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2020-2021 PRE-WEEK NOTES

IN

REMEDIAL LAW
BY:

DEAN FERDINAND A. TAN

&

ACADEMICUS REVIEW CENTER INC.

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CIVIL PROCEDURE:

I. General Provisions:

1. Q: What are the Distinctions between Civil Action, Criminal Action and Special
Proceeding? (2006 Bar Exam)

Civil Action Criminal Action Special Proceeding

1. As to definition:

-One by which a party sues
another for the enforcement
or protection of a right, or the
prevention or redress of a
wrong. (Sec. 3, Rule 1)
-One by which the State -A remedy by which a party
prosecutes a person for an seeks to establish a status, a
act or omission punishable right, or a particular fact.
by law. (Sec. 1[b] of Rule 1) (Sec. 1[c], Rule 1)

2. As to governing rules:

-Civil action is governed by
Rules 1-71
-It is governed by Rules 110-
127 of the Revised Rules of
Criminal Procedure, and
rules on ordinary civil actions
only applies in suppletory
character.
-It is governed by Rules 72-
109 of the Rules of Court,
and rules on ordinary civil
actions only applies in
suppletory character.

3. As to basis:

-A civil action is based on a -It is based on acts or -It is based on particular fact,
cause of action omission in violation of penal status or a right sought to be
laws. established.
4. As to the nature:

-The proceeding is -It is adversarial and -As a rule, it is non-

adversarial since it involves prosecutorial in nature. adversarial, except when
two (2) contending parties there is an
oppositor/respondent.
5. As to parties:

-Parties in a civil action are
the plaintiff and the
defendant. In case of special
civil action is commenced by
petition, parties are the
petitioner and the
respondent.
-Parties in a criminal action -Party in special proceeding
are the State and the is the petitioner, except when
accused, and in case of opposed, the oppositor or
preliminary investigation, the respondent.
complainant and the
respondent.

Rules on Cause of Action (Rule 2)

1. Q: What is rule on splitting of cause of action? (Sec. 3, Rule 2)

A: Splitting of cause of action – one single cause of action - split into many cases.
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Ex. Violation of lease contract- one action is for unlawful detainer and another is for recovery of
unpaid rentals.

2. Q: What are the effects of splitting of cause of action?

A: It may result to litis pendentia or barred by prior judgment.

3. Q: Can there be a motu propio dismissal of the case in case of splitting of cause of
action?

A: Yes, if the splitting of cause of action results to either litis pendetia or barred by prior
judgment it can be dismissed upon the initiative of the court under Sec. 1, Rule 9 which allows
dismissal on the ground of lack of jurisdiction over the subject matter of the case, litis pendentia,
barred by prior judgment and barred by statute of limitation.

4. Q: What is the remedy of the defendant in case of splitting of cause of action?

A: Defendant may file a motion to dismiss on the ground of litis pendentia or barred by prior
judgment under Sec. 12, Rule 15 or raised it as an affirmative defense in the responsive
pleading under Sec. 5(b), Rule 6 of the 2019 Revised Rules on Civil Procedure

5. Q: What is the nature of the dismissal?

A: The dismissal is with prejudice to the refiling of the action as clearly provided under Sec. 13,
Rule 15.

6. Q: What is the remedy of the plaintiff in case of dismissal of the action?

A: Plaintiff may appeal the order of dismissal based since it is a final order of dismissal which
completely disposes of the case, and therefore appealable under Sec. 1, Rule 41 which states
that “An appeal may be taken from a final judgment or final order that completely
disposes of the case or matters when declared by the Rules to be appealable.

7. Q: What are the distinctions Between Failure to State A Cause of Action and Lack Of
Cause Of Action.

Failure to state a cause of action Lack of cause of action

a) Within the period of filing a responsive a) A demurrer is filed “after the plaintiff has
pleading, defendant may raise the ground completed the presentation of his
of failure to state a cause of action as an evidence/rested its case.”
affirmative defense under Sec. 12, Rule 8.
b) Failure to state a cause of action is b) Lack or insufficiency of cause of action is
determined simply on the basis of the predominantly based on the appreciation of
allegations in the complaint of the plaintiff. evidence.
c) Failure to state a cause of action may c) The court may however require an
still be curable by an amendment of the amendment during the presentation of
pleading done once as a matter of right evidence of the plaintiff, if evidence that is
before a responsive pleading has been filednot in issue is not objected to by the
under Sec. 2 of Rule 10, but not as a defendant, in which case the evidence is
matter of discretion under Sec.3 of Rule 10deemed “impliedly admitted” so an
which prohibits amendment to confer amendment is not really necessary to
jurisdiction, or to state a cause of action,
appreciate the evidence; or when an
objection was in fact made, but at the liberal
discretion of the court “if the presentation of
the merits of the action and the ends of
substantial justice will be sub-served
thereby.” (Sec. 5, Rule 10)
d) If the affirmative defense is denied it d) If a demurrer is denied, the defendant
cannot be the subject of motion for shall have the right to present evidence.
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reconsideration, appeal or petition for

