accused, for the first time, is
arraignment and enter his plea
given the opportunity to know the precise
charge that confronts him [Kummer v. People,
G.R. No. 174461 (2013)] 3. When a plea of not guilty should
be entered
2. How Made
Q: When is an accused considered to have
Q: How is arraignment conducted? [ O F R A ] pleaded not guilty? [ P R C ]
A: The arraignment shall be made in open A: (a) When the accused so pleaded; (b) When
court by the judge or clerk by furnishing the he refuses to plead or makes a conditional plea
accused with a copy of the complaint or [Sec. 1(c), Rule 116]
information, reading the same in the language
or dialect known to him, and asking him Q: When is a plea of guilt conditional? [ E C A ]
whether he pleads guilty or not guilty. [Sec. A:
1(a), Rule 116] 1. When he pleads guilty but presents
exculpatory evidence [Sec. 1(d), Rule 116];
2. Where the plea of guilty was compelled by
violence or intimidation [People v.
Baetiong];

Page 69 of 128
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3. When the plea is indefinite or ambiguous
[People v. Strong]
Q: Should a conditional guilty plea be
considered as a plea of not guilty?
A: Yes. A plea entered by the accused subject
to the proviso that a certain penalty be imposed
upon him. It is equivalent to a plea of not guilty.
[People v. Madraga, G.R. No. 129299, (2000)]
4. When Accused May Enter a
Plea of Guilty to a Lesser
Offense
Q: What are the requisites during
arraignment? [ I C ]
A: (a) The lesser offense is necessarily
included in the offense charged; (b) The plea
must be with the consent of both the offended
party and the prosecutor [Sec. 2, Rule 116]
Q: What are the requisites after arraignment
but before trial?
A: After arraignment but before trial, the
accused may still be allowed to plead guilty to
said lesser offense after withdrawing his plea
of not guilty.
Q: May the accused still plead guilty to a
lesser offense after trial has begun and the
prosecution has rested its case?
A: Yes, a change of plea to a lesser offense
may be granted by the judge, with the approval
of the prosecutor and the offended party if the
prosecution does not have sufficient evidence
to establish the guilt of the accused for the
crime charged. [People v. Villarama, G.R. No.
99287 (1992)]
5. Searching Inquiry
Q: What is a “Searching Inquiry”?
A: A “searching inquiry” means more than
informing cursorily the accused that he faces a
jail term but so also, the exact length of
imprisonment under the law and the certainty
that he will serve time at the national
penitentiary or a penal colony [People v. Bello,
G.R. No. 130411-14 (1999)]
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6. Improvident Plea of Guilty to a
Capital Offense
Q: What is an improvident plea?
A: An improvident plea is one without proper
information as to all the circumstances
affecting it; based upon a mistaken assumption
or misleading information/advice [Black’s Law
Dictionary]
Q: What are instances of an improvident
plea?
A:
1. If the accused does not clearly the nature
of the offense charged;
2. If he is not advised as to the meaning and
effect of the technical language often used
in formal complaints and information in
qualifying the acts constituting the offense,
or
3. If he does not clearly understand the
consequences by way of a heavy and even
a capital penalty flowing from his admission
of his guilt of the crime [People v. De
Ocampo Gonzaga, G.R. No. L-48373
(1984)]
Q: What is the effect of an Improvident
Plea?
A:
GR: Plea of guilty should not be accepted
should not be held to be sufficient to sustain a
conviction
E: : If the accused appears guilty beyond
reasonable doubt from the evidence adduced
by the prosecution and defense
Q: When is an improvident plea allowed to
be withdrawn?
A: At any time before judgment of conviction
becomes final, the court may permit an
improvident plea of guilty to be withdrawn and
be substituted by a plea of not guilty [Sec. 5,
Rule 116]
UP LAW BOC PRE-WEEK
H. Motion to Quash
1. Nature
Q: What is a Motion to Quash (MTQ)?
A: Mode by which an accused assails the
validity of a criminal complaint or information
filed against him for insufficiency on its face in
point of law or defects which are apparent in
the face of the information
Q: When is a MTQ filed?
A:
GR: At any time before entering his plea
E: When the grounds relied upon are: [ C J E D ]
1. Failure to charge an offense;
2. Lack of jurisdiction over the offense
charged;
3. Extinction of the offense or penalty;
4. Accused has been previously convicted, or
in jeopardy of being convicted, or acquitted
of the offense charged (double jeopardy)
2. In General
Q: What are the grounds for a MTQ?
A: [ COP AF MEAD ] (exclusive)
1. Facts charged do not constitute an offense;
2. Court trying the case has no jurisdiction
over the offense charged;
3. Court trying the case has no jurisdiction
over the person of the accused;
4. officer who filed the information had no
authority to do so;
5. The information does not conform
substantially to the prescribed form; (e.g. if
there is no certification);
6. More than one offense is charged, except
when a single punishment for various
offenses is prescribed by law;
7. Criminal action or liability has been
extinguished;
8. Averments which, if true, would constitute
a legal excuse or justification;
9. Accused has been previously convicted or
acquitted of the offense charged, or the
case against him was dismissed or
otherwise terminated without his express
consent. S3R117
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3. Distinguish Motion to Quash
from Demurrer to Evidence
(DtE)
Q: When is a MTQ and a DtE filed?
A: A MTQ is filed before entering a plea, while
a DtE is filed after the prosecution has rested
its case
Q: When are the basis for the grant or denial
of a MTQ and a DtE?
A: For MTQ, it is the insufficiency of the
complaint or information on its face, and for
DtE, it is based upon the insufficiency of the
evidence adduced by the prosecution
Q: What is the effect the granting of a MTQ
and a DtE?
A: For MTQ, the Court may order the filing of a
new complaint or information, and for DtE, the
grant is deemed an acquittal and would
preclude the filing of another information or
appeal by the prosecution
Q: What is the effect the denial of a MTQ and
a DtE?
A: For MTQ, the accused proceeds with trial,
and for DtE, generally, the accused does not
lose his right to present evidence, except if
demurrer was filed without leave of court
4. Effects of Sustaining the Motion
to Quash
Q: What may be the effects of sustaining a
MTQ? [ F D A ]
A:
1. Filing another complaint or information;
2. Discharge of the accused;
3. Amendment of the complaint or information
Q: Can the Court order the filing of another
complaint or information?
A: Yes, except if MTQ was based on the
following: (a) Criminal action or liability has
been extinguished; or (b) Double jeopardy.
UP LAW BOC PRE-WEEK
Q: When shall the Court order the
amendment of the complaint or
information?
A:
1. If the MTQ is based on an alleged defect of
the complaint or information which can be
cured by amendment; or
2. If the MTQ is based on the ground that the
facts charged do not constitute an offense
Q: Does a grant of a MTQ preclude the
another prosecution for the same offense?
A: No, EXCEPT when the MTQ is based on the
ground that : (a) The criminal action or liability
has been extinguished; or (b) The accused has
been previously convicted, or in jeopardy of
being convicted, or acquitted of the offense
charged
5. Double Jeopardy
Q: What is the right against double
jeopardy?
A: The right against double jeopardy prohibits
the prosecution for a crime of which he has
been previously convicted or acquitted [Caes v.
IAC, G.R. No. 74989-90 (1989)]
Q: What are the requisites to successfully
invoke double jeopardy?
A:
1. A first jeopardy must have attached;
2. The first jeopardy must have been validly
terminated; and
3. The second jeopardy must be for the same
offense or the second offense necessarily
includes or is necessarily included in the
offense charged in the first information, or
is an attempt to commit the same or a
frustration thereof
Q: What are the requisites for first jeopardy
to attach? [ C A P I T ]
A:
1. Valid indictment
2. Before a competent court
3. Arraignment
1 One year after issuance of the order without the case having
been revived for offenses punishable: (a) by imprisonment not
exceeding 6 years, or (2) by fine of any amount, or (3) by both
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REMEDIAL LAW
4. A valid plea entered, and
5. The accused has been convicted or
acquitted, or the case dismissed or
otherwise validly terminated without his
express consent
6. Provisional Dismissal
Q: What is a provisional dismissal?
A: Provisional dismissal is dismissal without
prejudice to its being refiled or revived. Cases
are provisionally dismissed where there has
already been arraignment and the accused
consented to a provisional dismissal.
Q: What are the requisites for a provisional
dismissal?
A: (1) There must be express consent of the
accused; and (2) There must be notice to the
offended party
Q: Is the revival of a provisional dismissal
time-barred?
A: Yes [either 1 year1 or 2 years2]; Exception:
The State may revive beyond the periods
provided there is a justifiable necessity for the
delay.
I. Pre-Trial
1. General
Q: Is pre-trial mandatory?
A: Yes, it is mandatory to be conducted before
trial in all criminal cases cognizable by the
Sandiganbayan, RTC, MeTC, MTCC, MTC,
and MCTC. [Sec. 1, Rule 118]
Q: When should pre-trial be conducted?
A: Generally, the court shall order a pre-trial
conference after arraignment and within 30
days from the date the court acquires
jurisdiction over the person of the accused.
However, a shorter period may be provided by
special laws or SC circulars [Sec. 1, Rule 118]
2 Two years after issuance of the order without the case
having been revived for offenses punishable by imprisonment
of more than 6 years
UP LAW BOC PRE-WEEK
Q: What are considered in pre-trial? [ BMWS MO ]
A: Plea bargaining; Stipulation of facts;
Marking for identification of evidence; Waiver
of objections to admissibility of evidence;
Modification of the order of trial if accused
admits the charge but interposes a lawful
defense (reverse trial); Other matters that will
promote a fair and expeditious trial of the civil
and criminal aspects of the case [Sec. 1, Rule
118]
Q: Who must be present during pre-trial?
A: Counsel of accused and prosecutor. The
accused is not required to attend (unless
ordered by the court) and is merely required to
sign the written agreement arrived at during
pre-trial, if he agrees to the contents of such.
The complainant is also not required to appear
during pre-trial. [People v. Judge Tac-An, G.R.
No. 148000 (2003)]
Q: What is the penalty for non-appearance
during pre-trial?
A: The court may impose proper sanctions or
penalties, if counsel for the accused or the
prosecutor does not appear at the pre-trial
conference; and does not offer an acceptable
excuse for his lack of cooperation [Sec. 3, Rule
118]
Q: What is the role of the judge during pre-
trial?
A: The judge shall be the one to ask questions
on issues raised therein and all questions must
be directed to him to avoid hostilities between
the parties [Item B.7, A.M. No. 03-1-09-SC]
Q: What are requirements during pre-trial?
A: All proceedings during pre-trial shall be
recorded, transcripts prepared, and minutes
signed by the parties and their counsel.
2. Pre-Trial Agreement
Q: What are the requirements for a pre-trial
agreement? [ W S A ]
A: It must be reduced in writing, signed by the
accused and counsel, and with approval of
court if agreements cover matters in Sec. 1,
Rule 118. [Sec. 2, Rule 118]
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3. Plea Bargaining
Q: What is plea bargaining?
A: A process where the accused and the
prosecution work out a mutually satisfactory
disposition of the case. [Estipona Jr. v. Lobrigo,
G.R. No. 226679 (2017)] It usually involves the
defendant pleading guilty to a lesser offense or
to one or some of the counts of a multi-count
indictment in return for a lighter sentence than
that for the graver charge [People v. Mamarion,
G.R. No. 137554 (2003)]
Q: May offenses involving dangerous drugs
be the subject of plea bargaining?
A: YES, Sec. 23 of R.A. 9165 was declared
unconstitutional in Estipona Jr. v. Lobrigo [G.R.
No. 226679 (2017)].
Q: What should the court do when the
prosecution and offended party agree to the
plea offered by the accused? [ O E J ]
A: The Court shall: (1) Issue an order which
contains the plea bargaining arrived at; (2)
Proceed to receive evidence on the civil aspect
of the case; and (3) Render and promulgate
judgment of conviction, including the civil
liability or damages duly established by the
evidence. [Item B.5, A.M. No. 03-1-09-SC]
4. Stipulation of Facts
Q: Is a stipulation of facts allowed in
criminal cases?
A: Generally, it is allowed in criminal cases;
except when circumstances that qualify a crime
and increases its penalty to death cannot be
the subject of stipulation [People v. Sitao, G.R.
No. 146790 (2002)]
Q: What is the effect of a stipulation of
facts?
A: The stipulations become binding on the
parties who made them. They become judicial
admissions of the fact or facts stipulated
[Bayas v. Sandiganbayan, G.R. No. 143689-91
(2002)]
 UP LAW BOC PRE-WEEK
5. Marking for Identification of
Evidence
Q: What is the purpose of marking for
identification of evidence?
A: This must be done because no evidence
may be presented and offered during trial other
than those identified and marked during the
pre-trial, except when allowed by the court for
good cause shown.
6. Pre-Trial Order
Q: What are the rules for the issuance of the
pre-trial order?
A: It shall be issued by the trial judge within 10
days after the termination of the pre-trial. It
[ A F E A N S ] must contain: actions taken, facts stipulated,
evidence marked, admissions made, number
of witnesses to be presented; and schedule of
trial.
Q: What is the effect of the pre-trial order?
A: It binds the parties, limits the trial to those
matters not disposed of; and controls the
course of the action during trial, unless
modified by the court to prevent manifest
injustice. [Sec. 4, Rule 118]
7. Judicial Affidavit Rule
Q: What is the effect of the Judicial Affidavit
Rule on Pre-Trial proceedings?
A: The prosecution shall submit the judicial
affidavits of its witnesses not later than 5 days
before pre-trial, serving copies of the same
upon the accused. No further judicial affidavit,
documentary, or object evidence shall be
admitted at the trial. If the accused desires to
be heard on his defense after receipt of the
judicial affidavits of the prosecution, he shall
have the option to submit his judicial affidavit
as well as those of his witnesses to the court
within 10 days from receipt of such affidavits
and serve a copy of each on the public and
private prosecutor. These affidavits shall serve
as direct testimonies of the accused and his
witnesses when they appear before the court
to testify.
Page 74 of 128
REMEDIAL LAW
Q: When does the Judicial-Affidavit Rule
apply?
A: The Judicial Affidavit Rule shall apply to all
criminal actions: (1) where the maximum of the
imposable penalty does not exceed six years;
(2) where the accused agrees to the use of
judicial affidavits, irrespective of the penalty
involved; or (3) with respect to the civil aspect
of the actions, whatever the penalties involved
are. [Sec. 9, AM 12-8-8-SC]
J. Trial
1. Presence of the Accused
Q: Does the accused have the right to be
present?
A: Yes, in all criminal prosecutions, the
accused shall have the right to be present and
defend in person and by counsel at every stage
of the proceedings, from arraignment to
promulgation of the judgment [Sec. 1(c), Rule
115].
Q: May the right to be present be waived?
A: Generally, the accused may waive his
presence at the trial pursuant to the stipulations
set forth in his bail, [Sec. 1(c), Rule 115] except
when his presence is specifically ordered by
the court for purposes of identification [Sec.
1(c), Rule 115]. Notably, however, the
presence of the accused is no longer required
when he unqualifiedly admits in open court
after arraignment that he is the person named
as defendant in the case on trial [Carredo v.
People, G.R. No. 77542, March 19, 1990]
Q: In what instances is the accused deemed
to have waived his right to be present?
A: The absence of the accused without
justifiable cause at the trial of which he had
notice; and when an accused under custody
escapes until custody over him is regained
[Sec. 1(c), Rule 115]
Q: When is the presence of the accused
mandatory?
A: Arraignment [Sec. 1(b), Rule 116] and at the
promulgation of judgment, except when the
UP LAW BOC PRE-WEEK
conviction is for a light offense [Sec. 6, Rule
120]
2. Trial in Absentia
Q: What is the purpose of trial in absentia?
A: To speed up disposition of cases. [People v.
Agbulo, G.R. No. 73875 (1993)]
Q: What are the requisites for trial in
absentia?
A:
1. Accused has been arraigned;
2. He was duly notified of trial;
3. His failure to appear is unjustified
[Bernardo v. People, G.R. No. 166980
(2007)]
3. Right to Speedy Trial
Q: What is the right to speedy trial of the
accused and its purpose?
A: The rights of the accused to a speedy trial
and speedy disposition of the case are meant
to prevent the oppression of the accused by
holding criminal prosecution, suspended over
him for an indefinite time, and to prevent delays
in the administration of justice. [Corpuz v.
Sandiganbayan, G.R. No. 162214 (2004)]
Q: What factors are considered when
assessing the denial of the right to speedy
trial? [ D R A P ]
A: Duration of the delay, reason therefor,
assertion of the right or failure to assert it, and
prejudice caused by such delay [Corpuz v.
Sandiganbayan, G.R. No. 162214 (2004)]
Q: What is the remedy of the accused in
case of the denial of this right?
A: Motion to dismiss on the ground of denial of
his right to speedy trial. [Sec. 9, Rule 119] The
accused has the burden of proving the ground
of denial of right. If the motion is granted, the
dismissal shall be subject to the rules on
double jeopardy. [Sec. 9, Rule 119]
Q: May the right to speedy trial be waived?
A: Yes, failure of the accused to move for
dismissal prior to trial shall constitute a waiver
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REMEDIAL LAW
of the right to dismiss on the ground of denial
of his right to speedy trial [Sec. 9, Rule 119]
Q: Is the right to speedy trial denied if the
delay is attributable to the accused?
A: No. When the accused resorts to tactical
maneuvers, he waives his right to speedy trial.
[People v. Jardin, G.R. Nos. L-33037-42
(1983)]
4. Absence of Counsel De Parte
Q: What if the counsel de parte is absent?
A: The hearing shall proceed upon
appointment by the court of a counsel de
officio. [A.M No 15-06-10-SC, III No 13 (b)]
5. Guidelines on Continuous Trial
Q: To which cases are the Guidelines on
Continuous Trial applicable?
A:
1. Newly filed criminal cases, including those
governed by Special Laws and Rules, in
the First and Second Level Courts, the
Sandiganbayan and the Court of Tax
Appeals as of Sept 1, 2017;
2. Pending criminal cases with respect to the
remainder of the proceedings.
Notably, these guidelines are not applicable to
cases covered by the Rule on Summary
Procedure.
Q: What are prohibited motions?
A: The following motions are prohibited and
shall be denied outright before the scheduled
arraignment without need of comment and/or
opposition:
1. Motion for Judicial determination of
probable cause
2. Motion for Preliminary Investigation:
a. When filed beyond the 5-day period in
inquest proceedings under Sec. 6,
Rule 112
b. When required under Sec. 8, Rule 112,
or allowed in inquest proceedings and
the accused failed to participate in the
preliminary investigation despite due
notice
UP LAW BOC
3. Motion for Reinvestigation of the
prosecutor recommending the filing of
information once the information has been
filed before the court:
a. If the motion is filed without prior leave
of court
b. When preliminary investigation is not
required under Sec. 8, Rule 112, and
c. When the regular preliminary
investigation is required and has been
actually conducted and the grounds
relied upon in the motion are not
meritorious, such as issues of
credibility, admissibility of evidence,
innocence of the accused, or lack of
due process when the accused was
actually notified, among others
4. Motion to Quash Information when the
ground is not one of those stated in Sec. 3,
Rule 117
5. Motion for Bill of particulars that does not
conform to Sec. 9, Rule 116 (specify
details desired)
6. Motion to suspend Arraignment based on
grounds not stated under Sec. 11, Rule
116 (unsound mental condition, prejudicial question,
PfR of prosecutor resolution before DOJ or OOP)
7. Petition to Suspend criminal action on the
ground of Prejudicial question, when no
civil case has been filed, pursuant to Sec.
7, Rule 111
Q: What are meritorious motions?
A: Motions that allege plausible grounds
supported by relevant documents and/or
competent evidence, except those that are
already covered by the Revised Guidelines,
are meritorious motions, such as:
1. Motion to withdraw information, or to
downgrade the charge in the original
information, or to exclude an accused
originally charged therein, filed by the
prosecution as a result of a reinvestigation,
reconsideration, and review
2. Motion to Quash Warrant of Arrest
3. Motion to Quash Search Warrant or Motion
to Suppress Evidence
4. Motion to dismiss on the ground that
criminal case is a Strategic Lawsuit against
Public Participation under Rule 6 of the
Rules of Procedure for Environmental
Cases
PRE-WEEK REMEDIAL LAW
6. Evidence
Q: How is the oral offer of evidence made?
A: The offer of evidence, the comment/
objection thereto, and the court ruling shall be
made orally. If exhibits are attached to the
record - in making the offer, the counsel shall
cite the specific page number of the court
record where the exhibits being offered are
found. The court shall ensure that all exhibits
offered are submitted to it on the same day of
the offer. If the exhibits are not attached to the
record: the party making the offer must submit
the same during the offer of evidence in open
court.
Q: When is the oral offer of evidence made?
A: On the same day after the presentation of
his last witness, the opposing party is required
to immediately interpose his oral comment/
objection thereto. Thereafter, the court shall
defects &
make a ruling on the offer of evidence in open
court [A.M No 15-06-10-SC, III No 13 (c)]
Q: When may rebuttal and surrebuttal
evidence be presented?
A: If the court grants the motion to present
rebuttal evidence, the prosecution shall
immediately proceed with its presentation after
the defense has rested its case, and orally rest
its case in rebuttal after the presentation of its
last rebuttal witness. Thereafter, the accused
shall immediately present sur-rebuttal
evidence, if there is any, and orally rest the
case after the presentation of its last sur-
rebuttal witness. Thereafter, the court shall
submit the case for decision. [A.M No 15-06-
10-SC, III No 13 (e)]
7. Witnesses
Q: What is the effect of absence of witness?
A: Any period of delay resulting from the
absence or unavailability of an essential
witness shall be excluded in computing the
time within which trial must commence [Sec. 3,
Rule 119]
Page 76 of 128
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Q: What are the requisites for the exclusion
of the period of delay? [ A E ]
A:
1. Witness is Absent (whereabouts are
unknown or cannot be determined by due
diligence) or Unavailable (whereabouts are
known but presence for trial cannot be
obtained by due diligence);
2. Witness must be Essential (indispensable,
necessary, or important in the highest
degree) [Sec. 3(b), Rule 119]
Q: How can the appearance of a material
witness be secured?
A: Either party may file a motion for bail with
proof/under oath that a material witness will
testify when required. When the court is
satisfied, it may order the witness to post bail.
Q: What if the material witness does not
want to post bail?
A: If the material witness refuses to post bail,
the court shall commit him to prison until he
complies or is legally discharged after his
testimony has been taken. [Sec. 14, Rule 119]
Q: What is the ‘one day examination of
witness’ rule?
A: The court shall strictly adhere to the rule that
a witness has to be fully examined in one day.
[A.M No 15-06-10-SC, III No 13 (f)]
8. Accused as State Witness
Q: What are the requisites for the accused’s
testimony to qualify him as a state witness?
A: [ A N S M M ]
1. Absolute necessity for the testimony of the
accused whose discharge is requested;
2. There is no other direct evidence available
for the proper prosecution of the offense,
except the testimony of the said accused;
3. The testimony can be substantially
corroborated in its material points;
4. The accused does not appear to be the
most guilty; and
5. The accused has not, at any time, been
convicted of any offense involving moral
turpitude [Sec. 17, Rule 119]
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Q: What are the requisites for the discharge
of the accused to become a state witness?
A: [ T M P C ]
1. Two or more persons are jointly charged
with the commission of any offense.;
2. The prosecution files the motion before
resting its case;
3. The prosecution is required to present
evidence and the sworn statement of each
proposed state witness at a hearing in
support of the discharge; and
4. The court is satisfied that the conditions
required by the Rules are present. [Sec.
17, Rule 119]
Q: What is the effect of the discharge of the
accused as state witness?
A: Evidence adduced in support of the
discharge shall automatically form part of the
trial [Sec. 17, Rule 119]. Further, the discharge
operates as an acquittal and a bar to further
prosecution for the same offense [Sec. 18,
Rule 119], except when the accused fails or
refuses to testify against his co-accused.
9. Demurrer to Evidence
Q: How can the case be dismissed on the
ground of insufficiency of evidence?
A:
1. May be initiated by the court motu proprio,
after giving the prosecution the opportunity
to be heard; or
2. Upon demurrer to evidence filed by the
accused [Sec. 23, Rule 119]
Q: What is the test for the sufficiency of the
prosecution’s evidence?
A: The evidence of the prosecution must prove
beyond reasonable doubt the commission of
the crime; and the precise degree of
participation of the accused [Singian, Jr.v.
Sandiganbayan, G.R. Nos. 195011-19 (2013)]
Q: What is a demurrer to evidence?
A: A demurrer to evidence is a motion to
dismiss due to the insufficiency of the evidence
presented by the prosecution to overturn the
presumption of innocence in favor of the
accused.
UP LAW BOC PRE-WEEK
Q: What are the two ways of doing a
demurrer to evidence?
A: With leave of court and without leave of
court.
Q: How is demurrer to evidence with leave
of court done?
A:
1. Oral motion - After the prosecution has
rested its case, the court shall inquire from
the accused if he desires to move for leave
of court to file a demurrer to evidence or
proceed with the presentation of his
evidence. If the accused orally moves for
leave of court to file a demurrer to
evidence, the court shall orally resolve the
same [A.M No 15-06-10-SC, III No 13 (d)];
2. Written Motion - It must specifically state
its grounds. Filed within a non-extendible
period of 5 days after the prosecution rests
its case. Prosecution may then oppose
within a non-extendible period of 5 days
from receipt. [Sec. 23, Rule 119] If leave of
court is granted, the demurrer must be filed
within a non-extendible period of 10 days
from the date leave of court is granted, and
the corresponding comment shall be filed
within a non-extendible period of 10 days
from receipt of demurrer to evidence. [A.M
No 15-06-10-SC, III No 13 (d)]
Q: What is the effect of the denial of the
motion for leave to file demurrer?
A: The accused may choose between filing the
demurrer even without leave, or adducing
evidence for his defense [Sec. 23, Rule 119]
Q: How is demurrer to evidence without
leave of court done?
A: If despite the denial of the motion for leave,
the accused insists on filing the demurrer to
evidence, the previously scheduled dates for
the accused to present evidence shall be
cancelled. [A.M No 15-06-10-SC, III No 13 (d)]
Q: What is the effect of granting the
demurrer to evidence?
A: The court dismisses the action on the
ground of insufficiency of evidence [Sec. 23,
Page 78 of 128
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Rule 119] This amounts to acquittal. [People v.
Sandiganbayan, G.R. No. 164577 (2010)]
Q: Is the order granting the demurrer
appealable?
A: No, but it may be reviewed via certiorari
under Rule 65 [People v. Sandiganbayan,
G.R. No. 164577 (2010)]
Q: What is the effect of the denial of the
demurrer to evidence?
A: If filed with leave of court, the accused may
still present evidence in his defense. If not filed
with leave of court, the accused is deemed to
have waived his right to present evidence.
[Sec. 23, Rule 119]
Q: Is the order denying the demurrer
appealable or reviewable via certiorari?
A: No, it is not reviewable by appeal or by
certiorari before judgment [Sec. 23, Rule 119]
Q: What may the court do with a demurrer
to evidence if there are several accused?
A: If there are 2 or more accused and only one
presents a demurrer without leave of court, the
court may defer resolution until decision is
rendered on the other accused. If it can be
shown from the decision that the resolution on
the demurrer was rendered not only on the
basis of the prosecution’s evidence but also on
the evidence adduced by his co-accused, then
the demurrer is deemed resolved.
10. Promulgation
Q: What is the schedule of promulgation?
A: Date of promulgation shall be announced in
open court and included in the order submitting
the case for decision. It shall not be more than
90 calendar days from the date the case is
submitted for decision, except when the case
is covered by Special Rules and other laws
which provide for a shorter period [A.M No 15-
06-10-SC, III No 16(a)]
UP LAW BOC PRE-WEEK
K. Judgment
Q: What is a judgment?
A: Judgment is the adjudication by the court
that the accused is guilty or not guilty of the
offense charged and the imposition on him of
the proper penalty and civil liability, if any [Sec.
1, Rule 120].
Q: What are the requisites of a judgment?
A: [ Wo P S B ]
1. Written in the official language
Note: If given verbally, it is incomplete
[People v. Catolico, G.R. No. L-31260
(1972)]
2. Personally and directly prepared by the
judge
3. Signed by the judge
4. Contains clearly and distinctly a statement
of the facts and the law upon which
judgment is based [Sec. 1, Rule 120]
Q: What are the contents of a judgment of
conviction? [ Qc P P C ]
A: The judgment of conviction shall state:
1. The Legal Qualification of the offense
constituted by the acts committed by the
accused and the aggravating/mitigating
circumstances which attended its
commission
2. The Participation of the accused in the
offense, whether as principal, accomplice
or accessory after the fact
3. The Penalty imposed upon the accused
4. The Civil liability or Damages caused by his
wrongful act/omission to be recovered from
the accused by the offended party, if there
is any, unless the enforcement of the civil
liability by a separate civil action has been
reserved/waived. [Sec. 2, Rule 120]
Q: What is the variance doctrine?
A: When there is a variance between the
allegation and proof, the defendant can be
convicted only of the crime with which he is
charged. However, a minor variance between
the information and the evidence does not alter
the nature of the offense, nor does it determine
or qualify the crime or penalty, so that even if a
discrepancy exists, this cannot be pleaded as
Page 79 of 128
REMEDIAL LAW
a ground for acquittal [People v. Noque, G.R.
No. 175319 (2010)].
Exception: Accused shall be convicted if:
1. Offense proved which is included in the
offense charged (offense proved is lesser)
– some or all of the ingredients of the
offense charged constitutes the offense
proved
2. Offense charged which is included in the
offense proved (offense charged is lesser)
– essential ingredients of the offense
charged constitute or form part of the
ingredients of the offense proven. Where a
complex crime is charged and the evidence
fails to support the charge as to one of the
component offenses, the accused can be
convicted of the one which is proven
[People v. Llaguno, G.R. No. 91262 (1998)]
Q: What are the contents of a judgment of
acquittal?
A: The judgment of acquittal shall state
whether:
1. The evidence of the prosecution absolutely
failed to prove the guilt of the accused; or
2. Merely failed to prove his guilt beyond
reasonable doubt.
In either case, the judgment shall determine if
the act or omission complained from which the
civil liability might arise did not exist. [Sec. 2,
Rule 120]
Q: What is the difference between an
acquittal and dismissal?
A: Both have the effect of terminating a case.
An acquittal is a decision on the merits based
on a finding that the accused is not guilty. A
dismissal is not on the merits and does not rest
on any finding that the accused is guilty.
Q: What is the effect of acquittal on civil
liability?
A:
GR: Acquittal based on failure to prove guilt
beyond reasonable doubt does not extinguish
the civil liability arising from his acts. [Lontoc v.
MD Transit, G.R. No. L-48949 (1988)]
UP LAW BOC PRE-WEEK
Exception: Acquittal extinguishes civil liability
only when the judgment includes a declaration
that the facts from which the civil liability might
arise did not exist [Lontoc v. MD Transit, G.R.
No. L-48949 (1988)]
Thus:
1. The court may nonetheless hold the
accused civilly liable in favor of the
offended party, or it may deny the award of
civil damages expressly or impliedly by
being silent on the matter.
2. The losing party may appeal the ruling on
the civil liability, as in any other ordinary
appeal in his name and not in the name of
the People.
Q: What are the requisites for a
promulgation of judgment?
A:
1. There must be a court legally organized or
constituted; and there must be a judge, or
judges, legally appointed or elected and
actually acting, either de jure or de facto
[Luna v. Rodriguez, G.R. No. 12647
(1917)]
2. Said judgment must be duly signed and
promulgated during the incumbency of the
judge who penned it [Payumo v.
Sandiganbayan, G.R. No. 151911 (2011)]
3. The judgment is promulgated by reading it
in the presence of the accused and any
judge of the court in which it was rendered
[Sec. 6, Rule 120]
Q: Is the presence of the accused required
for promulgation?
A:
GR: Presence of the accused is mandatory in
the promulgation of judgment.
Exception: If the conviction is for a light
offense, the judgment may be pronounced in
the presence of his counsel or representative
[Sec. 6, Rule 120] If the judgment is for
conviction and the failure of the accused to
appear was without justifiable cause, he shall
lose the remedies available in the Rules
against the judgment and the court shall order
his arrest. However, within 15 days from
Page 80 of 128
REMEDIAL LAW
promulgation of judgment, he may surrender
and file a motion for leave of court to avail of
these remedies. He shall state the reasons for
his absence. If he proves his absence was for
a justifiable cause, he shall be allowed to avail
of the remedies within 15 days from notice
[Sec. 6, Rule 120; People v. De Grano, G.R.
No. 167710 (2009)]
Q: When does a judgment become final? [ L W A S P ]
A:
1. After the lapse of the period for perfecting
an appeal;
2. When the sentence has been
partially/totally satisfied or served;
3. The accused has waived in writing his right
to appeal;
4. When the accused has applied for
probation; and
5. Judgment also becomes final when
judgment is an acquittal [People v.
Sandiganbayan, G.R. No. 164577 (2010)]
Q: What are the remedies of the accused
against a judgment of conviction? [ R A M N R ]
A:
1. Modification of judgment [Sec. 7, Rule 120]
2. Reopening of proceedings [Sec. 24, Rule
119]
3. Motion for new trial [Sec. 1, Rule 121]
4. Motion for reconsideration [Sec. 1, Rule
120]
5. Appeal from judgment [Rule 122]
L. New Trial or Reconsideration
1. Formalities
Q: What form is required for the motion for
reconsideration or motion for new trial?
A: It must be in writing and must state the
grounds on which it is based. If based on newly
discovered evidence, the motion must be
supported by the affidavits of the witnesses by
whom such evidence is expected to be given,
or duly authenticated copies of documents
which are proposed to be introduced in
evidence.
UP LAW BOC PRE-WEEK REMEDIAL LAW

Q: Who must be notified of the motion? 2. could not have been discovered and
A: Notice of the motion shall be given to the produced at the trial even with the exercise
prosecutor [Sec. 4, Rule 120] of reasonable diligence,
3. is material, not merely cumulative/
Q: Does the Neypes Doctrine (fresh period corroborative/impeaching; and
rule) apply to criminal cases? 4. is of such weight that it would probably
A: Yes, the Neypes doctrine allows a fresh change the judgment if admitted. [Tadeja v.
period of 15 days within which to file the notice People, G.R. No. 145336 (2013)]
of appeal in the RTC, counted from receipt of
the order denying a motion for new trial or Q: Who must prove the second requisite?
reconsideration. [Yu v. Tatad, G.R. No. 170979 What is the test to prove?
(2011)] A: The accused [US v. Torrente, G.R. No. 1001
(1922)] The determinative test is the presence
2. Grounds For New Trial of due or reasonable diligence to locate the
thing to be used as evidence in the trial
Q: What are the grounds for new trial? [ E N ] [Briones v. People, G.R. No. 156009 (2009)]
A:
1. Errors of law or irregularities prejudicial to 3. Grounds for Reconsideration
the substantial rights of the accused have
been committed during the trial; Q: What are grounds for reconsideration?
2. New and material evidence has been A: Errors of law or fact in the judgment, which
discovered which the accused could not require no further proceedings [Sec. 3, Rule
with reasonable diligence have discovered 121]
and produced at the trial and which if
introduced and admitted would probably 4. Effect of Granting Motion for
change the judgment New Trial or Reconsideration
a. Errors of Law/Irregularities Q: What is the effect of granting the
During Trial motion?
A: It depends on the ground. [Sec. 6, Rule 121]
Q: Can errors of the defense counsel fall ACTION
under this ground? GROUND EFFECT OF THE
A: Generally, errors of the defense counsel in COURT
the conduct of the trial is neither an error of law All
nor an irregularity [Ceniza-Manantan v. proceedings
People, G.R. No. 156248 (2007)]; except when and
acquittal would, in all probability, have followed evidence
the introduction of certain testimony which was affected
not submitted at the trial under improper or Court will
shall be set
injudicious advice of incompetent counsel of allow
Errors of law aside and
the accused. [Aguilar v. Court of Appeals, G.R. introduction
/irregularities taken anew.
No. 114282 (1995)] of
committed If error or
additional
during trial irregularity
b. Newly Discovered Evidence evidence in
goes into the
the interest
jurisdiction,
Q: What are the requisites for this ground to of justice.
the entire
be invoked for a new trial? [ D M C R ] proceeding
A: is void and
1. The evidence was discovered after the must be set
trial, aside.

Page 81 of 128
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Evidence M. Appeal
already
adduced
1. General
shall stand
and the
The court Q: What is the effect of an appeal?
newly
will allow A: An appeal in a criminal proceeding throws
discovered
introduction the whole case open for review and it becomes
Newly and such
of other the duty of the appellate court to correct an
discovered other
such error as may be found in the appealed
evidence evidence
evidence in judgment [People v. Calayca, G.R. No. 121212
shall be
the interest (1999)]
taken and
of justice.
considered
Q: How is an appeal taken?
together with
A: Only in the manner and in accordance with
the evidence
the provisions of the law because the right to
already in
appeal is not a natural right nor a part of due
the record.
process but merely a statutory privilege
[Estarija v. People, G.R. No. 173990 (2009)]

Q: Where and how is an appeal taken? What are the periods to file an appeal?
A:
PERIOD TO FILE
DECIDED BY APPEAL TO MODE
APPEAL
RTC 1. Filing notice of Within 15 days from
MTC/MeTC/MCTC [Sec. 3(a), Rule appeal with (a) promulgation of
122] court that gave judgment, or (b)
Court of Appeals order appealed from notice of final
[Sec. 3(a), Rule from, and order appealed from
RTC (original jurisdiction) 122] 2. serving copy
thereof to The period to appeal
adverse party shall be suspended
Court of Appeals Petition for review from the time a MNT
RTC (appellate jurisdiction) [Sec. 3(b), Rule (Rule 42) or MR is filed until
122] notice of the order
RTC (where penalty imposed is Court of Appeals 1. Filing notice of overruling the
(a) reclusion perpetua, (b) life [Sec. 3(c), Rule appeal with motion has been
imprisonment, or (c) where a 122] court that gave served upon the
lesser penalty is imposed but order appealed accused or his
for offenses committed on the from, and counsel.
same occasion or which arose 2. serving copy
out of the same occurrence that thereof to [Sec. 6, Rule 122]
gave rise to the more serious adverse party
offense
RTC (where penalty imposed is Court of Appeals Automatic Review Automatic Review;
death penalty) [Sec. 3(d), Rule as provided in Sec. hence, no period to
122] 10, Rule 122 file appeal
Note: R.A. 9346 prohibits the
imposition of the death penalty

Page 82 of 128
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Supreme Court Petition for review Within 15 days from

Court of Appeals (where
penalty is not the Death
Penalty, reclusion perpetua, or
life imprisonment)
Court of Appeals (where
penalty is the Death Penalty,
reclusion perpetua, or life
imprisonment
[Sec. 3(e), Rule on Certiorari [Rule notice of judgment
122] 45] /final order/denial of
MNT or MR.
Note: Should only
raise questions of An extension of 30
law and should raise days may be
the errors of the CA granted, subject to
(not RTC’s) [Batistis the court’s discretion
v. People, G.R. No. [Sec. 2, Rule 45].
181571 (2009)]
Supreme Court Filing Notice of Automatic review
[Sec. 13(c), Rule Appeal with Court of
122] Appeals
All other appeals to Petition for review
the SC on certiorari [Rule
45