certiorari, defendant shall wait for the
judgment and appeal the same and
raised as an error in the appeal. (Sec.
12(e), Rule 8)
e) If the affirmative defense is granted on
the ground of failure to state a cause of
action, the dismissal is without prejudice
to the refiling of the action.
f) The ground of failure to state a cause of
action may be invoked as an affirmative
defense in the pleading. (Sec. 12, Rule 8)
e) If a demurrer to evidence is granted,
the dismissal is with prejudice, as the
same is considered a judgment on the
merits of the case, hence, the remedy of
the plaintiff is to appeal from such
judgment. Consequently, on appeal, if the
judgment was reversed, the defendant shall
be deemed to have waived his right to
present his evidence.
f) The ground of insufficiency of evidence
may be invoked in a motion for demurrer
to evidence (Rule 33), in a motion for
reconsideration (Rule 37) or in an appeal
memorandum.

b. Joinder of Causes of Action (Sec. 5, RULE 2)

8. Q: What are the requisites for the joinder of causes of action?

A: -It must comply with the joinder of parties.

- It must not involve special civil action or actions governed by special rules. (key
words)
- If one of the causes of action is within the jurisdiction of the RTC- then RTC
-If sum of money, aggregate sum shall determine jurisdiction- whether RTC or MTC
(Key words under the totality rule)

*** 9. Q: Can there be a joinder of causes of action for injunction and quieting of title?

A. No, since quieting of title or removal of clouds is a special civil action under Rule 63
which cannot be joined with an ordinary civil action for injunction since it expressly
prohibited under Sec. 5 (b), Rule 2 of the 1997 Rules on Civil Procedure.

Another noticeable area of stumble for the petitioners related to their having joined two
causes of action, i.e., injunction and quieting of title, despite the first being an ordinary
suit and the latter a special civil action under Rule 63. Section 5, Rule 2 of the Rules of
Court disallowed such joinder. The RTC should have severed the causes of action, either
upon motion or motu proprio, and tried them separately, assuming it had jurisdiction over both
under Section 6, Rule 2 of the Rules of Court. (Guillermo Salvador, et al. Vs. Patricia, Inc., G.R.
No. 195834. November 9, 2016, BERSAMIN, J.)

10. Q: What is the effect if the plaintiff filed a complaint for the recovery of loan and for
foreclosure of mortgage?

A: In case of a loan secured by a mortgage, the creditor has a single cause. The creditor cannot
split his single cause of action by filing a complaint on the loan, and thereafter another separate
complaint for foreclosure of the mortgage. (Central Visayas Finance Corporation vs. Sps.
Adlawan, G.R. No. 212674, March 25, 2019)

11. Q: May an action for collection of sums of money be joined with an action for
ejectment?

A: No, since collection of money is an ordinary civil action and ejectment case is a
special civil action joinder is prohibited under Sec. 5 (b), Rule 2. (Lajave Agricultural
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Management and Development Enterprises, Inc. vs. Spouses Agustin Javellana and Florence
Apilis-Javellana, G.R. No. 223785, November 7, 2018)

12. Q: Can there be a joinder of claims if the amount does not exceed 400th pesos?

A: Yes, Sec.8 of the Revised 2016 Rules on Small Claims Case allows joinder of Claims in
when the aggregate sum not exceeding 400th pesos exclusive of cost and interest.

13. Q: Which court has jurisdiction?

A: Metropolitan/Municipal Trial Court has exclusive original jurisdiction over actions recovery of
money pursuant to Sec. 33 of B.P. 129 as amended in relation to the Revised 2016 Rules on
Small Claims Cases:

c. Misjoinder of Causes of Action (Sec. 6, RULE 2)

14. Q: What are the effects in case of misjoinder of causes of action?

A: In case of misjoinder of causes of action, it has the following effects, to wit:

a) It is not a ground for dismissal of an action;

b) It may on motion of a party or on the initiative of the court, be severed and proceeded
with separately. (Sec. 6, Rule 2)

III. PARTIES (RULE 3)

1. Q: Who is a real party-in-interest?

A: A real party-in-interest is the party who stands to be benefited or injured by the judgment in
the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or
these Rules, every action must be prosecuted or defended in the name of the real party-in-
interest.