Q: Who may appeal? appealing shall be called the “appellant” and

A: Generally, any party may appeal from a
judgment or final order [Sec. 1, Rule 122].
However, a party may not appeal if the accused
will be placed in double jeopardy by such action
[Sec. 1, Rule 122]
Q: When may the accused lose the remedy
to appeal?
A: If the judgment is for conviction and the
accused fails to appear during promulgation
without justifiable cause, he will lose the
remedy to appeal [Sec. 6, Rule 120]
2. Procedure in the Lower Courts
(MeTC, MTC, MCTC, RTC)
Q: What is the procedure?
A: Generally, the procedure to be observed in
the MeTC/MTC/MCTC shall be the same as
that in the RTC, except where a particular
provision applies only to either of said courts;
or in criminal cases governed by the Revised
Rules on Summary Procedure [Sec. 1, Rule
123]
3. Procedure in the CA
Q: Does the case title remain the same?
A: YES. It must be noted, however, in all
criminal cases appealed to the CA, the party
the adverse party the “appellee” but the title of
the case shall remain as it was in the court of
origin [Sec. 1, Rule 124]
Q: What is the scope of the CA’s judgment?
A: The CA may: (1) Reverse/affirm/modify the [ R A M R I D ]
judgment; (2) Increase/reduce the penalty
imposed by the TC; (3) Remand the case to the
RTC for new trial or retrial; and (4) Dismiss the
case [Sec. 11, Rule 124]
Q: Does the CA have the power to receive
evidence?
A: The CA has power to try cases and conduct
hearings, receive evidence and perform any
and all acts necessary to resolve factual issues
where the court grants a new trial based only
on the ground of newly-discovered evidence
[Sec. 12, Rule 124]
Q: What is the period for the CA’s trials?
A: CA’s trials and hearings must be continuous
and completed within 3 months, unless Chief
Justice extends. [Sec. 9, BP 129 as amended
by RA 7902]
Q: Are the rules on appeal in civil procedure
applicable?
A: Provisions of Rules 42, 44-46 and 48-56
relating to procedure in the CA and the SC in

Page 83 of 128
UP LAW BOC PRE-WEEK
original and appealed civil cases, shall be
applied to criminal cases insofar as they are
applicable and not inconsistent with the
provision of this Rule [Sec. 18, Rule 124]
a. Motion for New Trial During The
Pendency of Appeal
Q: May the appellant file MNT on the ground
of newly discovered evidence when
resolution of an appeal is pending?
A: Yes, the appellant may file any time after the
appeal from the lower court has been
perfected; but before the CA judgment
convicting him becomes final.
b. Prompt Disposition of Appeals
Q: What is the rule on prompt disposition of
appeals for appellants under detention?
A: Appeals of accused who are under
detention shall be given precedence in their
disposition over other appeals. CA shall hear
and decide the appeal at the earliest
practicable time with due regard to the rights of
the parties. The accused need not be present
in court during the hearing of the appeal [Sec.
9, Rule 124]
c. Briefs
Q: What are the requirements for the
appellant’s brief?
A: Within 30 days from receipt by the appellant
or his counsel of the notice from the clerk of
court of the CA that the evidence, oral and
documentary, is already attached to the record,
the appellant shall file 7 copies of his brief with
the clerk of court which shall be accompanied
by proof of service of 2 copies thereof upon the
appellee [Sec. 3, Rule 124]
Q: What are the requirements for the
appellee’s brief?
A: Within 30 days from receipt of the brief of
the appellant, the appellee shall file 7 copies of
the brief of the appellee with the clerk of court
which shall be accompanied by proof of service
of 2 copies thereof upon the appellant [Sec. 4,
Rule 124]
Page 84 of 128
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Q: May the appellee’s brief be responded to
by the appellant?
A: Yes, within 20 days from receipt of the brief
of the appellee, the appellant may file a reply
brief traversing matters raised in the former but
not covered in the brief of the appellant [Sec. 4,
Rule 124] With the use of the word “may”, filing
a reply is optional.
Q: May the time for filing briefs be
extended?
A: Generally, extension of time for the filing of
briefs is not allowed. However, extension may
be granted for good and sufficient cause and
only if the motion for extension is filed before
the expiration of the time sought to be extended
[Sec. 5, Rule 124]. The court may grant as
many extensions as may be asked [Gregorio v.
CA, G.R. No. L-43511 (1976)]
Q: What happens if the appellant fails to file
his brief within the prescribed time?
A: The CA may, upon motion of the appellee or
motu proprio and with notice to the appellant in
either case, dismiss the appeal if the appellant
fails to file his brief with the time prescribed,
except where the appellant is represented by a
counsel de oficio [Sec. 8, Rule 124]
Q: Is notice to the appellant necessary
before the appeal can be dismissed for
failure to file brief?
A: Generally, the appellant must be given
notice to give him opportunity to reason out
why his appeal should not be dismissed [Baradi
v. People, G.R. No. L-2658 (1948)]. However,
dismissal is proper despite lack of notice:
1. If appellant has filed a MFR or motion to set
aside the order dismissing the appeal, in
which he stated the reason why he failed to
file his brief on time and the appellate court
denied the motion after considering reason
[Baradi v. People, G.R. No. L-2658 (1948)];
and
2. If the appeal was dismissed without notice
but appellant took no steps to have the
appeal reinstated. Such action amounts to
abandonment [Salvador v. Reyes, G.R. No.
L-2606 (1949)].
UP LAW BOC PRE-WEEK
Q: What happens to the appeal if the
appellant escapes, jumps bail, or flees?
A: The CA may, upon motion of the appellee or
motu proprio, dismiss the appeal if the
appellant escapes from prison/confinement,
jumps bail or flees to a foreign country during
the pendency of the appeal [Sec. 8, Rule 124]
If the accused flees after the case has been
submitted for decision, he is deemed to have
waived his right to appeal [People v. Ang Gioc,
G.R. No. L-48547 (1941)].
However, the appeal will not be dismissed in
the following instances:
1. In one exceptional case, the appellant took
advantage of a mass jailbreak but was
recaptured two hours after, the SC ruled
that these circumstances were not
sufficient to justify dismissal of the appeal
which would be able to show a clear
miscarriage of justice in the appellant’s
conviction [People v. Valencia, G.R. No. L-
1369 (1949)]
2. In case of automatic review [People v.
Cornelio, G.R. No. L-1289 (1971)]
d. Procedure After CA’s Judgment
Q: May a CA decision be reconsidered?
A: MFR may be filed within 15 days from notice
of the CA judgment or final order, with copies
served on the adverse party, setting forth the
grounds in support thereof [Sec. 16, Rule 124]
Note: This is not available to the State in case
the CA reverses the conviction of the accused
since double jeopardy shall have attached.
[Villareal v. Aliga, G.R. No. 166995 (2014)]
Q: When is certification or appeal of cases
to the SC necessary?
A: Whenever the CA finds that the penalty of
death, reclusion perpetua, or life imprisonment
should be imposed in a case, the court, after
discussion of the evidence and the law
involved, shall render judgment imposing the
penalty of death, reclusion perpetua, or life
imprisonment as the circumstances warrant.
However, it shall refrain from entering the
judgment and forthwith certify the case and
Page 85 of 128
REMEDIAL LAW
elevate the entire record thereof to the
Supreme Court for review [Sec. 13, Rule 124]
Q: What must be done when the CA’s entry
of judgment is issued?
A: A certified true copy of the judgment shall be
attached to the original record. These shall be
remanded to the clerk of the court from which
the appeal was taken [Sec. 17, Rule 124]
4. Procedure in the SC
Q: What is the procedure n the SC?
A: Generally, the procedure in the SC in
original and in appealed cases shall be the
same as in the CA, except when the
Constitution or law otherwise provides. [Sec. 1,
Rule 125]
Q: What may the SC do on review?
A: In a criminal case, an appeal to the SC
throws open the whole case for review and it
becomes its duty to correct such errors as may
be found in the judgment appealed from,
whether or not they were assigned as errors
[People v. Olfindo, G.R. No. L-22679 (1924)] It
may examine the judgment as to the
qualification of the crime and the degree of the
penalty imposed [Macali v. Revilla, G.R. No. L-
25308 (1926)] It may also assess and award
civil indemnity [Quemuel v. CA, G.R. No. L-
22794 (1946)]
Q: What is the decision if the SC en banc is
equally divided in opinion?
A: When the Supreme Court en banc is equally
divided in opinion or the necessary majority
cannot be had on whether to acquit the
appellant, the case shall again be deliberated
upon and if no decision is reached after re-
deliberation, the judgment of conviction of the
lower court shall be reversed and the accused
acquitted [Sec. 3, Rule 125]
Q: What are the modes by which a case may
reach the SC? [ A O C ]
A: (1) Automatic review, (2) ordinary appeal;
and (3) petition for review on certiorari.
UP LAW BOC PRE-WEEK REMEDIAL LAW

Q: When are each of the modes available?

A:
AUTOMATIC REVIEW
Available when the RTC
decision is appealed to CA
and the latter is of the
opinion that the penalty
should be death [Sec. 13(a),
Rule 124]
ORDINARY APPEAL
Available when CA imposes
reclusion perpetua, life
imprisonment or a lesser penalty.
[Sec. 13 (c), Rule 124]
Available when the penalty of
reclusion perpetua or death is
imposed on some of the
defendants and a lesser penalty
on the other co-defendants, on
account of their varying degree of
participation in the offense or due
to the presence of modifying
circumstances, in which case the
decision on the non-life convicts
is directly appealable to the SC
[People v. Carino (2002)]
PETITION FOR REVIEW ON
CERTIORARI
Available when the validity of any
treaty, executive agreement, law,
ordinance or executive order or
regulation is in question [Sec.
5(2)(a), Art. VIII, 1987
Constitution]
Available when the validity of law
is questioned by an accused
convicted under it by the TC, the
SC cannot review the evidence
or pass upon any other question
of law which may appear on the
record, but will only confine itself
to the question of the in/validity of
that law [Trinidad v. Sweeney,
G.R. No. 2487 (1904)]

Available when the jurisdiction of

any inferior court is in issue

Available when only an error or

question of law is involved [Sec.
6(a), Rule 45]

Q: What is the effect of erroneous mode of N. Search and Seizure

appeal?
A: As long as the steps formally required for the
perfection of an appeal were taken in due time,
appeal may be given due course, without
prejudice to requiring the appellant to file the
necessary petition for review on certiorari
which is also a form of appeal.
5. Effect of Appeal by Any of
Several Accused
Q: What is the effect of an appeal by any of
several accused?
A: An appeal taken by one or more of several
accused shall not affect those who did not
appeal, except insofar as the judgment of the
appellate court is favorable and applicable to
the latter. [People v. Valdez, G.R. No. 175602
(2013)]
Q: What is a search warrant?
A: It is an order in writing; issued in the name
of the People of the Philippines; signed by a
judge; and directed to a peace officer,
commanding him to search for personal
property described in the warrant and bring it
before the court [Sec. 1, Rule 126]
Q: What is the exclusionary rule? [ P D A P ]
A: No search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after the
examination under oath/affirmation of the
complaint and the witness he may produce,
and particularly describing the place to be
searched, and the things/persons to be seized
[Sec. 2, Art. III, Constitution] Under the
exclusionary rule, any evidence obtained in
violation of this is inadmissible for any purpose
in any proceeding [Sec. 3, 2nd par., Art. III,
Constitution].

Page 86 of 128
UP LAW BOC PRE-WEEK
Q: Does the constitutional protection above
apply to acts of private persons?
A: NO. The constitutional protection is directed
against the acts of the government and its
agents, not private persons [People v. Marti,
G.R. No. 81561 (1991)]
Q: What are the contents of a search
warrant?
A: The search warrant must be in writing and
contain [ STOP DN ]
1. Name of person against whom it is directed
2. Offense for which it was issued
3. The place to be searched
4. The description of the specific things to be
seized
5. A directive to law enforcement officers to
search and seize and for them to bring in
court the things seized
6. Signature of the judge issuing it
The absence of such requisites will cause the
search warrant’s downright nullification [Santos
v. Pryce Gases, Inc., G.R. No. 165122 (2007)]
Q: What is the definition of probable cause
in relation to the issuance of a search
warrant?
A: Probable cause means the existence of
such facts and circumstances which would lead
a reasonably discreet and prudent man to
believe that an offense has been committed,
and that objects sought in connection with the
offense are in the place sought to be searched
[People v. Breis., G.R. No. 205823 (2015)]
This probable cause must be shown to be
within the personal knowledge of the
complainant or the witnesses he may produce
and not based on mere hearsay. The probable
cause must refer only to one specific offense
[Roan v. Gonzales, G.R. No. 71410 (1986)]
Q: How must the judge conduct the
investigation upon receiving a complaint
for the issuance of a search warrant?
A:
1. The examination must be personally
conducted by the judge,
2. The examination must be in the form of
searching questions and answers;
Page 87 of 128
REMEDIAL LAW
3. The complainant and the witnesses shall
be examined on those facts personally
known to them;
4. The statements must be in writing and
under oath; and
5. The sworn statements of the complainant
and the witnesses, together with the
affidavits submitted, shall be attached to
the record. [Sec. 5, Rule 126]
A search warrant issued by a judge who did not
ask searching questions but only leading ones
and in a general manner is invalid [Uy v. BIR,
G.R. No. 129651 (2000)]
The judge must not simply rehash the contents
of the affidavit but must make his own inquiry
on the intent and justification of the application
[Yao v. People, G.R. No. 168306 (2007)]
Mere affidavits of the complainant or his
witnesses are not sufficient. The examining
judge has to take depositions in writing of the
complaint or his witnesses, and attach the
same to the record [Prudente v. Judge Dayrit,
G.R. No. 82870 (1989)]
Q: When is the description of the place to
be searched considered sufficiently
particular?
A: Description of the place to be searched is
sufficient if the officer with the search warrant
can, with reasonable efforts, ascertain and
identify the place intended [People v. Veloso,
G.R. No. L-23051 (1925)]
Q: What may be seized under a search
warrant?
A:
1. Personal property subject of the offense; [ S F U ]
2. Personal property stolen/embezzled and
other proceeds/fruits of the offense;
3. Personal property used or intended to be
used as the means of committing an
offense [Sec. 3, Rule 126]
The scope of the search warrant is limited to
personal property. It does not issue for seizure
of immovable properties [see Sec. 3, Rule 126]
UP LAW BOC PRE-WEEK
Q: What is the effect of a search warrant
containing both general and particular
descriptions of items to be seized?
A: The general description of the documents
listed in the search warrant does not render it
void if it is severable, and those items not
particularly described may be cut off without
destroying the whole [Uy v. BIR, G.R. No.
129651 (2000)]
1. Exceptions
Q: What are the exceptions to the search
warrant requirement? [ S P C C C I M O ]
A:
1. Search Incidental to Lawful Arrest
2. Consented Search
3. Search of a Moving Vehicle
4. Checkpoints; Body Checks in Airport
5. Plain View
6. Stop and Frisk
7. Enforcement of Customs Law
8. Other Exceptions:
a. Exigent and Emergency
Circumstances;
b. Buy-Bust Operation;
c. Private Searches
Q: When is a search incidental to a lawful
arrest allowed?
A: The rule assumes that the arrest is legal. If
the arrest is illegal, then the search is illegal
and as a result, the things seized are
inadmissible as evidence [People v. Aruta,
G.R. No. 120195 (1998)]
Even without a warrant, the person arrested
may be searched for: 1. Dangerous weapons
2. Anything which may have been used in the
commission of an offense, or 3. Anything which
may constitute proof in the commission of the
offense [Sec. 13, Rule 126]
Q: What are the requirements of a
consented search? [ R K A ]
A:
1. The right exists;
2. The person involved had knowledge, either
actual or constructive, of the existence of
such right; and
3. The said person had an actual intention to
relinquish the right. [People v. Nuevas,
G.R. No. 170233 (2007)]
Page 88 of 128
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It is the State which has the burden of proving,
by clear and positive testimony, that the
necessary consent was obtained and that it
was freely and voluntarily given.
Q: When is a search of a moving vehicle
allowed?
A: When a vehicle is stopped and subjected to
an extensive search, such a warrantless
search should be constitutionally permissible
only if the officers conducting the search have
reasonable or probable cause to believe,
before the search, that either:
1. the motorist is a law-offender; or
2. they will find the instrumentality or evidence
pertaining to a crime in the vehicle to be
searched [Caballes v. CA, G.R. No.
136292 (2002)]
Otherwise
However, these searches would be limited to
visual inspection and the vehicles or their
occupants cannot be subjected to physical or
body searches, except where there is probable
cause to believe that the occupant is a law
offender or the contents of the vehicles are
instruments or proceeds of some criminal
offense.
Q: What are requirements of a plain view
search? [ P I A F ]
A:
1. Police must have prior justification to a prior
valid intrusion i.e., based on the valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties
2. Evidence was inadvertently discovered by
the police who have a right to be where
they are
3. Evidence must be immediately and
apparently illegal (i.e., drug paraphernalia)
4. Plain view justified mere seizure of
evidence without further search [People v.
Martinez, G.R. No. 191366 (2010)]
Q: When is a stop and frisk search allowed?
A: Stop and frisk is a limited protective search
of outer clothing for weapons [Malacat v. CA,
G.R. No. 123595 (1997)]. Where a police
officer observes unusual conduct, which leads
him reasonably to conclude in the light of his
experience that criminal activity may be afoot,
and that a person with whom he is dealing may
UP LAW BOC PRE-WEEK
be armed and presently dangerous, he is
entitled to conduct a stop and frisk search.
Q: What are the remedies from unlawful
searches and seizure? [ P C Q R S ]
A:
1. Prevent the search - The person to be
searched may resist the search and
employ any means necessary to prevent it,
without incurring any criminal liability
[People v. Chan Fook, G.R. No. L-16968
(1921)]
2. File a criminal action against the officer - A
public officer/employee who procures a
search warrant without just cause is
criminally liable under Art. 129, RPC, on
search warrants maliciously obtained and
abuse in the service of those legally
obtained.
3. File a motion to quash the illegal warrant -
A motion to quash a search warrant may be
based on grounds extrinsic of the search
warrant, such as (1) the place searched or
the property seized are not those specified
or described in the search warrant; and (2)
there is no probable cause for the issuance
of the search warrant [Abuan v. People,
G.R. No. 168773 (2006)]
4. File a motion to return the things seized
5. File a motion to suppress evidence
2. Cybercrime Warrants
Q: What is the venue for filing a criminal
action for cybercrime offenses and for filing
an application for a cybercrime warrant?
A: The action shall be filed before the
designated cybercrime court of the province or
city: [ E C D ]
1. Where the offense or any of its elements is
committed, or
2. Where any part of the computer system
used is situated, or
3. Where any of the damage caused to a
natural or juridical person took place
Note: Cybercrime courts in Quezon City, City of
Manila, Makati City, Pasig City, Cebu City, Iloilo
City, Davao City, and Cagayan De Oro City
have the special authority to act on applications
and issue warrants which shall be enforceable
nationwide and outside the Philippines.
Page 89 of 128
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Q: How long must computer data be
preserved?
A:
GR: Data should be kept, retained, and
preserved by a service provider for a minimum
period of 6 months from:
1. The date of transaction in the case of traffic
data and subscriber’s information;
2. The date of receipt of order from law
enforcement requiring its preservation in
the case of content data
Exception: A one-time extension for another 6
months may be ordered.
Q: What are the types of cybercrime
warrants? [ D I S E ]
A:
1. Warrant to Disclose Computer Data
(WDCD) [Sec. 4]
2. Warrant to Intercept Data (WICD) [Sec. 5]
3. Warrant to Search, Seize and Examine
Computer Data (WSSECD) [Sec. 6]
4. Warrant to Examine Computer Data
(WECD) [Sec 6.9]
Q: What is a warrant to Disclose Computer
Data?
A: It is an order in writing issued in the name of
the People of the Philippines, signed by the
judge, upon application of law enforcement
authorities, authorizing the latter to issue an
order to disclose and accordingly, require any
person or service provider to disclose or submit
subscriber’s information, traffic data, or
relevant data in his/her or its possession or
control.
Q: What is a warrant to Intercept Computer
Data?
A: It is an order in writing issued in the name of
the People of the Philippines, signed by a
judge, upon application of law enforcement
authorities, authorizing the latter to carry out
any or all of the activities of interception.
Interception refers to:
1. Listening to,
2. Recording,
3. Monitoring, or
4. Surveillance of the content of
communications, including procuring of the
content data:
UP LAW BOC PRE-WEEK
a. Directly, through access and use of a
computer system, or
b. Indirectly through the use of electronic
eavesdropping or tapping devices, at
the same time that the communication
if occurring
Q: What is a Warrant to Search, Seize and
Examine Computer Data?
A: It is an order in writing issued in the name of
the People of the Philippines, signed by a
judge, upon application of law enforcement
authorities, authorizing the latter to search the
particular place for items to be seized and/or
examined.
Q: What is a Warrant to Examine Computer
Data?
A: It is a warrant applied for by law
enforcement authorities before searching a
computer device or computer system (for the
purpose of obtaining for forensic examination
the computer data) which was obtained via a
lawful warrantless arrest or by any other lawful
method.
It is available when:
1. The law enforcement authority acquires
possession of a computer device or
computer system;
2. Through a lawful warrantless arrest, or
other lawful method;
3. The law enforcement authority shall first
apply for WECD before searching for
forensic examination the computer data
contained therein
Q: When can computer data be destroyed?
A: The service providers and law enforcement
authorities, as the case may be, shall
immediately and completely destroy the
computer data subject of preservation and
examination upon expiration of the following
periods:
1. Sec 13: Service providers preserve the
data for a minimum of 6 months, unless a
one-time extension of another 6 months is
ordered by the law enforcement authority,
or in the event that that the data was used
as evidence in which case the data is
preserved until the final termination of the
case.
2. Sec 15: After lapse of the time period
specified in the warrant, unless the court
Page 90 of 128
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granted extension of time to complete
examination for no longer than 30 days
(from the time of the court’s approval).
O. Provisional Remedies in
Criminal Cases
1. Nature
Q: When may provisional remedies in
criminal cases be availed of?
A: Provisional remedies in civil actions, insofar
as they are applicable, may be availed of in
connection with the civil action deemed
instituted with the criminal action [Sec. 1, Rule
127] If the civil action is suspended on account
of filing of the criminal action, the court with
which the civil case is filed is not thereby
deprived of its authority to issue auxiliary writs
that do not go into the merits of the case.
[Ramcar, Inc v. de Leon, G.R. No. L-1329
(1947)]
Q: When can provisional remedies not be
availed of?
A: (1) Offended party has waived the civil
claim; (2) Offended party has reserved the civil
claim; (3) Offended party has already instituted
a separate civil action; (4) Criminal action
carries with it no civil liability. It must be noted
that if the civil action has been waived,
reserved, or instituted separately, the
provisional remedy should be applied for in the
separate civil action instituted.
2. Kinds
Q: What are the provisional remedies?
A: (1) Preliminary attachment; (2) Injunction;
(3) Protection orders
3. Preliminary Attachment
Q: When is preliminary attachment proper?
A: The offended party may have the property
of the accused attached as security for the [ A M P R ]
satisfaction of any judgment that may be
recovered from the accused in the following
cases: (1) When the accused is about to
abscond from the Philippines; (2) When the
criminal action is based on a claim for money
or property embezzled or fraudulently
UP LAW BOC PRE-WEEK
misapplied or converted to the use of the
accused who is a public/corporate officer,
attorney, factor, broker, agent or clerk, in the
course of his employment as such, or by any
other person in a fiduciary capacity, or for a
willful violation of duty; (3) When the accused
has concealed, removed or disposed of his
property, or is about to do so; and (4) When the
accused resides outside the Philippines [Sec.
2, Rule 127]
Q: How is the writ of preliminary attachment
issued and implemented?
A: The writ may be issued ex parte before
acquisition of jurisdiction over the accused
[Cuarter v. CA, G.R No. 102448 (1992)]
However, it may be implemented only after
acquisition of jurisdiction over the person of the
accused [Gonzalez v. State Properties, G.R.
No. 140765 (2001)]
Q: Who may apply for the issuance of the
writ of preliminary attachment?
A: A public prosecutor has the authority to
apply for preliminary attachment to protect the
interest of the offended party. [Santos v. Judge
Flores, G.R. No. L-18251 & L-18252 (1962)]
Q: Is notice required before the issuance of
the writ of preliminary attachment?
A: No, notice to the adverse party or hearing
on the application is not required before a writ
of preliminary attachment may issue as a
hearing would defeat the purpose of the
provisional remedy. The time which such
hearing would take could be enough to enable
the defendant to abscond or dispose of his
property before a writ of attachment may issue.
[Mindanao Savings and Loan Assoc. v. CA,
G.R. No. 84481 (1989)]
4. Injunction
Q: When is injunction proper?
A: (1) To afford adequate protection to the
constitutional rights of the accused; (2) When
necessary for the orderly administration of
justice or to avoid oppression or multiplicity of
actions; (3) When there is a pre-judicial
question which is sub judice; (4) When the acts
of the officer are without or in excess of
authority; (5) Where the prosecution is under
an invalid law, ordinance or regulation; (6)
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When double jeopardy is clearly apparent; (7)
Where the court has no jurisdiction over the
offense; (8) Where it is a case of persecution
rather than prosecution; (9) Where the charges
are manifestly false and motivated by the lust
for vengeance; (10) When there is clearly no
prima facie case against the accused and a
motion to quash on that ground has been
denied, and Preliminary injunction has been
issued by the Supreme Court to prevent the
threatened unlawful arrest of petitioners
[Brocka v. Enrile, G.R. No. 69863 (1990)]
5. Protection Orders
Q: What is a protection order?
A: A protection order is an order issued for the
purpose of preventing further acts of violence
against a woman or her child. [Sec. 8, R.A. No.
9262]
Q: When is the order applicable?
A: Protection orders are applicable in criminal
actions involving violence against women and
their children. [Sec. 22, R.A. No. 9262]
6. Remedy of Accused Against
Provisional Remedies
Q: What remedy is available to the
accused?
A: The accused may present evidence to prove
his defense and damages, if any, arising from
the issuance of a provisional remedy in the
case. [Sec. 11(b), Rule 119]
EVIDENCE
A. General Principles
1. Distinguish: Proof vs. Evidence
Q: Distinguish proof from evidence.
A: Proof is the effect or result of evidence. It is
the probative effect of evidence and is the
conviction or persuasion of the mind resulting
from the consideration of the evidence. On the
other hand, evidence is the medium or means
UP LAW BOC PRE-WEEK REMEDIAL LAW

by which a fact is proved or disproved. [Jones 3. Admissibility of Evidence

on Evidence]
Q: What is the equipoise rule or
equiponderance doctrine?
A: The equipoise rule provides that where the
evidence in a criminal case is evenly balanced,
the constitutional presumption of innocence
tilts the scales in favor of the accused. Where
the inculpatory facts and circumstances are
capable of two or more explanations, one of
which is consistent with the innocence of the
accused and the other consistent with his guilt,
then the evidence does not fulfill the test of
moral certainty and is not sufficient to support
a conviction. [People v. Lanurias, G.R. No.
207662, April 13, 2016]
Q: What are the requisites for admissibility
of evidence?
A: For evidence to be admissible, two elements
must concur:
1. The evidence must be relevant; and
Note: It is relevant if “it has such a relation
to the fact in issue as to induce belief in its
existence or non-existence.” [Rule 128,
Sec. 4]
2. The evidence is not excluded by the rules,
or otherwise stated, it must be competent
[Tan v. Hosana, G.R. No. 190846,
February 3, 2016]
Note: Competency is determined by the
prevailing exclusionary rules of evidence.

It is based on the principle that no one shall be Q: Arrested in a buy-bust operation,

deprived of his life, liberty or property without Edmond was brought to the police station
due process of law [Sec. 1, Art III., Constitution] where he was informed of his constitutional
rights. During the investigation, Edmond
2. Distinguish: Factum Probans (refused to give any statement. However,
vs. Factum Probandum the arresting officer asked Edmond to
acknowledge in writing that six (6) sachets
Q: Distinguish between factum probans and of “shabu” were confiscated from him.
factum probandum Edmond consented and also signed a
A: receipt for the amount of P3,000.00,
allegedly representing the “purchase price
FACTUM FACTUM of the shabu.” At the trial, the arresting
PROBANS PROBANDUM officer testified and identified the
documents executed and signed by
Evidentiary fact Ultimate fact
Edmond. Edmond’s lawyer did not object to
Fact by which the Fact sought to be the testimony. After the presentation of the
factum probandum is established testimonial evidence, the prosecutor made
to be established a formal offer of evidence which included
the documents signed by Edmond.
Materials evidencing Proposition
the proposition Edmond’s lawyer objected to the
admissibility of the documents for being the
In civil cases: “fruit of the poisoned tree.” Resolve the
elements of the objection with reasons. (2009 BAR
cause of action QUESTION)
A: The objection to the admissibility of the
In criminal cases: documents which the arresting officer asked
elements of the Edmond to sign without the benefit of counsel,
crime [Prof. Avena] is well-taken. Said documents having been
signed by the accused while under custodial
[2 Regalado 698-699, 2008 Ed.] investigation, imply an “admission” without the
benefit of counsel, that the shabu came from
him and that the P3,000.00 was received by
him pursuant to the illegal selling of the drugs.
Thus, it was obtained by the arresting officer in

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UP LAW BOC PRE-WEEK REMEDIAL LAW

clear violation of Sec. 12(3), Art. Ill of the 1987 4. Burden of Proof and Burden of
Constitution, particularly the right to be assisted Evidence
by counsel during custodial investigation.
Q: Distinguish burden of proof from burden
Moreover, the objection to the admissibility of of evidence.
the evidence was timely made, i.e., when the A:
same is formally offered.
BURDEN OF BURDEN OF
Q: What are the exclusionary rules? PROOF EVIDENCE
A:
Under the 1987 Constitution, the following are As to nature
the exclusionary rules: [ C U P I D V ]
1. Unreasonable searches and seizures [Sec. Burden of proof is the Burden of evidence
2, Art. III, 1987 Constitution] duty of a party to is the duty of a party
2. Privacy of communication and present evidence on to present evidence
correspondence [Sec. 3, Art. III, 1987 the facts in issue sufficient to establish
Constitution] necessary to or rebut a fact in
3. Right to counsel, prohibition on torture, establish his or her issue to establish a
force, violence, threat, intimidation or other claim or defense by prima facie case.
means which vitiate the free will; prohibition the amount of
on secret detention places, solitary, evidence required by
incommunicado [Sec. 12, Art. III, 1987 law.
Constitution]
4. Right against self-incrimination [Sec. 17, As to shift of burden
Art. III, 1987 Constitution]
Burden of proof Burden of evidence
Other statutory exclusionary rules include the never shifts. may shift from one
following: party to the other in
1. Lack of documentary stamp tax to the course of the
documents required to have makes such proceedings,
document inadmissible as evidence in depending on the
court until the requisite stamp/s shall have exigencies of the
been affixed thereto and cancelled. [Sec. case.
201, NIRC] [Rule 131, Section 1]
2. Any communication obtained by a person,
not being authorized by all the parties to
any private communication, by tapping any B. Judicial Notice and Judicial
wire/cable or using any other Admissions
device/arrangement to secretly overhear /
intercept / record such information by using 1. What Need Not Be Proved
any device, shall not be admissible in
evidence in any judicial/quasi- Q: What are the facts that need not be
judicial/legislative/administrative hearing or proved? [ C A N U F A ]
investigation. [Secs. 1 and 4, R.A. No. 4200 A:
or Wire-Tapping Act] 1. Those of which the courts may take judicial
notice [Rule 129];
2. Those that are judicially admitted [Rule
129];
3. Those that are conclusively presumed
[Rule 131];
4. Those that are disputably presumed but
uncontradicted [Rule 131];