2. Q: What is the effect if the action was prosecuted by a person not a real party in
interest?

A: A case is dismissible for lack of personality to sue upon proof that the plaintiff is not the real-
party-in-interest, hence grounded on failure to state a cause of action. (Allan C. Go vs. Mortimer
F. Cordero, G.R. No. 164703, May 4, 2010)

3. Q: What is the remedy if the case is instituted by a person not a real party-in-interest?

A: The remedy of the defendant Is to file an answer and raise the ground of failure to state a
cause of action as an affirmative defense under Sec. 12, Rule 8.

4. Q: What is the rule in case of permissive joinder of parties?

A: All persons in whom or against whom any right to relief in respect to or arising out of the
same transaction or series of transactions is alleged to exist whether jointly, severally, or in the
alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as
defendants in one complaint subject to the following requirements:

a) Where any question of law or fact common to all such plaintiffs or to all such
defendants may arise in the action;

b) The court may make such orders as may be just to prevent any plaintiff or defendant
from being embarrassed or put to expense in connection with any proceedings in which he may
have no interest. (Sec. 6, Rule 3)

5. Q: What is the rule on compulsory joinder of parties?

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A: Parties in interest without whom no final determination can be had of an action shall be
joined either as plaintiffs or defendants.” (Sec. 7, Rule 3)

6. Q: Will non-joinder of indispensable party a ground for outright dismissal of the

action?

A: No. Failure to implead any of the indispensable party will not result to outright dismissal,
remedy is to implead them and in case of failure to comply with the order of the court dismissal
under Sec. 3, Rule 17. (Land Bank of the Philippines Vs. Eduardo M. Cacayuran, respondent;
Municipality of Agoo, La Union, Intervenor G.R. No. 191667. April 22, 2015)

7. Q: What are the effects in case of non-joinder or misjoinder of necessary party?

A: The effects of non-joinder or misjoinder of necessary party shall be as follows, to wit:

1) A necessary party may be omitted in a pleading, but the pleader shall set forth his
name, if known, and shall state why he is omitted;

2) Should the court find the reason for the omission unmeritorious, it may order the
inclusion of the omitted necessary party if jurisdiction over his person may be obtained. (Sec. 9,
Rule 3);

3) On the contrary, if the court finds the omission justifiable, or even if not justifiable but
jurisdiction over the person of such party cannot be obtained by such court, then such omission
will be allowed, and the proceedings shall continue despite such non-joinder. (Sec. 9, Rule 3)

8. Q: What are the effects in case of misjoinder or non-joinder of parties?

A: The effects in case of misjoinder nor non-joinder of parties are:

a) It is not a ground for dismissal of an action;

b) Parties may be dropped or added by order of the court on motion of any party or on its
own initiative at any stage of the action and on such terms as are just;
c) Any claim against a mis-joined party may be severed and proceeded with separately.
(Sec. 10, Rule 3)

9. Q: What is a class suit?

A: Class suit – is a suit filed before the court which involves subject matter of the controversy is
of common or general interest to many persons so numerous which is impracticable to bring
them before the court, and represented by sufficient number for the benefit of all. (Sec. 12, Rule
3)

Example. Closure of the roads due to excavation affecting many barangays and their access to
different places in going to and out of the province involves subject matter of controversy
which is one of common or general interest to many persons which qualifies for a class
suit (Key words in the answer).

10. Q: What is the rule on alternative defendants?

A: If the plaintiff is not certain against whom the action shall be filed, he may join any or all of
them as defendants in the alternative. (Sec. 13, Rule 3)

11. Q: What is the rule in case a party in an action is an entity without juridical
personality?

A: When two or more persons not organized as an entity with juridical personality enter into a
transaction, it has the following effects:

a) They may be sued under the name by which they are generally or commonly known;
and
b) In the answer of such defendant, the names and addresses of the persons composing
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said entity must all be revealed. (Sec. 15, Rule 3)

12. Q: What are the effects in case of death or separation of a party who is a public
officer?

A: When a public officer is a party in an action in his official capacity and during its pendency
dies, resigns, or otherwise ceases to hold office, the action may be:

a) Continued and maintained by or against his successor if, within thirty (30) days after
the successor take office or such time as may be granted by the court, if it is satisfactorily
shown to the court by any party that there is a substantial need for continuing or maintaining it
and that the successor adopts or continues or threatens to adopt or continue the action of his
predecessor.