Page 93 of 128
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5. Facts admitted or not denied provided they
have been sufficiently alleged [Sec. 1, Rule
8]; and
6. Admissions by adverse party [Rule 26]
2. Matters of Judicial Notice
Q: What are the matters subject to
mandatory judicial notice? [ S I P Na T Geo ]
A:
1. Existence and territorial extent of states;
2. Their political history, forms of government,
and symbols of nationality;
3. Law of nations; International law
4. Admiralty and maritime courts of the world
and their seals;
5. Political constitution and history of the
Philippines;
6. Official acts of the legislative, executive
and judicial departments of the National
Government of the Philippines;
7. Laws of nature;
8. Measure of time; and
9. Geographical divisions
[Sec. 1, Rule 129]
Q: What are the matters subject to
discretionary judicial notice? [ P U J ]
A:
1. Matters of public knowledge;
2. Matters capable of unquestionable
demonstration; and
3. Matters ought to be known to judges
because of their judicial functions (judicial
knowledge)
[Sec. 2, Rule 129]
Q: Can the Philippine courts take judicial
notice of foreign laws?
A: In general, and in--the absence of statutory
requirement to the contrary, the courts will not
take judicial notice of the laws prevailing in
another country. Foreign laws must be alleged
and proved. [Northwest Orient Airlines v. CA,
G.R. No. 112573, February 9, 1995] The
exception is where the foreign law is within the
actual knowledge of the court such as when the
law is generally well known, had been ruled
upon in previous case before it and none of the
parties claim otherwise, the court may take
judicial notice of the foreign law. [PCIB v.
Escolin, G.R. Nos. L-27860 and L-27896,
March 29, 1974]
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Q: What is the Doctrine of Processual
Presumption?
A: It is when a foreign law is not pleaded or
even if pleaded, it is not proved, the
presumption is that the foreign law is the same
as ours. It is also referred] 'to as the Doctrine of
Presumed-Identity Approach. [EDI-
Staffbuilders International, Inc. v. NLRC, G.R
No. 11,5587, October 26, 2007] Additionally,
the rule is that there is no judicial notice of any
foreign law. As any other fact, it must be
alleged and proved. If the foreign law is not
properly pleaded or proved, the presumption of
identity or similarity of the foreign law to our
own laws, otherwise known as processual
presumption, applies. [Continent Micronesia
Inc. v. Basso, G.R. No. 178382-83, September
23, 2015]
C. Object (Real) Evidence
1. Nature of Object Evidence
Q: What objects are considered object
evidence?
A: Object as evidence are those addressed to
the senses of the court. When an object is
relevant to the fact in issue, it may be exhibited
to, examined or viewed by the court [Sec. 1,
Rule 130].
It is not limited to the view of an object. It covers
the entire range of human senses: hearing,
taste, smell, and touch [Riano, 2016].
Note: Documents are object (real) evidence if
the purpose is to prove their existence or
condition, or the nature of the handwriting
thereon, or to determine the age of the paper
used, or the blemishes or alterations thereon,
as where falsification is alleged [Regalado,
2008].
2. Requisites for Admissibility
Q: What are the requirements for
admissibility of object evidence?
A: The basic requisites for admissibility of
object evidence are the following: [ R O A ]
1. Evidence must be relevant;
2. Evidence must be authenticated by a
competent witness;
 UP LAW BOC
3. Object must be formally offered [Sec. 34,
Rule 132]
[Riano 101, 2016 Ed.]
3. Chain of Custody in Relation to
Sec. 21 of the Comprehensive
Dangerous Drugs Act of 2002
Q: What are the four links in the chain of
custody of confiscated items under the
Comprehensive Dangerous Drugs Act of
2002?
A: As a general rule, four links in the chain of
custody of the confiscated item must be
established:
1. first, the seizure and marking, if practicable,
of the illegal drug recovered from the
accused by the apprehending officer;
2. second, the turnover of the illegal drug
[ A I F C ] seized by the apprehending officer to the
investigating officer;
3. third, the turnover by the investigating
officer of the illegal drug to the forensic
chemist for laboratory examination; and
4. fourth, the turnover and submission of the
marked illegal drug seized from the
forensic chemist to the court.
[People v. Gayoso, G.R. No. 206590 (2017)]
Q: Discuss the "chain of custody" principle
with respect to evidence seized under R.A.
9165 or the Comprehensive Dangerous
Drugs Act of 2002. (2012 BAR QUESTION)
A: In prosecutions involving narcotics and
other illegal substances, the substance itself
constitutes part of the corpus delicti of the
offense and the fact of its existence is vital to
sustain a judgment of conviction beyond
reasonable doubt. The chain of custody
requirement is essential to ensure that doubts
regarding the identity of the evidence are
removed through the monitoring and tracking of
the movements of the seized drugs from the
accused, to the police, to the forensic chemist,
and finally to the court. [People vs. Sitco, G.R.
No. 178202, May 14, 2010]. Ergo, the
existence of the dangerous drug is a condition
sine qua non for conviction [People vs. De
Guzman Y Danzil, G.R. No. 186498, March 26,
2010]. The failure to establish, through
convincing proof, that the integrity of the seized
items has been adequately preserved through
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an unbroken chain of custody is enough to
engender reasonable doubt on the guilt of an
accused [People vs. De Guzman Y Danzil].
Nonetheless, non-compliance with the
procedure shall not render void and invalid the
seizure and custody of the drugs when: (1)
such non-compliance is attended by justifiable [ J I ]
grounds; and (2) the integrity and the
evidentiary value of the seized items are
properly preserved by the apprehending team.
There must be proof that these two (2)
requirements were met before such
noncompliance may be said to fall within the
scope of the proviso. [People vs. Dela Cruz,
G.R. No. 177222, October 29, 2008, 570 SCRA
273].
ALTERNATIVE A: Crucial in proving chain of
custody is the marking of the seized drugs or
other related items immediately after they are
seized from the accused. Marking after seizure
is the starting point in the custodial link, thus, it
is vital that the seized contraband are
immediately marked because succeeding
handlers of the specimens will use the
markings as reference. Thus, non-compliance
by the apprehending/buy-bust team with
Sec.21 of R.A. 9165 is not fatal as long as there
is justifiable ground therefor, and as long as the
integrity and the evidentiary value of the
confiscated/seized items are properly
preserved by the apprehending officer/team.
[People vs. Mantalaba, G.R. No. 186227, July
20, 2011]. (N.B.: The case of People v. Romy
Lim, G.R. No. 231989, 4 September 2018 be
considered)
4. DNA Evidence
Q: TRUE or FALSE. Vallejo standard refers
to jurisprudential norms considered by the
court in assessing the probative value of
DNA evidence. (2009 BAR QUESTION)
A: TRUE. In People v. Vallejo, 382 SCRA 192
(2002), it was held that in assessing the
probative value of DNA evidence, courts
should consider, among others things, the
following data: how the samples were
collected, how they were handled, the
possibility of contamination of the samples, the
procedure followed in analyzing the samples,
whether the proper standards and procedures
were followed in conducting the tests, and the
UP LAW BOC PRE-WEEK
qualification of the analyst who conducted the
tests.
D. Documentary Evidence
1. Meaning of Documentary
Evidence
Q: What is considered documentary
evidence?
A: Writings, recordings, photographs or any
material containing letters, words, sounds,
numbers, figures, symbols, or their equivalent,
or other modes of written expression offered as
proof of their contents.
Photographs include still pictures, drawings,
stored images, x-ray films, motion pictures or
videos. [Sec. 2, Rule 130]
2. Requisites for Admissibility
Q: What are the requisites for admissibility
of documentary evidence? [ROA]
A:
1. The document must be relevant;
2. The evidence must be authenticated;
3. The document must be authenticated by a
competent witness;
4. The document must be formally offered in
evidence
[Riano 132, 2016 Ed.]
3. Original Document Rule
Q: What is the Original Document Rule?
A: The general rule is when the subject of
inquiry is the contents of a document, writing,
recording, photograph or other record, no
evidence is admissible other than the original
document itself.
However, the following cases are exceptions to
the rule: [ L C N P I ]
1. When the original is lost or destroyed, or
cannot be produced in court, without bad
faith on the part of the offeror;
2. When the original is in the custody or under
the control of the party against whom the
evidence is offered, and the latter fails to
produce it after reasonable notice, or the
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original cannot be obtained by local judicial
processes or procedures;
3. When the original consists of numerous
accounts or other documents which cannot
be examined in court without great loss of
time and the fact sought to be established
from them is only the general result of the
whole;
4. When the original is a public record in the
custody of a public officer or is recorded in
a public office; and
5. When the original is not closely-related to a
controlling issue.
[Sec. 3, Rule 130]
Q: What is considered an original of a
document?
A: An "original" of a document is the document
itself or any counterpart intended to have the
same effect by a person executing or issuing it.
An "original" of a photograph includes the
negative or any print therefrom. If data is stored
in a computer or similar device, any printout or
other output readable by sight or other means,
shown to reflect the data accurately, is an
"original." [Sec. 4, Rule 130]
Q: Police officers arrested Mr. Druggie in a
buy-bust operation and confiscated from
him 10 sachets of shabu and several
marked genuine peso bills worth ₱5,000.00
used as the buy-bust money during the buy-
bust operation.
At the trial of Mr. Druggie for violation of
R.A. No. 9165 (Comprehensive Dangerous
Drug Act of 2002), the Prosecution offered
in evidence, among others, photocopies of
the confiscated marked genuine peso bills.
The photocopies were offered to prove that
Mr. Druggie had engaged at the time of his
arrest in the illegal selling of dangerous
drugs.
Invoking the Best Evidence Rule, Atty. Maya
Bang, the defense counsel, objected to the
admissibility of the photocopies of the
confiscated marked genuine peso bills.
Should the trial judge sustain the objection
of the defense counsel? Briefly explain your
answer. (2017 BAR QUESTION)
UP LAW BOC PRE-WEEK
A: No, the trial judge should not sustain the
objection that invokes the best evidence rule.
The Supreme Court has held that the best
evidence rule applies only to documentary
evidence, not to object or testimonial evidence.
Here the marked money is object not
documentary evidence since it is being offered
to prove not its contents but its existence and
use in the buy-bust operation. [People v.
Tandoy, 192 SCRA 28 (1990)]
4. Electronic Evidence
Q: TRUE or FALSE. An electronic document
is the equivalent of an original document
under the Best Evidence Rule if it is a
printout or output readable by sight or other
means, shown to reflect the data accurately.
(2009 BAR QUESTION) [ P R R ]
A: TRUE. This statement is embodied in Sec.
l, Rule 4 of A.M. No. 01-7-01-SC, re: Rules on
Electronic Evidence.
5. Parol Evidence Rule
Q: What is parol evidence?
A: It is any evidence aliunde, whether oral or
written, which is intended or tends to vary or
contradict a complete and enforceable
agreement embodied in a document [2
Regalado 730, 2008 Ed.].
Q: Parol evidence is an:
A. agreement not included in the
document
B. oral agreement not included in the
document
C. agreement included in the document
D. oral agreement included in the
document (2014 BAR QUESTION)
A: (B) oral agreement not included in the
document. Under Section 10 of Rule 130 of the
Rules of Court, when the terms of an
agreement are reduced in writing, it is deemed
to contain all the terms agreed upon and no
evidence of such terms can be admitted other
than the contents of the said written agreement
[Financial Building Corporation v. Rudlin
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International Corporation, G.R. No. 164186,
October 4, 2010]
6. Authentication and Proof of
Documents
Q: What are the classes of documents?
A: Documents are either public or private.
Public documents are: [ O N T L ]
1. The written official acts, or records of the
sovereign authority, official bodies and
tribunals, and public officers, whether of the
Philippines, or of a foreign country;
2. Documents acknowledged before a notary
public except last wills and testaments;
3. Documents that are considered public
documents under treaties and conventions
which are in force between the Philippines
and the country of source; and
4. Public records, kept in the Philippines, of
private documents required by law to be
entered therein.
All other writings are private. [Sec. 19, Rule
132]
E. Testimonial Evidence
1. Qualifications of a Witness
Q: What are the qualifications of a witness?
A:
1. He/she can perceive
a. Corollary to perception is that the
witness must have personal knowledge
of the facts surrounding the subject
matter of his testimony [Sec. 22, Rule
130]
2. He/she can make known his perception
a. This means that he/she must have the
ability to remember and communicate
the remembered perception
3. He/she must take an oath or affirmation
[Sec. 1, Rule 132]
4. He/she must not possess any of the
disqualifications
A deaf-mute is competent to be a witness so
long as he/she has the faculty to make
observations and he/she can make those
UP LAW BOC PRE-WEEK
observations known to others [People v.
Aleman y Longhas, G.R. No. 181539 (2013)]
2. Disqualifications of Witnesses
Q: What are the disqualifications of
witnesses under the Amended Rules on
Evidence?
A:
1. Disqualification by reason of marriage
[Sec. 23, Rule 130]; and
2. Disqualification by reason of privileged
communication:
a. Marital privilege;
b. Attorney-client privilege;
c. Doctor-patient privilege;
d. Minister-penitent privilege; or
e. Public officer as regards
communications made in official
confidence [Sec. 24, Rule 130]
Q: A tugboat owned by Speedy Port
Service, Inc. (SPS) sank in Manila Bay while
helping tow another vessel, drowning five
(5) of the crew in the resulting shipwreck. At
the maritime board inquiry, the four (4)
survivors testified. SPS engaged Atty. Ely
to defend it against potential claims and to
sue the company owning the other vessel
for damages to the tug. Ely obtained signed
statements from the survivors. He also
interviewed other persons, in some
instance making memoranda. The heirs of
the five (5) victims filed an action for
damages against SPS.
Plaintiff’s counsel sent written
interrogatories to Ely, asking whether
statements of witnesses were obtained; if
written, copies were to be furnished; if oral,
the exact provisions were to be set forth in
detail. Ely refused to comply, arguing that
the documents and information asked are
privileged communication. Is the
contention tenable? Explain. (2008 BAR
QUESTION)
A: Yes, the contention of counsel for SPS is
tenable considering that he was acting in his
professional capacity in bringing about the
statement he obtained from witnesses and the
memoranda he made. The notes, memoranda,
and writings made by counsel in pursuance of
his professional duty, form part of his private
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and confidential files in the cases handled by
him; hence privileged. [Section 24, Rule 130;
Air Philippines Corp. v. Pennswell, Inc., 540
SCRA 215 (2007)]
3. Admissions and Confessions
Q: TRUE OR FALSE. Under the doctrine of
adoptive admission, a third party's
statement becomes the admission of the
party embracing or espousing it. (2009 BAR
QUESTION)
A: TRUE. The effect or consequence of the
admission will bind also the party who adopted
or espoused the same, as applied in Estrada v.
Desierto, 356 SCRA 108 (2001). An adoptive
admission is a party's reaction to a statement
or action by another person when it is
reasonable to treat the party's reaction as an
admission of something stated or implied by
the other person.
4. Judicial Affidavit Rule [A.M. 12-
8-8-SC]
Q: Pedro was charged with theft for stealing
Juan's cellphone worth P20,000.00.
Prosecutor Marilag at the pre-trial
submitted the judicial affidavit of Juan
attaching the receipt for the purchase of the
cellphone to prove civil liability. She also
submitted the judicial affidavit of Mario, an
eyewitness who narrated therein how Pedro
stole Juan's cellphone.
At the trial, Pedro's lawyer objected to the
prosecution's use of judicial affidavits of
her witnesses considering the imposable
penalty on the offense with which his client
was charged. (2015 BAR QUESTION)
A) Is Pedro's lawyer correct in objecting to
the judicial affidavit of Mario?
A: Yes, Pedro’s lawyer is correct in objecting to
the judicial affidavit of Mario. The Judicial
Affidavit Rule shall apply only to criminal
actions where the maximum of the imposable
penalty does not exceed six years [Sec. 9 (a)
(1), A.M. No. 12-8-8-SC or the Judicial Affidavit
Rule]. Here, the maximum impossible penalty
for the crime of theft of a cell phone worth
P20,000.00 is prision mayor in its minimum to
UP LAW BOC PRE-WEEK
medium periods, or six years and one day to
eight years and one day. Thus, Pedro’s lawyer
is correct in objecting to the judicial affidavit of
Mario.
[Note: The Committee respectfully
recommends that the examinees be given full
credit to any answer given to the question,
because the specific imposable penalties for
crimes or offenses charged are not included in
the 2015 BAR Examination Syllabus in
Remedial Law.]
B) Is Pedro's lawyer correct in objecting to
the judicial affidavit of Juan?
A: No, Pedro’s lawyer is not correct in objecting
to the judicial affidavit of Juan because the
Judicial Affidavit Rules apply with respect to the
civil aspect of the actions, regardless of the
penalties involved [Sec. 9, A.M. No. 12-8-8-SC
or the Judicial Affidavit Rule]. Here, the judicial
affidavit of Juan was offered to prove the civil
liability of Pedro. Thus, the objection of Pedro’s
lawyer to the judicial affidavit of Juan is not
correct.
C) At the conclusion of the prosecution's
presentation of evidence, Prosecutor
Marilag orally offered the receipt attached
to Juan's judicial affidavit, which the court
admitted over the objection of Pedro's
lawyer.
After Pedro's presentation of his evidence,
the court rendered judgment finding him
guilty as charged and holding him civilly
liable for P20,000.00.
Pedro's lawyer seasonably filed a motion
for reconsideration of the decision
asserting that the court erred in awarding
the civil liability on the basis of Juan's
judicial affidavit, a documentary evidence
which Prosecutor Marilag failed to orally
offer. Is the motion for reconsideration
meritorious?
A: No. The motion for reconsideration is not
meritorious. The judicial affidavit is not required
to be orally offered as separate documentary
evidence, because it is filed in lieu of the direct
testimony of the witness. It is offered, at the
time the witness is called to testify, and any
objection to it should have been made at the
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time the witness was presented [Sec. 6 and 8,
A.M. No. 12-8-8-SC or the Judicial Affidavit
Rule]. Since the receipt attached to the judicial
affidavit was orally offered, there was enough
basis for the court to award civil liability.
Q: What are the contents of a judicial
affidavit? (2016 BAR QUESTION)
A: A judicial affidavit shall be prepared in the
language known to the witness and, if not in
English or Filipino, accompanied by a
translation in English or Filipino, and shall
contain the following: [ W L O Q S J ]
1. The name, age, residence or business
address, and occupation of the witness;
2. The name and address of the lawyer who
conducts or supervises the examination of
the witness and the place where the
examination is being held;
3. A statement that the witness is answering
the questions asked of him, fully conscious
that he does so under oath, and that he
may face criminal liability for false
testimony or perjury;
4. Questions asked of the witness and his
corresponding answers, consecutively
numbered, that:
a. Show the circumstances under which
the witness acquired the facts upon
which he testifies;
b. Elicit from him those facts which are
relevant to the issues that the case
presents; and
c. Identify the attached documentary and
object evidence and establish their
authenticity in accordance with the
Rules of Court;
5. The signature of the witness over his
printed name; and
6. A jurat with the signature of the notary
public who administers the oath or an
officer who is authorized by law to
administer the same [Section 3, A.M. No.
12-8-8 SC, Judicial Affidavit Rule].
UP LAW BOC PRE-WEEK REMEDIAL LAW

F. Offer and Objection Here, the evidence is not on the Prosecution

1. Offer of Evidence
Q: What is the manner required for an offer
of evidence?
A: All evidence must be offered orally. [Sec. 35,
Rule 132]
Q: What elements should concur for
circumstantial evidence to be sufficient for
conviction? (2017 BAR QUESTION)
A: The following elements should concur for
circumstantial evidence to be sufficient for
conviction: [ M F C ]
1. There is more than one circumstance.
2. The facts from which the inferences are
derived are proven.
3. The combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt. [Sec. 4, Rule 133]
witness’s general reputation for honesty, truth,
or integrity but on his aggressive and violent
tendencies. The evidence had nothing to do
with the witness’s character for truthfulness or
untruthfulness. Hence the impeachment was
improper.
2. When to Make an Offer
Q: When is an offer made?
A: The proper time to offer evidence depends
on its form.
The offer of the testimony of a witness in
evidence must be made at the time the witness
is called to testify.
The offer of documentary and object evidence
shall be made after the presentation of a party's
testimonial evidence. [Sec. 35, Rule 132]

Q: In an attempt to discredit and impeach a 3. Tender of Excluded Evidence

Prosecution witness in a homicide case, the
defense counsel called to the stand a
person who had been the boyhood friend
and next-door neighbor of the Prosecution
witness for 30 years. One question that the
defense counsel asked of the impeaching
witness was: "Can you tell this Honorable
Court about the general reputation of the
prosecution witness in your community for
aggressiveness and violent tendencies?"
Would you, as the trial prosecutor,
interpose your objection to the question of
the defense counsel? Explain your answer.
A: Yes, as the trial prosecutor, I would
interpose my objection to the defense
counsel’s question on the ground of improper
impeachment.
Q: What is a tender of excluded evidence?
(2017 BAR QUESTION)
A: Tender of excluded evidence is the remedy
of a party when the evidence he has offered is
excluded by the court.
If documentary or object evidence is excluded
by the court, the offeror may have the same
attached to or made part of the record. If the
evidence excluded is oral, the offeror may state
for the record the name and other personal
circumstances of the witness and the
substance of the proposed testimony. [Sec. 40,
Rule 132]

Under the Revised Rules on Evidence, an

adverse party’s witness may be properly
impeached by reputation evidence provided
that it is to the effect that the witness’s general
reputation for honesty, truth, or integrity was
bad. [Sec. 11, Rule 132] The reputation must
only be on character for truthfulness or
untruthfulness. [Cordial v. People, 166 SCRA
17]

Page 100 of 128

UP LAW BOC PRE-WEEK LEGAL AND JUDICIAL ETHICS

LEGAL AND
JUDICIAL ETHICS
PRE-WEEK

Page 101 of 128

UP LAW BOC PRE-WEEK
LEGAL ETHICS
I. Qualifications of new lawyers
(including reacquisition of
citizenship)
Q: What are the requisites for admission to
the bar? [ C A R G S ]
ANS: Every applicant for admission as a
member of the bar must be a citizen of the
Philippines, at least twenty-one years of age, of
good moral character, and a resident of the
Philippines; and must produce before the
Supreme Court satisfactory evidence of good
moral character; and that no charges against
him, involving moral turpitude, have been filed
or are pending in any court in the Philippines
[Sec. 2, Rule 138].
Q: May a Filipino citizen who graduated
from a foreign law school be admitted to the
bar examination?
ANS: Yes. A Filipino citizen who graduated
from a foreign law school be admitted to the bar
examination only upon submission to the
Supreme Court of certifications showing: [ C R 4 ]
1. Completion of all courses leading to the
degree of Bachelor of Laws or its
equivalent degree;
2. Recognition or accreditation of the law
school by the proper authority; and
3. Completion of all the fourth year subjects in
the Bachelor of Laws academic program in
a law school duly recognized by the
Philippine Government [Rule 138, Sec. 5]
Q: Is the act of signing in the Roll of
Attorney an indispensable requirement for
the practice of law?
ANS: Yes. A bar passer who failed to sign the
Roll of Attorneys is not a full-fledged member
of the Philippine Bar, as it was the act of signing
that would make him so. When, in spite of his
knowledge, he chose to continue practicing law
without taking the necessary steps to complete
all the requirements for admission to the Bar,
he willfully engaged in the unauthorized
practice of law [In Re: Petition to Sign in the
Page 101 of 128
LEGAL AND JUDICIAL ETHICS
Roll of Attorneys. Michael A. Medado, B.M. No.
2540, September 24, 2013].
A. Continuing requirements for
membership in the bar
Q: What are the continuing requirements for
the practice of law?
ANS: The following are the continuing
requirements for the practice of law: [ T M D S R G C ]
1. Payment of Professional Tax;
2. Membership in the IBP;
3. Payment of IBP dues;
4. Good and regular Standing;
5. Compliance with the Mandatory Continuing
Legal Education (MCLE) Requirements;
6. Possession of Good moral character; and
7. Compliance with the Citizenship
Requirement.
Q: What is Good Moral Character?
ANS: Good moral character is what a person
really is, as distinguished from good reputation,
the estimate in which he is held by the public in
the place where he is known. Moral character
is not a subjective term but one which
corresponds to objective reality. Good moral
character includes at least common honesty [In
the Matter of the Disqualification of Bar
Examinee Haron S. Meling In The 2002 Bar
Examinations and For Disciplinary Action As
Member of The Philippine Shari’a Bar, B.M. No.
1154 (2004)].
Q: What is the nature of Good Moral
Character as a requirement to practice law?
ANS: Good moral character is a continuing
requirement. It is a requirement possession of
which must be demonstrated not only at the
time of application for permission to take the
bar examinations but also, and more
importantly, at the time of application for
admission to the bar and to take the attorney's
oath of office [In The Matter of The Admission
to the Bar and Oath-Taking Of Successful Bar
Applicant Al C. Argosino, B.M. No. 712
(Resolution), July 13, 1995].
UP LAW BOC PRE-WEEK
Q: What is the scope of inquiry into the
good moral character of a lawyer in a
disbarment proceeding?
ANS: All aspects of moral character and
behavior may be inquired into in respect of
those seeking admission to the Bar. The scope
of such inquiry is, indeed, said to be properly
broader than inquiry into the moral proceedings
for disbarment. The requirement of good moral
character to be satisfied by those who would
seek admission to the bar must of necessity be
more stringent than the norm of conduct
expected from members of the general public.
[In The Matter of The Admission to the Bar and
Oath-Taking Of Successful Bar Applicant Al C.
Argosino, B.M. No. 712 (Resolution), July 13,
1995].
Q: What is the nature of Filipino Citizenship
as a requirement to practice law?
ANS: Filipino citizenship is a continuing
requirement for the practice of law. The loss
thereof means termination of the petitioner’s
membership in the bar; ipso jure the privilege
to engage in the practice of law [In re: Petition
to re-acquire the privilege to practice law in the
Philippines of Muneses, B.M. No. 2112 (2012)].
Q: Does a Filipino lawyer who becomes a
citizen of another country and later re-
acquires his Philippine citizenship remain
to be a lawyer?
ANS: Yes. A Filipino lawyer who becomes a
citizen of another country and later re-acquires
his Philippine citizenship under R.A. No. 9225,
remains to be a member of the Philippine Bar.
However, the right to resume the practice of
law is not automatic. R.A. No. 9225 provides
that a person who intends to practice his
profession in the Philippines must apply with
the proper authority for a license or permit to
engage in such practice [In re: Petition to re-
acquire the privilege to practice law in the
Philippines of Muneses, B.M. No. 2112 (2012)].
Q: Before a lawyer who reacquires Filipino
citizenship pursuant to R.A. No. 9225 can
resume his law practice, what must he/she
first secure from the Supreme Court?
ANS: Before a lawyer who reacquires Filipino
citizenship pursuant to R.A. No. 9225 can
resume his law practice, he must first secure
Page 102 of 128
LEGAL AND JUDICIAL ETHICS
from this Court the authority to do so,
conditioned on: [DT36O]
1. The updating and payment in full of the
annual membership dues in the IBP;
2. The payment of professional tax;
3. The completion of at least 36 credit hours
of mandatory continuing legal education;
this is especially significant to refresh the
applicant/petitioner’s knowledge of
Philippine laws and update him of legal
developments; and
4. The retaking of the lawyer’s oath which will
not only remind him of his duties and
responsibilities as a lawyer and as an
officer of the Court, but also renew his
pledge to maintain allegiance to the
Republic of the Philippines.
II. Code of Professional
Responsibility (including
Lawyer’s Oath)
Q: The Lawyer’s Oath is a source of
obligation and its violation is a ground for
suspension, disbarment, or other
disciplinary action. State in substance the
Lawyer’s Oath.
ANS: I, ____________________ do solemnly
swear that I will maintain allegiance to the
Republic of the Philippines; I will support the
Constitution and obey the laws as well as the
legal orders of the duly constituted authorities
therein; I will do no falsehood, nor consent to
the doing of any in court; I will not wittingly or
willingly promote or sue any groundless, false
or unlawful suit, nor give aid nor consent to the
same. I will delay no man for money or malice,
and will conduct myself as a lawyer according
to the best of my knowledge and discretion with
all good fidelity as well as to courts as to my
clients; and I impose upon myself this voluntary
obligation without any mental reservation or
purpose of evasion. So help me God.
UP LAW BOC PRE-WEEK
A. Duties and Responsibilities of a
Lawyer
1. Society (Canons 1-6)
Q: What constitutes unlawful conduct?
ANS: An unlawful conduct is an act or omission
which is against the law. It is a transgression of
any provision of law, which need not be penal.
[Re: Report on the Financial Audit Conducted
on the Books of Accounts of Atty. Kho, A.M, P-
06-2177 (2007)]
Q: What constitutes dishonesty?
ANS: Dishonesty involves lying or cheating. It
is a disposition to cheat, deceive, defraud.
[Agpalo (2004)]
Q: What is the difference between immoral
conduct and gross immoral conduct?
ANS: Immoral conduct has been defined as
that conduct which is willful, flagrant, or
shameless, and which shows a moral
indifference to the opinion of the good and
respectable members of the community. For
such conduct to warrant disciplinary action, the
same must be "grossly immoral," that is, it must
be so corrupt and false as to constitute a
criminal act or so unprincipled as to be
reprehensible to a high degree. [Ui v. Bonifacio,
A.M. No. 3319 (2000)].
Q: What crimes include moral turpitude?
ANS: Moral turpitude includes everything
which is done contrary to justice, honesty,
modesty, or good morals. It involves an act of
baseness, vileness, or depravity in the private
duties which a man owed his fellowmen, or to
society in general [Barrios v. Martinez, A.C. No.
No. 4585 (2004)]. Murder, estafa, rape,
violation of Batas Pambansa Blg. 22 (Bouncing
Checks Law), bribery, bigamy, adultery,
seduction, abduction, concubinage and
smuggling, falsification of a public document,
are considered crimes involving moral
turpitude [Zari v. Flores, A.M. No. (2170-MC) P-
1356, (1979)].
Q: What is “Barratry”?
ANS: The offense of inciting or stirring up
quarrels, litigation or groundless lawsuits,
either at law or otherwise [Bouvier].
Page 103 of 128
LEGAL AND JUDICIAL ETHICS
Q: What is “Maintenance”?
ANS: Maintenance is the wanton and in
officious intermeddling in the disputes of others
in which the intermeddler has no interest
whatever, and where the assistance rendered
is without justification or excuse [Sps.
Cadavedo v. Lacaya, G.R. No. 173188 (2014)]
Q: What is “Ambulance Chasing”?
ANS: Ambulance-chasing is the unethical
practice of inducing personal injury victims to
bring suits. The practice of lawyers in
frequenting hospitals and homes of the injured
to convince them to go to court [Lex Pareto
(2014)]
Q: Does a well-known lawyer who has been
engaged to run a program in which he
encourages indigent party litigants to
consult him free of charge about their legal
problems over a radio and television
network, violate any ethical rules?
ANS: YES, as it involves indirect advertising
and solicitation and is likewise violative of the
confidentiality of lawyer-client relationship. His
act may also be considered as a form of self-
praise hence subject to discipline [In re:
Tagorda, G.R. No. 32329, (1929), cited in Lex
Pareto (2014); Linsangan v. Tolentino, A.C.
No. 6672 (2009)]
Q: What are allowable advertisements that
can a lawyer do?
ANS:
1. Ordinary simple professional card;
2. Publication in reputable law list with brief
biographical and other informative data
which may include: a. Name; b. Associates;
c. Address; d. Phone numbers; e.
Branches of law practiced; f. Birthday; g.
Day admitted to the bar; h. Schools and
dates attended; i. Degrees and distinctions;
j. Public or quasi-public offices; k. Posts of
honor; l. Legal authorships; m. Teaching
positions; n. Associations; o. Legal
fraternities and societies; p. References
and regularly represented clients must be
published for that purpose [Ulep v. The
Legal Clinic, Inc., supra].
3. Publication of simple announcement of
opening of law firm, change of firm;
4. Listing in telephone directory but not under
designation of special branch of law;
UP LAW BOC
5. If acting as an associate (specializing in a
branch of law), may publish a brief and
dignified announcement to lawyers (law
list, law journal);
6. If in media, those acts incidental to his
practice and not of his own initiative;
7. Writing legal articles;
8. Activity of an association for the purpose of
legal representation [Agpalo (2004)]
Q: Can a lawyer who holds a government
office be disciplined as a member of the Bar
for misconduct in the discharge of his
duties as a government official?
ANS: Generally speaking, a lawyer who holds
a government office may not be disciplined as
a member of the Bar for misconduct in the
discharge of his duties as a government official.
However, if said misconduct as a government
official also constitutes a violation of his oath as
a lawyer, then he may be disciplined by this
Court as a member of the Bar… A member of
the Bar who assumes public office does not
shed his professional obligations. Hence, the
CPR… was not meant to govern the conduct of
private practitioners alone, but all lawyers
including those in government service. This is
clear from Canon 6 of said Code. Lawyers in
government are public servants who owe the
utmost fidelity to the public service. Thus, they
should be more sensitive in the performance of
their professional obligations, as their conduct
is subject to the ever constant scrutiny of the
public [Vitriolo v. Dasig, A.C. No. 4984 (2003)]
Rule 6.01. The primary duty of a lawyer
engaged in public prosecution is not to
convict but to see that justice is done. The
suppression of facts or the concealment of
witnesses capable of establishing the
innocence of the accused is highly
reprehensible and is cause for disciplinary
action.
Rule 6.02. A lawyer in the government
service shall not use his public position to
promote or advance his private interests, nor
allow the latter to interfere with his public
duties.
Rule 6.03. A lawyer shall not, after leaving
government service, accept engagement or
employment in connection with any matter in
Page 104 of 128
PRE-WEEK LEGAL AND JUDICIAL ETHICS
which he had intervened while in said
service.*
*See previous discussion on public officers
engaged in the practice of law.
2. The Legal Profession (Canons 7-
9)
Q: What is the effect of default in the
payment of annual IBP dues for 6 months?
ANS: Default in the payment of annual dues for
6 months shall warrant suspension of
membership in the IBP, and default in such
payment for 1 year shall be a ground for the
removal of the name of the delinquent member
from the Roll of Attorneys [Sec. 10, Rule 139-
A].
Q: Is a Filipino lawyer staying abroad
exempted from payment of membership
dues?
ANS: In a case involving a Filipino lawyer
staying abroad, the Supreme Court said that
there is nothing in the law or rules, which allows
his exemption from payment of membership
dues. At most, he could have informed the
Secretary of the IBP of his intention to stay
abroad before he left. In such case, his
membership in the IBP could have been
terminated and his obligation to pay dues
discontinued [Letter of Atty. Arevalo, B.M. No.
1370 (2005)].
Q: What if the applicant concealed is a
crime which does not involve moral
turpitude should he be admitted to the bar?
ANS: No. If what the applicant concealed is a
crime which does not involve moral turpitude, it
is the fact of concealment and not the
commission of the crime itself that makes him
morally unfit to become a lawyer. It should be
noted that the application was made under
oath, which he lightly took when he made the
concealment [In re: Petition to Take the
Lawyer’s Oath, Caesar Z. Distrito, petitioner,
supra].
Q: What are acts which a lawyer must not
do in relation to Canon 8?
ANS: Lawyers should not: [DIS IS MINT]
UP LAW BOC PRE-WEEK
1. Take advantage of the excusable
unpreparedness or absence of counsel
during the trial of a case;
2. Make use, to his or to his client’s benefit,
the secrets of the adverse party acquired
through design or inadvertence;
3. Criticize or impute ill motive to the lawyer
who accepts what in his opinion is a weak
case;
4. Proceed to negotiate with the client of
another lawyer to waive all kinds of claims
when the latter is still handling the civil case
[Camacho v. Pangulayan, A.C. No. 4807
(2000)];
5. Steal another lawyer’s client;
6. Induce a client to retain him by promise of
better service, good result or reduced fees
for his services;
7. Disparage another lawyer, make
comparisons or publicize his talent as a
means to further his law practice;
8. In the absence of the adverse party’s
counsel, interview the adverse party and
question him as to the facts of the case
even if the adverse party was willing;
9. Sanction the attempt of his client to settle a
litigated matter with the adverse party
without the consent or knowledge of the
latter’s counsel.
3. The Courts (Canons 10-13)
Q: If there is a conflict between a lawyer’s
duty to his client and that to the court,
which should he favor?
ANS: The Court. A lawyer is, first and foremost,
an officer of the court. Accordingly, should
there be a conflict between his duty to his client
and that to the court, he should resolve the
conflict against the former and in favor of the
latter, his primary responsibility being to uphold
the cause of justice [Cobb Perez v. Lantin, G.R.
No. L- 22320 (1968)].
Q: What offense does a lawyer commit
when he/she submits a pleading containing
derogatory, offensive and malicious
statements?
ANS: If a pleading containing derogatory,
offensive and malicious statements is
submitted in the same court or judge in which
the proceedings are pending, it is direct
contempt, equivalent to a misbehavior
Page 105 of 128
LEGAL AND JUDICIAL ETHICS
committed in the presence of or so near a court
or judge as to interrupt the administration of
justice. Direct contempt is punishable
summarily [In re: Letter of Atty. Sorreda, A.M.
No. 5-3-04 (2006)]
Q: What is the penalty for a lawyer who
comes into court not in proper attire?
ANS: A lawyer who dresses improperly may be
cited with contempt [Agpalo (2004)].
Q: When does forum shopping exist?
ANS: Forum shopping exists when the
elements of litis pendentia are present, or
where a final judgment in one case will amount
to res judicata in the other. More particularly,
the elements of forum shopping are: (a) identity [PRJ]
of parties or at least such parties as represent
the same interests in both actions; (b) identity
of the rights asserted and the reliefs prayed for,
the relief being founded on the same facts; and
(c) the identity of the two preceding particulars,
such that any judgment rendered in the other
action will, regardless of which party is
successful, amount to res judicata in the action
under consideration [Collantes v. CA, G.R. No.
169604 (2007)]
Q: What are the penalties in case of
violation of the requirement on certification
against non-forum shopping?
ANS: Submission of a false certification or
non-compliance with any of the undertakings in
a certification of non-forum shopping shall
constitute indirect contempt of court, without
prejudice to the corresponding administrative
and criminal actions. If acts of the party or his
counsel constitute willful and deliberate forum [ S D A ]
shopping: 1. Be a ground for summary
dismissal with prejudice; 2. Constitute direct
contempt; 3. Be a cause for administrative
sanctions [Agpalo (2004)].
Q: What must a lawyer do when he is
convinced of the futility of an appeal in a
civil suit?
ANS: If a lawyer is honestly convinced of the
futility of an appeal in a civil suit, he should not
hesitate to inform his client that mostly likely the
verdict will not be altered. A lawyer should
temper his client’s desire to seek appellate
review [Agpalo (2004)].
UP LAW BOC PRE-WEEK
Q: What is subornation of perjury?
ANS: Subornation of perjury is committed by a
person who knowingly and willfully procures
another to swear falsely and the witness
suborned [or induced] does testify under
circumstances rendering him guilty of perjury
[US v. Ballena, G.R. No. L-6294 (1911)]
4. The Clients (Canons 14-22)
Q: Who is an indigent?
ANS:
1. A person who has no visible means of
income or whose income is insufficient for
the subsistence of his family, to be
determined by the fiscal or judge, taking
into account the members of his family
dependent upon him for subsistence [Sec.
2, R.A. 6033 (An Act Requiring Courts to
Give Preference to Criminal Cases Where
the Party or Parties Involved are Indigents)]
2. A person who has no visible means of
support or whose income does not exceed
P300.00 per month or whose income even
in excess of P300.00 per month is
insufficient for the subsistence of his family
[Sec. 2, R.A. No. 6035 (An Act Requiring
Stenographers to Give Free Transcript of
Notes to Indigent and Low Income Litigants
and Providing a Penalty for the Violation
Thereof)].
Q: Who is a counsel de officio?
ANS: One appointed or assigned by the court.
A court may assign an attorney to render
professional aid free of charge to any party in a
case, if upon investigation it appears that the
party is destitute and unable to employ an
attorney, and that the services of counsel are
necessary to secure the ends of justice and to
protect the rights of the party. It shall be the
duty of the attorney so assigned to render the
required service, unless he is excused
therefrom by the court for sufficient cause
shown [Sec. 31, Rule 138].
Q: Who is a counsel de parte?
ANS: One employed or retained by the party
himself.
Q: Who is an amicus curiae?
ANS: A friend of the court; a person with strong
interest in or views on the subject matter of an
Page 106 of 128
LEGAL AND JUDICIAL ETHICS
action, but not a party to the action. They
commonly file briefs concerning matters of
broad public interest.
a. Confidentiality Rule
Q: What is a confidential communication?
ANS: Information transmitted by voluntary act
of disclosure between attorney and client in
confidence and by means which so far as the
client is aware, discloses the information to no
third person other than one reasonably
necessary for the transmission of the
information or the accomplishment of the
purpose for which it was given [Mercado v.
Vitriolo, A.C. No. 5108 (2005)]
b. Privileged Communications
Q: What are the requisites for the rule on
privileged communication between an
attorney and his client to apply?
ANS: The following are the requisites for the
rule on privileged communication: [ G R C I ]
1. The person to whom information is given is
a lawyer.
a. However, if a person is pretending to
be a lawyer and client discloses
confidential communications, the
attorney-client privilege applies;
b. This includes persons appointed as
counsel de officio [Agpalo, (2004)].
2. There is a legal relationship existing,
except in cases of prospective clients;
3. Legal advice must be sought from the
attorney in his professional capacity with
respect to communications relating to that
purpose. 4. The client must intend that the
communication be confidential [Mercado v.
Vitriolo, A.C. No. 5108 (2005)]
Q: Who are persons entitled to this
privilege?
ANS: Persons entitled to this privilege:
1. The lawyer, client, and third persons who
by reason of their work have acquired
information about the case being handled,
including: [ S T H ]
a. Attorney’s secretary, stenographer and
clerk;
b. Interpreter, messengers, or agents
transmitting communication;
UP LAW BOC PRE-WEEK
c. Accountant, scientist, physician, or
engineer who has been hired for
effective consultation.
2. Assignee of the client’s interest as far as
the communication affects the realization of
the assigned interest [Rule 130, Sec. 24(b),
RoC]
Q: What is the period to be considered in
determining whether the privileged
communication rule applies?
ANS: Period to be considered is the date when
the privileged communication was made by the
client to the attorney in relation to either a crime
committed in the past, or with respect to a
crime intended to be committed in the future. If
the crime was committed in the past, the
privilege applies. If it is still to be committed, the
privilege does not apply because the
communication between a lawyer and his client
must be for a lawful purpose or in furtherance
of a lawful end to be privileged [People v.
Sandiganbayan, G.R. No. 115439 (1996)]
Q: What communication is considered
privileged?
ANS: Limited only to communications which
are legitimately and properly within the scope
of a lawful employment of a lawyer. It does not
extend to those made in contemplation of a
crime or perpetration of a fraud. It is not within
the profession of a lawyer to advise a client as
to how he may commit a crime [Genato v.
Silapan, A.C. No. 4078 (2003)].
Q: May the identity of a client be revealed?
ANS: Yes. As a matter of public policy, a
client’s identity should not be shrouded in
mystery. Thus, a lawyer may not invoke the
privilege and refuse to divulge the name or
identity of this client [Regala v. Sandiganbayan,
supra]. However, client identity is privileged in
the following instances: [ I O L ]
1. Where a strong probability exists that
revealing the client's name would implicate
that client in the very activity for which he
sought the lawyer's advice [Regala v.
Sandiganbayan, supra];
2. Where disclosure would open the client to
civil liability [Agpalo, (2004)]; or
3. Where the government's lawyers have no
case against an attorney's client unless, by
revealing the client’s name, the said name
Page 107 of 128
LEGAL AND JUDICIAL ETHICS
would furnish the only link that would form
the chain of testimony necessary to convict
an individual of a crime [Regala v.
Sandiganbayan, G.R. No. 105938 (1996)].
Q: Does the protection given to the client
cease upon termination of the litigation?
ANS: The general rule is that the protection
given to the client is perpetual and does not
cease with the termination of the litigation, nor
is it affected by the client’s ceasing to employ
the attorney and retaining another, or by any
other change of relation between them. It even
survives the death of the client [Bun Siong Yao
v. Aurelio, A.C. No. 7023 (2006)].
c. Conflict of Interest
Q: When is there a conflict of interest?
ANS: There is conflict of interest when a lawyer
represents inconsistent interests of two or more
opposing parties [Hornilla v. Salunat, A.C. No.
5804 (2003)].
Q: What are the tests to determine whether
conflicting interests exist?
ANS:
1. Whether the acceptance of a new relation
will prevent an attorney from the full
discharge of his duty of undivided fidelity
and loyalty to his client or invite suspicion
of unfaithfulness or double dealing in its
performance.
2. If the acceptance of the new retainer will
require the attorney to perform an act which
will injuriously affect his first client in any
matter in which he represented him and
also whether he will be called upon in his
new relation to use against the first client
any knowledge acquired through their
connection.
3. Whether or not on behalf of one client, it is
the lawyer’s duty to fight for an issue or
claim, but it is his duty to oppose it for the
other client [Hornilla v. Salunat, supra].
4. Whether the lawyer will be asked to use
against his former client any confidential
information acquired through their
connection or previous employment [Palm
v. Iledan, Jr., A.C. No. 8242 (2009)]
UP LAW BOC PRE-WEEK
Q: Can a lawyer represent conflicting
interest?
ANS: Generally, a lawyer shall not represent
conflicting interests. However, representation
of conflicting interests is allowed where clients
knowingly consent to the dual representation
[Hilado v. David, G.R. No. L-961 (1949)]. An
exception to this exception is when the lawyer
brings suit on his own behalf, against the
defendant if it is uncertain whether the
defendant will be able to satisfy both
judgments. A lawyer is not authorized to have
financial stakes in the subject matter of the suit
brought in behalf of his client [Gamilla v. Marino
Jr, AC No. 4763, (2003)]
d. Candid and Honest Advice to
Clients