b) Before a substitution is made, the party or officer to be affected, unless expressly

assenting thereto, shall be given reasonable notice of the application therefor and accorded an
opportunity to be heard. (Sec. 17, Rule 3)

13. Q: What is the effect in case of transfer of interest by the party?

A: In case of any transfer of interest by the party, the court may allow:

a) The action may be continued by or against the original party;

b) Unless the court upon motion directs the person to whom the interest is transferred to
be substituted in the action or joined with the original party. (Sec. 19, Rule 3)

14. Q: What are the actions that survive the death of the party?

a) Contractual money claims:

When the action is for recovery of money arising from contract, express or implied,
and the defendant dies before entry of final judgment in the court in which the action was
pending at the time of such death, the case shall;

a) It will not be dismissed but shall instead be allowed to continue until entry of final
judgment; and

b) In case of a favorable judgment obtained by the plaintiff therein shall be enforced in

the manner especially provided in these Rules for prosecuting claims against the estate of a
deceased person. (Sec. 20, Rule 3)

TAKE NOTE: Correlate Sec. 20, Rule 3 with Sec. 5 & 9 of Rule 86 on the Claims against the
Estate.

b) Action which may not be brought against the executor or administrator:

a) Actions to recover real;

b) Recovery of personal property or an interest therein, from the estate, or to enforce a
lien thereon; and a
c) Actions to recover damages for an injury to person or property, real or personal, may
be commenced against him.

Basis of the answer: Sec. 1, Rule 87

15. Q: Who is an indigent party?

A: An indigent party is one who is allowed to litigate an action who has no money or property
sufficient and available for food, shelter and basic necessities for himself and his family.

16. Q: What are the requirements for a party to be declared as an indigent?

A: A party may be authorized to litigate his action, claim or defense as an indigent if the court
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allows subject to the following requirements:

a) Upon an ex parte application and hearing;

b) The court is satisfied that the party is one who has no money or property sufficient
and available for food, shelter and basic necessities for himself and his family. (Sec. 21, Rule 3)

*Requirements under Sec. 18 of A.M. No. 00-2-01:

Whose gross income and that of their immediate family do not exceed four thousand
(P4,000.00) pesos a month if residing in Metro Manila, and three thousand (P3,000.00) pesos a
month if residing outside Metro Manila, and

(b) Who do not own real property with an assessed value of more than fifty thousand
(P50,000.00) pesos shall be exempt from the payment of legal fees.

17. Q: Is an erroneous granting of a Motion to Declare as pauper litigant a jurisdictional

error:

A: NO. It is true that the non-payment of the filing fees usually prevents the trial court
from acquiring jurisdiction over the claim stated in the complaint. But for the CA to annul
the judgment rendered after trial based solely on such non-payment was not right and just
considering that the non-payment of the filing fees had not been entirely attributable to the
plaintiff alone. The trial court was more, if not exclusively, to blame for the omission. The
exemption of the clients of the PAO like him from the payment of the legal fees was expressly
declared by law for the first time in Republic Act No. 9406. (Samsoden Pangcatan Vs.
Alexandro "Dodong" Maghuyop and Belindo Bankiao/Alexandro "Dodong" Maghuyop and
Belindo Bankiao Vs. Samsoden Pangcatan, G.R. No. 194412/G.R. No. 194566. November 16,
2016, BERSAMIN, J)

IV. VENUE (RULE 4)

1. Q: How to determine the venue of the action?

A: The nature of the action should be determined, by determining whether it is a real action or
a personal action or mixed action.

2. Q: What is the rule on venue in case of a Real action?

A: Action involving title to possession or interest over a real property- where the property is
located or any portion thereof is situated.

3. Q: Where will be the venue of an action for annulment of title or rescission of sale of
real property?

A: An action for the annulment or rescission of sale of real property is primarily intended for the
recovery of said real property, and therefore a real action, and therefore venue lies where the
property is located or any portion thereof is situated pursuant to Sec. 1 of Rule 4.

4. Q: Where is the venue of an action for revival of judgment?

A: The venue in case of revival of judgment depends on the nature of the original action. If the
original action is personal the venue is the residence of the plaintiff or the defendant at the
election of the plaintiff, and if real action venue lies where the property is located or any portion
thereof is situtated.

5. Q: Where is the venue of an action to recover deficiency in case of extrajudicial

foreclosure of mortgage?