Rule 15.05. A lawyer when advising his
client shall give a candid and honest opinion
on the merits and probable results of the
client’s case, neither overstating nor
understating the prospects of the case.
e. Prohibition against Influence
Peddling
Q: What is influence peddling?
ANS: It is any agreement entered into because
of the actual or supposed influence
administrative or executive officers in the
discharge of their duties, which contemplates
the use of personal influence and personal
solicitation rather than any appeal to the
judgment of the officer on the merits of the
object sought [International Harvester
Macleod, Inc. v. CA, G.R. No. L-44346 (1979)]
f. Compliance with Laws
Rule 15.07. A lawyer shall impress upon his
client compliance with the laws and
principles of fairness
g. Concurrent Practice with
Another Profession
Q: Is the exercise of a dual profession by a
lawyer prohibited?
ANS: Exercise of dual profession is not
prohibited but a lawyer must make it clear when
he is acting as a lawyer or when he is acting in
Page 108 of 128
LEGAL AND JUDICIAL ETHICS
another capacity, especially in occupations
related to the practice of law [In re: Rothman,
12 N.J. 528 (1953)].
Q: Can a lawyer acquire or purchase
property and rights which may be the object
of any litigation in which they take part?
ANS: Lawyers cannot acquire or purchase,
even at a public or judicial auction, either in
person or through the mediation of another, the
property and rights which may be the object of
any litigation in which they take part by virtue of
their profession [Art. 1491(5), Civil Code].
Q: Who are prohibited from purchasing
“property in litigation”?
ANS: The following persons cannot acquire by
purchase, even in a public action, either in
person or through the mediation of another,
property and rights in litigation, before the court
within whose jurisdiction, they exercise their
respective functions: [Art. 1491, Civil Code]:
1. Justices, Judges, Prosecuting Attorneys.
2. Clerks, officers and employees connected
with the administration of justice.
3. Lawyers with respect to property rights
which may be the object of litigation, in
which they may take part by virtue of their
profession
Q: What are the elements for Art. 1491(5) to
apply?
ANS: For the rule to apply the following
requisites must be present:
1. There is an attorney-client relationship;
2. The property or interest of the client is in
litigation;
3. The attorney takes part as counsel in the
case;
4. The attorney purchases or acquires the
property or right, by himself or through
another, during the pendency of litigation
[Laig v. CA, G.R. No. L-26882 (1978)]
Q: May the lawyer raise as defense his
attorney’s lien in order to relieve himself of
the duty to account for all the money and
property of his client?
ANS: No. The fact that a lawyer has a lien for
fees on money in his hands would not relieve
him from the duty of promptly accounting for
the funds received [Daroy v. Legaspi, A.C. No.
936 (1975)].
UP LAW BOC PRE-WEEK
Q: Can a lawyer retain funds, documents,
and papers which have lawfully come into
his possession?
ANS: An attorney has a lien upon the funds,
documents, and papers of his client which have
lawfully come into his possession and may
retain the same until his lawful fees and
disbursements have been paid and may apply
such funds to the satisfaction thereof [Sec. 37,
Rule 138, RoC]
Q: What is the standard of care required of
a lawyer?
ANS: A lawyer must exercise ordinary
diligence or that reasonable degree of care and
skill having reference to the character of the
business he undertakes to do, as any other
member of the bar similarly situated commonly
possesses and exercises [Pajarillo v. WCC,
G.R. No. L-42927 (1980)].
Q: Who is a collaborating counsel? What is
the degree of diligence required of him?
ANS: A collaborating counsel is a lawyer who
is subsequently engaged to assist another
lawyer already handling a particular case for a
client. He cannot just enter his appearance as
collaborating counsel without the conformity of
the first counsel [Pineda, (2009)]. The same
diligence of the first counsel is required of the
collaborating counsel [Sublay v. NLRC, G.R.
No. 130104 (2000)].
Q: Is presumption of negligence
applicable?
ANS: In the absence of evidence on the
contrary, however, a lawyer is presumed to be
prompt and diligent in the performance of his
obligations and to have employed his best
efforts, learning, and ability in the protection of
his client’s interests and in the discharge of his
duties as an officer of the court [Agpalo (2004)].
Q: Does the lawyer’s negligence bind the
client?
ANS: Generally, yes. A client is bound by the
attorney’s conduct, negligence and mistake in
handling the case or in management of
litigation and in procedural technique, and he
cannot be heard to complain that the result
might have been different had his lawyer
proceeded differently.
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LEGAL AND JUDICIAL ETHICS
However, the client is not so bound where the
ignorance, incompetence or inexperience of a
lawyer is so great and error so serious that the
client, who has good cause, is prejudiced and
denied a day in court [People v. Manzanilla,
G.R. No. L-17436 (1922); Alarcon v. CA, G.R.
No. 126802 (2000)].
Q: What is the doctrine of imputed
knowledge?
ANS: The doctrine of imputed knowledge
provides that notice to counsel is notice to
client.
Q: May a lawyer refuse to file an appeal or
move to dismiss an appeal if the client
wants to appeal?
ANS: No. An attorney may not impair,
compromise, settle, surrender, or destroy
rights without his client's consent. A lawyer has
no implied authority to waive his client’s right to
appeal or to withdraw a pending appeal [Abay
v. Montesino, A.C. No. 5718 (2003)]
Canon 20 Duty to Charge Fair and
Reasonable Fees
Canon 20. A lawyer shall charge only fair
and reasonable fees
Q: Will the absence of a formal contract
negate the payment of attorney’s fees?
ANS: The absence of a formal contract will not
negate the payment of attorney’s fees because
the contract may be express or implied. In the
absence of an express contract, payment of
attorney’s fees may be justified by virtue of the
innominate contract of facio ut des (I do and
you give) which is based on the principle that
“no one shall enrich himself at the expense of
another” [Corpus v. CA, G.R. No. L-40424
(1980)]
Q: What is a contingency contract?
ANS: A contingent contract is an agreement in
which the lawyer’s fee, usually a fixed
percentage of what may be recovered in the
action, is made to depend upon the success in
the effort to enforce or defend the client’s right.
The lawyer does not undertake to shoulder the
expenses of litigation [Cortez v. Atty. Cortes,
A.C. No. 9119 (2018)].
 UP LAW BOC PRE-WEEK
Q: Is a contingency fee arrangement valid?
ANS: A contingent fee arrangement is valid in
this jurisdiction and is generally recognized as
valid and binding but must be laid down in an
express contract. The amount of contingent fee
agreed upon by the parties is subject to the
stipulation that counsel will be paid for his legal
services only if the suit or litigation prospers
[Cortez v. Atty. Cortes, A.C. No. 9119 (2018)].
Q: When is a contingency fee arrangement
invalid?
ANS: When it is shown that a contract for a
contingent fee are obtained by undue influence
exercised by the attorney upon his client or by
any fraud or imposition, or that the
compensation is clearly excessive, the Court
must and will protect the aggrieved party
[Tanhueco v. de Dumo, A.M. No. 1437 (1989)].
Q: What is a champertous contract?
ANS: A champertous contract is one where the
lawyer stipulates with his client that he will bear
all the expenses for the prosecution of the
case, the recovery of things or property being
claimed, and the latter pays only upon
successful litigation [Nocom v. Camerino, G.R.
No. 182984 (2009)]. A champertous contract is
void for being against public policy.
Q: What is a retaining lien?
ANS: An attorney shall have a lien upon the
funds, documents and papers of his client
which have lawfully come into his possession.
Thus: (1) He may retain the same until his
lawful fees and disbursements have been paid;
(2) May apply such funds to the satisfaction
thereof. [Sec. 37, Rule 138, RoC]
Q: What are the requisites for a retaining
lien to be valid?
ANS: The following are the requisites for a
[ A L U ] valid retaining lien: (1) Attorney-client
relationship; (2) Lawful possession by lawyer of
the client’s funds, documents and papers in his
professional capacity; and (3) Unsatisfied claim
for attorney’s fees or disbursements [Agpalo,
(2004)].
Q: What is a charging lien?
ANS: He shall also have a lien to the same
extent upon all judgments for the payment of
money, and executions issued in pursuance of
Page 110 of 128
LEGAL AND JUDICIAL ETHICS
such judgments, which he has secured in a
litigation of his client. This lien exists from and
after the time when he shall have caused: (1) A
statement of his claim of such lien to be entered
upon the records of the court rendering such
judgment, or issuing such execution; and (2)
Written notice thereof to be delivered to his
client and to the adverse party.
Q: What are the requisites for a charging
lien to be valid?
ANS: The following are the requisites for a
valid charging lien: (1) Attorney-client [ A S F C ]
relationship; (2) The attorney has rendered
services; (3) A money judgment favorable to
the client has been secured in the action; and
the attorney has a claim for attorney’s fees or
advances statement of his claim has been
recorded in the case with notice served upon
the client and adverse party.
Q: What is the difference between the
ordinary concept and extraordinary
concept of Attorney’s Fees?
ANS: In the ordinary concept, an attorney’s fee
is the reasonable compensation paid to a
lawyer for the legal services he has rendered
to a client. Its basis of this compensation is the
fact of employment by the client [Dalupan v.
Gacott, A.C. No. 5067 (2015)]. In the
extraordinary concept, an attorney’s fee is an
indemnity for damages ordered by the court to
be paid by the losing party to the prevailing
party in litigation. The basis of this is any of the
cases authorized by law and is payable not to
the lawyer but to the client – unless they have
agreed that the award shall pertain to the
lawyer as additional compensation or as part
thereof [Traders Royal Bank Employees Union
Independent v. NLRC, G.R. No. 120592
(1997)].
Q: What is Quantum Meruit?
ANS: Quantum Meruit means “as much as a
lawyer deserves.”
Q: Does the client have the right to
discharge his/her attorney at any time with
or without just cause or even against his
consent?
ANS: Yes. The general rule is that the client
has the right to discharge his attorney at any
UP LAW BOC PRE-WEEK
time with or without just cause or even against
his consent. However subject to the following: [ P E N ]
1. The client cannot deprive his counsel of
right to be paid services if the dismissal is
without cause.
2. The client cannot discharge his counsel as
an excuse to secure repeated extensions
of time.
3. Notice of discharge is required for both the
court and the adverse party [Agpalo
(2004)].
Q: Does the withdrawal in writing, with the
consent of the client, require approval from
the court to be effective?
ANS: Generally, the withdrawal in writing, with
the client’s conformity, does not require the
approval of the court to be effective. However,
if no new counsel has entered his appearance,
the court may, in order to prevent a denial of a
party’s right to the assistance of counsel
require that the lawyer’s withdrawal be held in
abeyance until another lawyer shall have
appeared for the party [Villasis v. CA, G.R. No.
L-34369 (1974)].
B. Duties of Lawyers Under
Specific Provisions
1. Judgments, Final Orders, and
Entry of Judgments
Q: What is the duty of the clerk with regard
to judgments and final orders?
ANS: It is the duty of the clerk of court to enter
the judgment or final order in the book of
entries of judgments, if no appeal or motion for
new trial or reconsideration is filed within the
time provided in the Rules. The date of finality
shall be deemed to be the date of its entry. The
record shall contain the dispositive part of the
judgment or final order and shall be signed by
the clerk, within a certificate that such judgment
or final order has become final and executory
[Sec. 2, Rule 36, RoC].
Page 111 of 128
LEGAL AND JUDICIAL ETHICS
2. Contempt
See IV. Direct and Indirect Contempt below
3. Arraignment and Plea
Q: What is a counsel de oficio’s duty and
right with respect to arraignment and plea?
ANS: Rule 18.02 states that a lawyer shall not
handle any legal matter without adequate
preparation. Therefore, whenever a counsel de
oficio is appointed by the court to defend the
accused at the arraignment, he shall be given
a reasonable time to consult with the accused
as to his plea before proceeding with the
arraignment [Sec. 8, Rule 116, RoC].
The accused’s counsel may, before
arraignment, also move for a bill of particulars
to enable him properly to plead and prepare for
trial [Sec. 9, Rule 116, RoC].
4. Attorney-Client Privilege
See previous discussion in Privileged
Communication
5. Powers and Duties of Court and
Judicial Officers
Q: What are the duties of the court and its
judicial officers?
ANS: Justice shall be impartially administered
with unnecessary delay. Courts of justice shall
also always be open, with the exception of legal
holidays, for the filing of any pleading, motion
or other papers, for the trial of cases, hearing
of motions and for the issuance of orders or
rendition of judgments.
6. Disqualification of Judicial
Officers/Inhibition
7. Withdrawal from Case
See previous discussion under Canon 22
UP LAW BOC PRE-WEEK
8. Standing in Court of Persons
Authorized to Appear for the
Government
See previous discussion under Public officials
and Practice of Law
9. Government Lawyers and
Private Practice
See previous discussion under Public officials
and Practice of Law
10. Amicus Curiae
See previous discussion under Rule 14.02
JUDICIAL ETHICS
III. Disqualifications/Inhibitions
for Judges
Q: Enumerate the canons under the New
Code of Judicial Conduct for the Philippine
Judiciary
ANS: These are the qualities a judge must
possess.
Canon 1. Independence
Canon 2. Integrity
Canon 3. Impartiality
Canon 4. Propriety
Canon 5. Equality
Canon 6. Competence and Diligence [A.M. No.
03-05-01-SC]
Q: Enumerate and explain the two aspect of
judicial independence
ANS: The two aspects of judicial independence
are (1) individual judicial independence and (2)
institutional judicial independence. Individual
judicial independence focuses on each
individual judge and ensures their ability to
decide cases free from external influence, with
autonomy, and within the constraints of law.
Institutional judicial independence, on the other
hand, focuses on the independence of the
judiciary branch as a whole, and protects the
judges as a class [In Re: The Allegation
Contained in the Columns of Mr. Amado P.
Page 112 of 128
LEGAL AND JUDICIAL ETHICS
Macasaet Published in Malaya, AM No 07-09-
13-SC]
Q: What is meant by “integrity”?
ANS: It means that a judge shall ensure their
conduct is above reproach and also perceived
to be so in the eyes of a reasonable observer.
Integrity applies not only to the proper
discharge of the judicial office but also extends
to the personal demeanor of the judge. [Dela
Cruz v. Bersamira, A.M. No. RTJ-00-1567
(2000)]
Q: What is meant by “impartiality”?
ANS: It means that regardless of personal
misgivings at to a matter, the judge is duty-
bound to apply the law. The court of law is not
a place for a protracted debate on the morality
or propriety of a sentence. [People v.
Veneracion, G.R. Nos. 119987-88 (1995)]
Impartiality is essential to the proper discharge
of the judicial office and applies not only to the
decision itself but also to the process by which
the decision is made. [Canon 3, Code of
Judicial Conduct]
Q: What is meant by “propriety”?
ANS: Judges must accept the personal
restrictions that come with the office freely and
willingly. Particularly, judges shall conduct
themselves in a way consistent with the dignity
of their office [Sec. 2, Canon 4].
Q: How is “equality” practiced by the
judge?
ANS: Under Canon 5, judges shall:
a. Be aware of, and understand diversity in
society and differences arising from various
sources, including but not limited to race,
color, age, sex, religion, nationality, sexual
orientation, marital status, and socio-
economic status [Sec. 1];
b. Not manifest bias in the performance of
their judicial duties on irrelevant grounds
[Sec. 2];
c. Carry out duties and responsibilities with
appropriate consideration to all parties
without differentiation on irrelevant grounds
[Sec. 3];
d. Not knowingly permit staff under his
influence, direction, or control, to
UP LAW BOC PRE-WEEK
differentiate between persons concerned
on irrelevant grounds [Sec. 4];
e. Require lawyers in proceedings before
their courts, to refrain from manifesting bias
or prejudice based on irrelevant grounds
except those legally relevant to the issue
and are subject to legitimate advocacy
[Sec. 5].
Q: How is “competence and diligence”
performed by the judge?
ANS: Canon 6 provides:
a. That the judicial duties of a judge take
precedence over all other activities [Sec.
1];
b. That judges shall devote their professional
activity to judicial duties which include their
judicial functions but also other tasks
relevant to the court’s operations [Sec. 2];
c. That judges shall take the necessary steps
to maintain their knowledge, skills, and
personal qualities necessary for the proper
performance of their judicial duties [Sec. 3];
d. That judges shall keep themselves
informed about the relevant developments
of international law, and international
conventions regarding human rights norms
[Sec. 4];
Q: Compare disqualification and inhibition
ANS:
DISQUALIFICATION
it is conclusively presumed
that judges cannot actively
and impartially sit in the
instances mentioned under
Concept Sec. 1, Rule 137 of the
Rules of Court
Rules enumerate specific
and exclusive grounds
Grounds under which a judge or
judicial officer may be
disqualified from their role
Page 113 of 128
LEGAL AND JUDICIAL ETHICS
e. That judges shall perform their duties
efficiently, fairly, and with reasonable
promptness [Sec. 5];
f. That judges shall maintain order and
decorum in proceedings before the court
and be patient, dignified, and courteous to
litigants, witnesses, and lawyers with whom
they deal with in an official capacity.
Judges shall require similar conduct of
legal representatives, and court staff under
his influence, direction, and control [Sec.
6]; and
g. That judges shall not engage in conduct
incompatible with the diligent discharge of
their judicial duties [Sec. 7].
Q: A companion or employee of the judge
who lives in the judge’s household is
included in the definition of the "judge’s
family." (2009 Bar Question)
ANS: TRUE. A judge’s family as defined in the
New Code of Judicial Conduct for the
Philippine Judiciary “includes a judge’s spouse,
son daughter, son-in-lase, daughter-in-law,
and any other relative by consanguinity or
affinity within the sixth civil degree, or person
who is a companion or employee of the judge
and who lives in the judge’s household”
[Definitions, Code of Judicial Conduct].
INHIBITION LEGAL BASIS
judges are given exclusive Rule 137
prerogative to rescue
themselves from hearing In Re: Verified
cases for reasons other Complaint of Venusto
than those pertaining to D. Hamoy Jr., IPI No.
their pecuniary interest, 17-249-CA-J,
relation, previous September 15, 2017
connection, or previous
rulings or decisions
there are no specific Rule 137, Rules of
grounds, merely a broad Court
basis
UP LAW BOC PRE-WEEK
judicial officer has no judge may exercise their Rule 137,
Judicial
discretion to try or sit in a sound discretion, whether Court
Discretion
case to try the case or not
Q: A judge, in order to ease his clogged
docket, would exert efforts to compel the
accused in criminal cases to plead guilty to
a lesser offense and advise party litigants in
civil cases, whose positions appear weak,
to accept the compromise offered by the
opposing party. Is the practice legally
acceptable? (1998 Bar)
ANS: The practice is legally acceptable as long
as the judge does not exert pressure on the
parties and takes care that he does not appear
to have prejudged the case. Where a judge has
told a party that his case is weak before the
latter was fully heard, such was considered as
a ground for his disqualification [Castillo v.
Juan, 62 SCRA 124]
A. Disqualification of Judicial
Officers
1. Compulsory
Q: Enumerate instances wherein written
consent of all parties is needed before a
judge or judicial officer may sit in the case
ANS: No judge or judicial officer shall sit in any
case, without the written consent of all parties
in interest and entered upon the record, in
which:
a. He, or his wife or child, is pecuniarily
interested as heir, legatee, creditor or
otherwise; or
b. He is related to either party within the 6th
degree of consanguinity or affinity, or to
counsel within the 4th degree, computed
according to the rules of civil law;
c. He has been executor, administrator,
guardian, trustee or counsel; or
d. He has presided in any inferior court when
his ruling or decision is the subject of
review [par. 1, Sec. 1, Rule 137, Rules of
Court].
Page 114 of 128
LEGAL AND JUDICIAL ETHICS
Rules of
Q. What are the instances where the judges
should disqualify themselves due to
inability to act with impartiality?
ANS: Sec. 5, Canon 3 makes an enumeration
when judges should disqualify themselves. It
notes of the following instances where they are
unable to decide the matter impartially or which
may appear to a reasonable observer that they
are unable to act with impartiality. The cases
include:
a. The judge has actual bias or prejudice
concerning a party or personal knowledge
of the disputed evidentiary facts;
b. The judge previously served as a lawyer or
is a material witness on the matter;
c. The judge or a member of his family has a
material interest in the outcome of the
controversy;
d. The judge previously served as an
executor, administrator, guardian, trustee,
or lawyer, in the controversy;
e. The judge’s ruling in a lower court is the
subject of review;
f. The judge is related by consanguinity or
affinity to a party litigant within the sixth civil
degree or to counsel within the fourth civil
degree;
g. The judge knows that his or her spouse or
child has a financial interest as an heir,
legatee, creditor, fiduciary or otherwise in
the controversy, or has any other interest
that could substantially be affected by the
outcome of the proceedings.
Note: The enumeration in Sec. 5, Canon 3 is
not exclusive. The proviso states that such
instances may include but are not limited to the
enumeration in Section 5.
Q. What are the grounds for compulsory
inhibition of a judge?
ANS: The following are considered grounds for
a judge to inhibit themselves from a case:
a. actual bias or prejudice
b. economic interest of judge or their family
c. reviewing of own cases
d. previously served as counsel
UP LAW BOC PRE-WEEK
2. Voluntary
Note: A judge may, in the exercise of his sound
discretion, disqualify himself from sitting in a
case, for just or valid reasons other than those
mentioned [par. 2, Sec. 1].
IV. Direct and Indirect Contempt
Q: What is the difference between direct
and indirect contempt?
ANS:
The following acts constitute direct contempt:
1. Misbehavior in the presence of or so near
a court as to obstruct or interrupt the
proceedings before the same;
2. Disrespect toward the court;
3. Offensive personalities toward others;
4. Refusal to be sworn or to answer as a
witness; or
5. Refusal to subscribe an affidavit or
deposition when lawfully required to do so
[Sec. 1, Rule 71, RoC].
Meanwhile, the following acts constitute
indirect contempt:
1. Misbehavior of an officer of a court in the
performance of his official duties or in his
official transactions;
2. Disobedience of or resistance to a lawful
writ, process, order, or judgment of a court,
including the act of a person who, after
being dispossessed or ejected from any
real property by the judgment or process of
any court of competent jurisdiction, enters
or attempts or induces another to enter into
or upon such real property, for the purpose
of executing acts of ownership or
possession, or in any manner disturbs the
possession given to the person adjudged to
be entitled thereto;
3. Any abuse of or any unlawful interference
with the processes or proceedings of a
court not constituting direct contempt under
section 1 of this Rule;
4. Any improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade
the administration of justice;
5. Assuming to be an attorney or an officer of
a court, and acting as such without
authority;
6. Failure to obey a subpoena duly served;
Page 115 of 128
LEGAL AND JUDICIAL ETHICS
7. The rescue, or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process of a
court held by him [Sec. 3, Rule 71, RoC].
Direct contempt may be summarily adjudged
by such court, while indirect contempt is
adjudged after a charge in writing has been
filed, and an opportunity has been given to the
respondent to comment thereon within such
period as may be fixed by the court and to be
heard by himself or counsel.
PRACTICAL EXERCISES
Notes on Pleadings:
1. Rule 7, Sec. 3 of the Rules of Court
reiterates the importance of the signature
of counsel, and an unsigned pleading
produces no legal effect.
2. The En Banc Resolution on Bar Matter No.
1132 (2003) requires counsels to indicate
the ff. in all papers and pleadings submitted
to the various judicial or quasi-judicial
bodies:
a. Roll of Attorneys No.
b. IBP Official Receipt No. OR Lifetime
Membership No.
c. Current Professional Tax Receipt
(PTR) No.
3. A.M. NO. 07-6-5-SC (2007) requires
counsels to indicate in their pleadings or
other legal documents their contact details
aside from addresses such as telephone
number, fax number, cellular phone
number, or email address.
4. Bar Matter No. 1922 (2008) requires
practicing members of the bar to indicate in
all pleadings filed before the courts or
quasi-judicial bodies, the number and date
of issue of their MCLE Certificate of
Compliance or Certificate of Exemption, as
may be applicable, for the immediately
preceding compliance period.
Note on Motions: Rule 15 (Motions), RoC state
the requirements of a notice of hearing:
1. Every written motion required to be heard
and the notice of the hearing thereof shall
be served in such a manner as to ensure
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its receipt by the other party at least three
(3) days before the date of hearing, unless
the court for good cause sets the hearing
on shorter notice. [Sec. 4]
2. The notice of hearing shall be addressed to
all parties concerned, and shall specify the
time and date of the hearing which must not
be later than ten (10) days after the filing of
the motion. [Sec. 5]