A: An action to recover the deficiency after the extrajudicial foreclosure of the real
property mortgage is a personal action, hence, venue lies on the residence of the parties.
(BPI Family Savings Bank, Inc. Vs. Spouses Benedicto & Teresita Yujuico G.R. No. 175796. July
22, 2015)
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6. Q: What is the nature of an action for Nullity of Deed of Sale with Right to Repurchase
but without allegation or prayer for the recovery of possession in the complaint?

A: The action the nature of an action is determined by the allegations in the complaint, and
since the complaint did not allege or pray for the recovery or reconveyance of the real property,
the it is a personal action, venue lies with the residence of the party. (Rudy L. Racpan vs. Sharon
Barroga-Haigh, G.R. No. 234499, June 6, 2018)

7. Q: Where will be the venue of personal action involving juridical personalities?

A: For personal actions involving juridical personalities “resident” is to be construed as the

place where the principal place of business is found. Hygienic Packaging Corporation vs.
Nutri-Asia, Inc., Doing Business Under the, Name and Style of UFC Philippines (Formerly Nutri-
Asia, Inc.), G.R. No. 201302, January 23, 2019)

8. Q: What is the rule on venue in case of non-resident defendants?

A: If any of the defendants does not reside and is not found in the Philippines, and the action
affects the personal status of the plaintiff, or any property of said defendant located in
the Philippines, the action may be commenced and tried in the court of:

a) The place where the plaintiff resides; or

b) Where the property or any portion thereof is situated or found). (Sec. 3, R.4)

9. Q: Can the plaintiff elect as to the venue of the action

A: NO. The High Court held that there can be no election as to the venue of the filing of a
complaint when the plaintiff has no residence in the Philippines. In such case, the complaint
may only be filed in the court of the place where the defendant resides.

10. Q: What is the Doctrine of Exclusivity of Venue?

A: It provides that when the parties expressly stipulated in their written agreement on where the
particular place the action shall be filed, it shall be complied with.

11. Q: What are the requirements in order for the “Doctrine of Exclusivity of Venue” to
apply?

A: There must be a valid and binding agreement/contract between the parties entered into
before the filing of the action. If the agreement is simulated or the signature is forged, then
exclusivity of venue will not apply and the rules on venue under the Rules of Court shall apply.

12. Can the parties in an unlawful detainer case stipulate as to the exclusive venue of the
action?

A: YES. While Sec. 1, Rule 4 of the Rules of Court states that ejectment actions shall be filed in
“the municipal trial court of the municipality or city wherein the real property involved x x x is
situated,” Sec. 4 of the same Rule provides that the rule shall not apply “where the parties
have validly agreed in writing before the filing of the action on the exclusive venue
thereof, the High Court upheld the validity of a stipulation in a contract providing for a
venue for ejectment actions other than that stated in the Rules of Court. Since the
unlawful detainer action is connected with the contract,

12. Will the rule on exclusivity of venue be applied in extra-judicial foreclosure of

mortgage?

A: NO. The exclusive venue of Makati City, as stipulated by the parties and sanctioned by
Section 4, Rule 4 of the Rules of Court, cannot be made to apply to the petition for
extrajudicial foreclosure of mortgage filed by the respondent bank because the
provisions of Rule 4 pertain to venue of action, which an extrajudicial foreclosure is not.”
(Spouses Hermes P. Ochoa and Araceli D. Ochoa vs. China Banking Corporation, G.R. No.
192877, March 23, 2011)
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13. Q: Will exclusive venue be enforced when the complaint assails the validity of the
agreement?

A: No, If the complaint directly assailing the validity of the written instrument itself should not be
bound by the exclusive venue stipulation contained therein and should be filed in accordance
with the general rules on venue. (Virgilio C. Briones Vs. Court of Appeals, Special 8th Division and
Cash Asia Credit Corporation G.R. No. 204444. January 14, 2015)

14. Q: Can a sales invoice or purchase order be a valid agreement as to the venue of the
action?

A: No. The purpose of the Sales Invoices is merely to acknowledge that the representative of
the party received the goods in good condition, and since there is no stipulation then the venue
lies with the principal office of the corporation. (Hygienic Packaging Corporation vs. Nutri-Asia,
Inc., Doing Business Under the, Name and Style of UFC Philippines (Formerly Nutri-Asia, Inc.), G.R.
No. 201302, January 23, 2019)

15. Q: What is the effect if the issue of improper venue if it is not raised?

A: Failure to raise the issue of improper venue as an affirmative defense in the answer is
deemed waived under Sec. 1 of Rule 9, and cannot therefore be raised for the first time
on appeal.

19. Q: What is the remedy of the defendant in case of improper venue?

A: File an Answer and raised the ground that the venue is improperly laid as an
affirmative defense under Sec. 12, Rule 8.

16. Q: What is the remedy of the plaintiff in case of dismissal?

A: Re-file the case since the dismissal is without prejudice to the refiling of the action since it is
not one of the grounds mentioned under Sec. 13, Rule 15 that bars the refiling of the action, and
since the Order of dismissal is without prejudice, hence, it is not appealable under Sec. 1, Rule
41.

V. PLEADINGS (RULE 6)

1. Q: Is a memorandum a pleading?

A: A: No, the Supreme Court held in one case that, “A memorandum is not a pleading as con -
templated under the Rules of Court.” (San Miguel Corporation vs. E. Razon Inc., CV- 6334,
April 24, 1984)

It is a formal or written summary of arguments of counsel on issues involved in a

litigation. (National Waterworks & Sewerage System Authority vs. Montejo, 118 Phil. 212)

2. Q: What are the kinds of defenses?

A: Defenses may either be negative or affirmative.

(a) A negative defense is the specific denial of the material fact or facts alleged in the
pleading of the claimant essential to his or her cause or causes of action.

(b) An affirmative defense is an allegation of a new matter which, while hypothetically

admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar
recovery by him or her. The affirmative defenses include fraud, statute of limitations, release,
payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any
other matter by way of confession and avoidance.

Affirmative defenses may also include grounds for the dismissal of a complaint,
specifically, that the court has no jurisdiction over the subject matter, that there is another
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action pending between the same parties for the same cause, or that the action is barred by a
prior judgment. (Sec. 5, Rule 6)

3. Q: What is a counterclaim?

A: A counterclaim is any claim which a defending party may have against an opposing party.
(Sec. 6, Rule 6)

4. Q: Distinguish compulsory counterclaim (principle of recoupment) and permissive

counterclaim (principle of set off)?

COMPULSORY COUNTERCLAIM PERMISSIVE COUNTERCLAIM

a) A compulsory counterclaim arises out of or is a) A permissive counterclaim does not arise

connected with the transaction or occurrence out of and is not connected with the transaction or
constituting the subject matter of the opposing occurrence constituting the subject matter of the
party’s claim opposing party’s claim;

b) A compulsory counterclaim is barred if not b) a permissive counterclaim is not barred

set up in the answer (or in the amended answer even if not set up in the answer;

c) Plaintiff need not answer a compulsory c) plaintiff must answer a permissive counter-
counterclaim, except in summary proceeding claim;

d) If plaintiff does not answer a compulsory d) plaintiff who does not answer a permissive
counterclaim, he cannot be declared in default; counterclaim may be declared in default in re-
spect thereto;

e) a compulsory counterclaim does not require e) A permissive counterclaim, being an

a certification on non-forum shopping; initiatory pleading, requires a certification on non-
forum shopping;

f) compulsory counterclaim is not an initiatory f) If it is a permissive counterclaim, the lack of

pleading, and thus need not require a certificate of a certificate of non-forum shopping is fatal. (Es-
non-forum shopping. therlita Cruz-Agana vs. Hon. Santiago-Lagman,
G.R. No. 139018, April 11, 2005)

5. Q: What are the distinctions between Cross-claim and counterclaim?

A: A cross-claim may be distinguished from counterclaim in the following:

Cross claim Counterclaim

a) A cross claim is a claim against a co-defendant a) A counterclaim is a claim against an opposing

in a suit. party;

b) A cross-claim arises out of the transaction or b) While a counterclaim may or may not arise out
occurrence that is the subject matter either of the of the same transaction or occurrence, as in the
original action or the counterclaim. case of a permissive counterclaim which is in
effect a separate pleading in itself.

6. Q: What is a reply?

A: A reply is a pleading, the office or function of which is to deny, or allege facts in denial or
avoidance of new matters alleged in, or relating to, said actionable document.

7. Q; What is the effect of failure to file a reply?

A: All new matters alleged in the answer are deemed controverted. If the plaintiff wishes to
interpose any claims arising out of the new matters so alleged, such claims shall be set forth
in an amended or supplemental complaint. However, the plaintiff may file a reply only if the
defending party attaches an actionable document to his or her answer. (Sec. 10, Rule 6)
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8. Q: When can a rejoinder be filed?

A: In the event of an actionable document attached to the reply, the defendant may file a
rejoinder if the same is based solely on an actionable document.

9. Q: What is a third-party claim?

A: A third (fourth, etc.)-party complaint is a claim that a defending party may, with leave of court,
file against a person not a party to the action, called the third (fourth, etc.)-party defendant for
contribution, indemnity, subrogation or any other relief, in respect of his or her opponent's claim.