I. MOTIONS FOR EXTENSION OF TIME, TO DISMISS, AND TO

DECLARE IN DEFAULT

A. Motion for Extension of Time

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
NATIONAL CAPITAL REGION
BRANCH [#], [VENUE]

[PLAINTIFF] Civil Case No.: 123984

Plaintiff,
-versus- For: [NATURE OF ACTION]

[DEFENDANT],
Defendant.
x-------------------------------------------------------------------x.

MOTION FOR EXTENSION OF TIME

COMES NOW the Defendant by his undersigned counsel, and to this Honorable Court
respectfully states that:
1. Defendant engaged the services of undersigned counsel only on [DATE];
2. Defendant was served with Summons and copy of the Complaint on [DATE] and
thus has until [DATE] within which to submit an [ANSWER OR OTHER
RESPONSIVE PLEADING];
3. However, due to the pressured of equally urgent professional work and prior
commitments, the undersigned counsel will not be able to meet the said deadline;
4. As such, the undersigned counsel is constrained to request for an additional period
of [NUMBER OF DAYS] from [DATE TODAY] or until [DATE OF END OF
EXTENSION] within which to submit Defendant’s [ANSWER OR OTHER
RESPONSIVE PLEADING]. Moreover, this additional time will also allow the
undersigned to interview the available witness and study this case further;
5. This motion is not intended for delay but solely due to the foregoing reasons.

PRAYER

WHEREFORE, Defendant most respectfully prays of this Honorable Court that he be given
an additional period of [NUMBER OF DAYS] from [DATE TODAY] or until [DATE OF END OF
EXTENSION] within which to submit an [ANSWER OR OTHER RESPONSIVE PLEADING].
Other just and equitable reliefs prayed for.
[VENUE], [DATE].

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[NAME OF COUNSEL]
Attorney for Defendant
[ADDRESS]
Roll No. [1234]
PTR No. [1234] / [Place] / [Date]
IBP No. [[1234] / [Place] / [Date]
MCLE Compliance No. [1234]

NOTICE OF HEARING
The undersigned will submit the foregoing Motion for Extension of Time for the consideration
and approval of the Honorable Court on [DATE] at [TIME].

COPIES FURNISHED
[NAME OF COUNSEL]
Attorney for Plaintiff
[ADDRESS]

[BRANCH CLERK OF COURT]

Regional Trial Court of [VENUE]
Branch [NUMBER]
EXPLANATION
This motion will be served on Plaintiff’s counsel by registered mail due to lack of time and
distance between his office and the office of the undersigned.

B. Motion to Dismiss

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
NATIONAL CAPITAL REGION
BRANCH [#], [VENUE]

[PLAINTIFF] Civil Case No.: 123984

Plaintiff,
-versus- For: [NATURE OF ACTION]

[DEFENDANT],
Defendant.
x-------------------------------------------------------------------x.

MOTION TO DISMISS

COMES NOW the defendant by his undersigned counsel, and to this Honorable Court
respectfully moves that the complaint be dismissed on the following grounds:

[GROUNDS]

Discussion

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[ARGUMENTS]

PRAYER

WHEREFORE, it is respectfully prayed that the complaint be dismissed.

[VENUE], [DATE].

[NAME OF COUNSEL]
Attorney for Defendant
[ADDRESS]
Roll No. [1234]
PTR No. [1234] / [Place] / [Date]
IBP No. [[1234] / [Place] / [Date]
MCLE Compliance No. [1234]

NOTICE OF HEARING
The undersigned will submit the foregoing Motion to Dismiss for the consideration and
approval of the Honorable Court on [DATE] at [TIME].

COPIES FURNISHED
[NAME OF COUNSEL]
Attorney for Plaintiff
[ADDRESS]

[BRANCH CLERK OF COURT]

Regional Trial Court of [VENUE]
Branch [NUMBER]

EXPLANATION
This motion will be served on Plaintiff’s counsel by registered mail due to lack of time and
distance between his office and the office of the undersigned.

C. Motion to Declare in Default

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
NATIONAL CAPITAL REGION
BRANCH [#], [VENUE]

[PLAINTIFF] Civil Case No.: 123984

Plaintiff,
-versus- For: [NATURE OF ACTION]

[DEFENDANT],
Defendant.

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x-------------------------------------------------------------------x.

MOTION TO DECLARE DEFENDANT IN DEFAULT

COMES NOW the Plaintiff by his undersigned counsel and to this Honorable Court
respectfully moves that the Defendant be declared in default. Plaintiff respectfully states that:
1. The records of the Honorable Court show that the Defendant was served with copy
of the summons and of the complaint, together with annexes thereto on [DATE];
2. Upon verification however, the records show that Defendant [NAME] has failed to
file his Answer within the reglementary period specified by the Rules of Court
despite the service of the summons and the complaint;

PRAYER

WHEREFORE, it is respectfully prayed that the Defendant [NAME] be declared in default

pursuant to the Rules of Court and that the Honorable Court proceed to render judgment as the
complaint may warrant.
Other just and equitable reliefs prayed for.

[VENUE], [DATE].

[DETAILS OF COUNSEL]
Attorney for Plaintiff
[ADDRESS]
Roll No. [1234]
PTR No. [1234] / [Place] / [Date]
IBP No. [[1234] / [Place] / [Date]
MCLE Compliance No. [1234]

NOTICE OF HEARING
The undersigned will submit the foregoing Motion to Declare in Default for the consideration
and approval of the Honorable Court on [DATE] at [TIME].

COPIES FURNISHED
[DETAILS OF COUNSEL]
Attorney for Defendant
[ADDRESS]

[BRANCH CLERK OF COURT]

Regional Trial Court of [VENUE]
Branch [NUMBER]

EXPLANATION
This motion will be served on Defendant’s counsel by registered mail due to lack of time
and distance between his office and the office of the undersigned.

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II. CONTRACT OF SALE

A. Deed of Sale of Motor Vehicle

DEED OF SALE OF MOTOR VEHICLE

KNOW ALL MEN BY THESE PRESENTS:

That I, [NAME OF SELLER], Filipino, of legal age, single/married to [SPOUSE, IF

APPLICABLE], a resident of [ADDRESS OF SELLER], is the lawful owner of a certain motor vehicle
which is more particularly described as follows:

MAKE : MOTOR NO. :

SERIES : SERIAL/CHASSIS NO.:
TYPE OF BODY: PLATE NO. :
YEAR MODEL : FILE NO. :
C.R. NO. :

That for and in consideration of the sum of [AMOUNT IN WORDS PESOS] (PhP xxx,
xxx.xx), Philippine Currency, receipt whereof is hereby acknowledged to my entire satisfaction, I
hereby sell, transfer, and convey by way of Absolute Sale unto [NAME OF BUYER], Filipino, of legal
age, and resident of [ADDRESS OF BUYER], the above-described motor vehicle, free from all liens
and encumbrances.

IN WITNESS WHEREOF, the parties have signed this agreement this __th day of [MONTH,
YEAR] at [PLACE OF SIGNING].

(sgd.) (sgd.)
[NAME OF BUYER] [NAME OF SELLER]
VENDEE VENDOR

[If Seller is married, include spousal consent as follows:]

With my consent:

(sgd.)
[NAME OF SPOUSE OF SELLER]

SIGNED IN THE PRESENCE OF:

_________________ _________________

[PLUS ACKNOWLEDGMENT FOR TWO-PARTY INSTRUMENT]

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B. Bill of Sale (Personal Property)

REPUBLIC OF THE PHILIPPINES )

City/Municipality of ____________ ) S.S.

BILL OF SALE

KNOW ALL MEN BY THESE PRESENTS:

I, [NAME OF SELLER], Filipino, single, and resident of [ADDRESS OF SELLER] for and in
consideration of the amount of [AMOUNT IN WORDS PESOS] (PhP xxx,xxx.xx), paid to me today
by [NAME OF BUYER], Filipino, single and resident of [ADDRESS OF BUYER] do hereby SELL,
TRANSFER and CONVEY absolutely and unconditionally unto said [NAME OF BUYER] the following
property:

(Description of property)

I own and have the right to sell and transfer the title and ownership of the above–described
property; I will defend the same against the claims of any and all persons whatsoever.

IN WITNESS WHEREOF, I have signed this instrument this __th day of [MONTH, YEAR]
at [PLACE OF SIGNING].

(sgd).
[NAME OF SELLER]

SIGNED IN THE PRESENCE OF:

_________________ _________________

[PLUS ACKNOWLEDGMENT]

C. Unilateral Deed of Sale of Registered Land

REPUBLIC OF THE PHILIPPINES )

City/Municipality of ____________ ) S.S.

DEED OF ABSOLUTE SALE

KNOW ALL MEN BY THESE PRESENTS:

I, [NAME OF SELLER], Filipino, single/married to [SPOUSE, IF APPLICABLE], and resident

of [ADDRESS OF SELLER] for and in consideration of the amount of [AMOUNT IN WORDS PESOS]
(PhP xxx,xxx.xx), paid to me today by [NAME OF BUYER], Filipino, single and resident of
[ADDRESS OF BUYER] do hereby SELL, TRANSFER and CONVEY absolutely and unconditionally
unto said [NAME OF BUYER] that certain parcel(s) of land, together with the buildings and
improvements thereon situated in the [CITY/MUNICIPALITY OF ____], free from all liens and
encumbrances whatsoever and more particularly described as follows:
(Technical Description of property as indicated in the title)

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of which I am the registered owner in fee simple, my title thereto being evidenced by
[TRANSFER/ORIGINAL CERTIFICATE TITLE NO.__________], issued by the Register of Deeds of
[CITY/MUNICIPALITY].

It is hereby mutually agreed that the vendee shall bear all the expenses for the execution and
registration of this deed of sale.3

IN WITNESS WHEREOF, I have signed this instrument this __th day of [MONTH, YEAR]
at [PLACE OF SIGNING]

(sgd).
[NAME OF SELLER]

[If Seller is married, include spousal consent as follows:]

With my consent:
(sgd.)
[NAME OF SPOUSE OF SELLER]

SIGNED IN THE PRESENCE OF:

_________________ _________________

[PLUS ACKNOWLEDGMENT]

D. Unilateral Deed of Sale of Unregistered Land

REPUBLIC OF THE PHILIPPINES )

City/Municipality of ____________ ) S.S.

DEED OF ABSOLUTE SALE

KNOW ALL MEN BY THESE PRESENTS:

I, [NAME OF SELLER], Filipino, single/married to [SPOUSE, IF APPLICABLE], and resident

of [ADDRESS OF SELLER] for and in consideration of the amount of [AMOUNT IN WORDS PESOS]
(PhP xxx,xxx.xx), paid to me today by [NAME OF BUYER], Filipino, single and resident of
[ADDRESS OF BUYER] do hereby SELL, TRANSFER and CONVEY absolutely and unconditionally
unto said [NAME OF BUYER] that certain parcel(s) of land, together with the buildings and
improvements thereon situated in the [CITY/MUNICIPALITY OF ____], free from all liens and
encumbrances whatsoever and more particularly described as follows:
(Description: state the nature of each piece of land and its improvements, situations and boundaries,
area in square meters, e.g. “Bounded on the N. by ____________; on the E. by ___________; on the
S. by ____________; and on the W. by ____________; with an area of ________ square meters,
more or less.”)

THAT the SELLER does hereby declare that the boundaries of the foregoing land are visible
by means of [MONUMENTS, CREEKS, TREES ETC.] that the permanent improvements existing
thereon consist of [LIST VARIOUS IMPROVEMENTS, IF NONE, STATE SO.]; that the land is

3 Note: “The expenses for the execution and registration of the sale shall be borne by the vendor, unless
there is a stipulation to the contrary.” (Civil Code, Article 1487)

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assessed for the current year at (PhP xxx.xx) as per Tax Declaration No. _________, and that the
property is in present possession of the SELLER.

The above-described real estate, not having been registered under Act No. 496 nor under the
Spanish Mortgage Law, I have agreed to register this instrument under the provisions of Sec. 194 of
the Revised Administrative Code, as amended by Act No. 3344.

IN WITNESS WHEREOF, I have signed this instrument this __th day of [MONTH, YEAR]
at [PLACE OF SIGNING].

(sgd).
[NAME OF SELLER]

[If Vendor is married, include spousal consent as follows:]

With my consent:

(sgd.)
[NAME OF SPOUSE OF SELLER]

SIGNED IN THE PRESENCE OF:

_________________ _________________

[PLUS ACKNOWLEDGMENT]

E. Bilateral Deed of Sale of Registered Land

REPUBLIC OF THE PHILIPPINES )

City/Municipality of ____________ ) S.S.

DEED OF ABSOLUTE SALE

KNOW ALL MEN BY THESE PRESENTS:

This DEED OF ABSOLUTE SALE is made, executed and entered into by:

[NAME OF SELLER], Filipino, single/married to [SPOUSE, IF APPLICABLE], and resident

of [ADDRESS OF SELLER] (SELLER)

-and-

[NAME OF BUYER], Filipino, single/married to [SPOUSE, IF APPLICABLE] and resident of

[ADDRESS OF BUYER] (BUYER)

WITNESSETH

That the SELLER is the registered owner in fee simple of a parcel of land with improvements
situated in the [CITY/MUNICIPALITY OF ____] with [TRANSFER/ORIGINAL CERTIFICATE TITLE

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NO.__________], issued by the Register of Deeds of [CITY/MUNICIPALITY] and more particularly

described as follows:

(Technical Description of property as indicated in the title)

That the SELLER for and in consideration of the amount of [AMOUNT IN WORDS PESOS]
(PhP xxx,xxx.xx), does hereby SELL, TRANSFER and CONVEY absolutely and unconditionally unto
the BUYER that certain parcel(s) of land, together with the buildings and improvements thereon free
from all liens and encumbrances whatsoever.

That it is hereby mutually agreed that the BUYER shall bear all expenses for the execution
and registration of this deed of sale.

IN WITNESS WHEREOF, the parties have signed this contract on this __th day of [MONTH,
YEAR] at [PLACE OF SIGNING].

(sgd.) (sgd.)
[NAME OF BUYER] [NAME OF SELLER]
BUYER SELLER

[If Buyer and/or Seller are married, include spousal consent as follows:]

With my consent:

(sgd.) (sgd.)
[NAME OF SPOUSE OF BUYER] [NAME OF SPOUSE OF SELLER]

SIGNED IN THE PRESENCE OF:

_________________ _________________

[PLUS ACKNOWLEDGMENT FOR TWO-PARTY INSTRUMENT]

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III. SPECIAL POWER OF ATTORNEY (IN RELATION TO

CONVEYANCE OF REAL PROPERTY)

A. Special Power of Attorney for Sale of Real Property

REPUBLIC OF THE PHILIPPINES )

City/Municipality of ____________ ) S.S.

SPECIAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS:

I, [NAME], of legal age, Filipino citizen, with residence and postal address at [ADDRESS], do
hereby NAME, CONSTITUTE, AND APPOINT [NAME OF AGENT/ATTORNEY IN FACT], of legal
age, Filipino citizen, with postal address at [ADDRESS], as my true and lawful attorney-in-fact to act
for and in my name, place and stead and to perform the following acts:

(A) To sell, offer for sale, and come to an agreement as to the purchase price;
(B) To sign for me and in my name; and
(C) To receive payment from the sale of my property more particularly described as follows:

[DESCRIPTION OF PROPERTY]

HEREBY GRANTING unto said attorney-in-fact full power and authority to execute and
perform every act necessary to render effective the power to sell the foregoing properties, as though
I myself have performed it, and HEREBY APPROVING ALL that he/she may do by virtue hereof with
full right of substitution of his/her person and revocation of this instrument.

IN WITNESS WHEREOF, I have hereunto affixed my signature on this __th day of [MONTH,
YEAR], in [PLACE OF EXECUTION OF INSTRUMENT].

__________________ __________________
[NAME OF PRINCIPAL] [NAME OF AGENT]

Signed in the presence of:

__________________ __________________

[PLUS ACKNOWLEDGEMENT]

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B. Special Power of Attorney for Purchase of Real Property

REPUBLIC OF THE PHILIPPINES )

City/Municipality of ____________ ) S.S.

SPECIAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS:

I, [NAME], of legal age, Filipino citizen, with residence and postal address at [ADDRESS], do
hereby NAME, CONSTITUTE, AND APPOINT [NAME OF AGENT/ATTORNEY IN FACT], of legal
age, Filipino citizen, with postal address at [ADDRESS], as my true and lawful attorney-in-fact to act
for and in my name, place and stead and to perform the following acts:

(A) To purchase real property or properties situated anywhere in the Philippines, in an amount
acceptable to him/her;
(B) To sign and/or execute any deed conveyance to effect the sale of the property in my name;
and
(C) To receive all documents pertinent to the purchase of any property:

HEREBY GRANTING unto said attorney-in-fact full power and authority to execute and
perform every act necessary to render effective the power to purchase properties, as though I myself
have performed it, and HEREBY APPROVING ALL that he/she may do by virtue hereof with full right
of substitution of his/her person and revocation of this instrument.

IN WITNESS WHEREOF, I have hereunto affixed my signature on this __th day of [MONTH,
YEAR], in [PLACE OF EXECUTION OF INSTRUMENT].

__________________ __________________
[NAME OF PRINCIPAL] [NAME OF AGENT]

Signed in the presence of:

__________________ __________________

[PLUS ACKNOWLEDGEMENT]

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IV. JUDICIAL AFFIDAVIT

JUDICIAL AFFIDAVIT

I, [NAME], of legal age, [SINGLE/MARRIED], [CITIZENSHIP], residing at [ADDRESS],

employed as [OCCUPATION/PROFESSION] at [OFFICE ADDRESS], after having been duly sworn
to in accordance with law and fully conscious that I do so under oath and that I may face criminal
liability for false testimony or perjury in way of answers to the questions propounded to me during
the examination conducted on [DATE] by [NAME OF LAWYER], with office address [OFFICE
ADDRESS OF LAWYER], do hereby depose and state:

Q1: [QUESTION]

A: [ANSWER]

Q2: [QUESTION]

A: [ANSWER]

Q3: [QUESTION]

A: [ANSWER]

Q4: [QUESTION]

A: [ANSWER]

Q5: [QUESTION]

A: [ANSWER]

IN WITNESS WHEREOF, I have hereunto signed this instrument this __th day of [MONTH,
YEAR] at [PLACE OF SIGNING].

(sgd.)
[NAME OF AFFIANT]
Affiant

ATTESTATION AND OFFER

I, [NAME OF LAWYER], of legal age, with office address [OFFICE ADDRESS OF

LAWYER], do hereby certify that:

I propounded questions to [NAME] and faithfully recorded or caused to be recorded the

questions I asked and the corresponding answers that [NAME] gave, as above stated.

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Neither I nor any other person then present or assisting [HIM/HER] coached [HIM/HER]
regarding [HIS/HER] answers and which testimony is being offered to prove: [ENUMERATE THE
PURPOSE OF THE OFFER].

IN WITNESS WHEREOF, I have hereunto signed this instrument this __th day of [MONTH,
YEAR] at [PLACE OF SIGNING].

(sgd.)
[NAME OF LAWYER]

[PLUS JURAT WHICH INCLUDES THE DETAILS OF THE WITNESS AND LAWYER]

Note: Judicial Affidavit Rule shall apply to ALL actions, proceedings, and incidents requiring the
presentation of evidence; ALL courts, quasi-judicial and investigative bodies authorized by SC to
receive evidence, including IBP; and NOT to small claims cases.

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