10. Q: When can a third-party claim be denied?

A: The third (fourth, etc.)-party complaint shall be denied admission, and the court shall
require the defendant to institute a separate action, where:

(a) the third (fourth, etc.)- party defendant cannot be located within thirty (30)
calendar days from the grant of such leave;
(b) matters extraneous to the issue in the principal case are raised; or
(c) the effect would be to introduce a new and separate controversy into the action.
(Sec. 11, Rule 6)

11. Q: What is the remedy in case of judgment on counterclaim, cross-claim of third-

party complaint while the main case is pending?

A: The judgment is not appealable under Sec. 1, Rule 41 which and therefore Petition for
certiorari is available, unless the court will allow appeal.

12. What is the effect of the dismissal of the main action on the counterclaim?

A: In case of dismissal of the main action, the counterclaim whether permissive or

compulsory will not be dismissed and shall be prosecuted in the same case or in a
separate action. (Padilla vs. Globe Asiatique , Delfin Lee)

13. Q: What is the rule on Bringing in of new parties in counterclaim and cross-claim?

A: When the presence of parties other than those to the original action is required for the
granting of complete relief in the determination of a counterclaim or cross- claim, the court shall
order them to be brought in as defendants, if jurisdiction over them can be obtained. (Sec. 12,
Rule 6)

14. Q: What are the pleadings which are allowed under the Rules of Procedure for Envi-
ronmental Cases.?

A: The pleadings and motion that may be filed are complaint, answer which may include
compulsory counterclaim. (Sec. 1, Rule 2, Part II of the Rules on Environmental Cases)

15. Q: What are the prohibited pleadings under the Rules of Procedure for Environmental
Cases?

A: The pleadings which are prohibited under the Rules of Procedure for Environmental Cases
are reply, rejoinder and third-party complaint. (Sec. 2, Rule 2, Part II of the Rules on
Environmental Cases)

VI. PARTS OF THE PLEADING (RULE 7)

a) Signature and Address:

1. Q: What is the requirement in order that pleadings and other written submission be
presented to the court?
13

A: Every pleading and other written submissions to the court must be signed by the party or
counsel representing him or her.

2. Q: What are the effects of the signature of the counsel in the pleading?

A: The signature of counsel constitutes as:

1) Certificate by him or her that he or she has read the pleading and document;

2) That to the best of his or her knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances:

3) It is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;

4) The claims, defenses, and other legal contentions are warranted by existing law
or jurisprudence, or by a non-frivolous argument for extending, modifying, or reversing
existing jurisprudence;

5) The factual contentions have evidentiary support or, if specifically so identified,

will likely have evidentiary support after availment of the modes of discovery under these
rules; and

6) The denials of factual contentions are warranted on the evidence, or if

specifically so identified, are reasonably based on belief or a lack of information.

3. Q: What are the consequences of violation of the rule?

A: If the court determines, on motion or motu proprio and after notice and hearing, that
this rule has been violated, it may:

1) Impose an appropriate sanction; or

2) Refer such violation to the proper office for disciplinary action, on any attorney,
law firm, or party that violated the rule, or is responsible for the violation.

4. Q: What are the sanctions that may be imposed against the law firm in case of
violation of the rule?

A: Absent exceptional circumstances, a law firm shall be held jointly and severally liable
for a violation committed by its partner, associate, or employee which may include the
following, to wit:

1) Non-monetary directive or sanction;

2) An order to pay a penalty in court; or,
3) If imposed on motion and warranted for effective deterrence, an order directing
payment to the movant of part or all of the reasonable attorney’s fees and other
expenses directly resulting from the violation, including attorney’s fees for the filing of
the motion for sanction.

Q: What is the prohibition as regards the above liabilities?

A: The lawyer or law firm cannot pass on the monetary penalty to the client.

b) Verification:

Q: How to verify a pleading?

A: A pleading is verified by an affidavit of an affiant duly authorized to sign said verification.

The authorization of the affiant to act on behalf of a party, whether in the form of a secretary’s
certificate or a special power of attorney, should be attached to the pleading, and shall allege
the following attestations:
14

(a) The allegations in the pleading are true and correct based on his or her personal
knowledge, or based on authentic documents;

(b) The pleading is not filed to harass, cause unnecessary delay, or needlessly
increase the cost of litigation; and

(c) The factual allegations therein have evidentiary support or, if specifically so
identified, will likewise have evidentiary support after a reasonable opportunity for discovery.

The signature of the affiant shall further serve as a certification of the truthfulness of
the allegations in the pleading.

Q: What is the effect if the verification based only on information and belief, or lack of proper
verification?

A: A pleading required to be verified that contains a verification based on “information and belief,” or
upon “knowledge, information and belief,” or lacks a proper verification, shall be treated as an
unsigned pleading.

Q: What is the effect if the person who signed the verification has no authority to do so?

A: The effect if the person who signed the verification has no authority to do is dismissal of the
complaint since the court has no jurisdiction over the complaint and the plaintiff. (Atty. Fe Q.
Palmiano-Salvador vs. Constantino Angeles, Substituted by Luz G. Angeles, G.R. No. 171219,
September 3, 2012)

Q: Will lack of notarial seal renders defective the verification and certification of non-
forum shopping?

A: No. The lack of notarial seal in the notarial certificate is a defect in a document that is
required to be executed under oath, but it does not necessarily render the pleading fatally
defective. Regulus Development, Inc. Vs. Antonio Dela Cruz G.R. No. 198172. January 25, 2016)

b) Acts of Forum Shopping

1. Q: What is forum shopping?

A: It is an act of malpractice committed by the parties to the case by filing multiple suits before
different court or fora, either successively or simultaneously, involving the same parties,
cause of action; and asking for the same relief, for the purpose of obtaining a favorable
judgment.

2. Q: What are the effects of forum shopping?

A: Dismissal with prejudice- since it is barred by prior judgment or litis pendentia.

Basis of the answer: Sec. 12, Rule 15

3. Q; Can the court motu propio dismiss the case in case of forum shopping?

A: Yes, if it is based on litis pendentia or barred by prior judgment as mandated under Sec. 1,
Rule 9.

4. Q: What is the remedy of the plaintiff in case of dismissal of the action in case of forum
shopping?

A: The plaintiff may appeal the Order of dismissal since it is a final order of dismissal which is
appealable under Sec. 1, Rule 41.

5. Q: What is the test to determine the existence of forum shopping?

15

A: There must be similarity of parties, cause of action, and relief, otherwise no forum shopping.
Discuss in your answer which of the requisites is missing.

Example: If the judgment was challenged, but the appeal was denied with finality, and
later on the order and the writ of execution was questioned in a separate petition for certiorari
and prohibition, then there is no forum shopping since it involves different cause of action and
relief prayed for.

6. Q: What are the effects of forum shopping:

A: 1) Summary dismissal of the case;

2) Contempt;
3) Administrative liability of the counsel

7. Q: Does forum shopping exist when the party files a Petition for Certiorari questioning
the jurisdiction of the CIAC and Petition for Review under Rule 43 praying that the
decision of CIC be set aside for want of jurisdiction?

A: Yes, forum shopping is present as the elements are present since the parties are the same,
and there is similarity in the relief being demanded which is to nullify the decision of CIC for lack
of jurisdiction. (Villamor and Victolero Construction Company vs. Sogo Realty and Development
Corporation, G.R. No. 2118771, June 3, 2019)

8. Q: Is forum shopping present in case of annulment of Real Estate Mortgage and action
for injunction invoking the nullity of Real Estate Mortgage?

A: There can be no determination of the validity of the extrajudicial foreclosure and the
propriety of injunction in the Injunction Case without necessarily ruling on the validity of
the REM, which is already the subject of the Annulment Case. The identity of the causes of
action in the two cases entails that the validity of the mortgage will be ruled upon in both,
and creates a possibility that the two rulings will conflict with each other. This is
precisely what is sought to be avoided by the rule against forum shopping. (FCD
Pawnshop and Merchandising Company, Fortunato C. Dionisio, Jr., And Franklin C.
Dionisio, Vs. Union Bank Of The Philippines, Atty. Norman R. Gabriel, Atty. Engracio M.
Escasinas, Jr., And The Registry Of Deeds For Makati City, January 18, 2017, G.R. No.
207914, Del Castillo, J.)

9. Q: Does forum shopping exist in case of a pending civil/criminal case and

administrative case:

A: NO. "The settled rule is that criminal and civil cases are altogether different from
administrative matters, such that the disposition in the first two will not inevitably govern the third
and vice versa." In the context of the case at bar, matters handled by the IC are delineated as
either regulatory or adjudicatory, both of which have distinct characteristics. (Malayan Insurance
Co., Inc., Yvonne S. Yuchengco, Atty. Emmanuel G. Villanueva, Sonny Rubin, Engr. Francisco
Mondelo, And Michael Requijo, Vs. Emma Concepcion L. Lin, G.R. No. 207277, January 16,
2017, Del Castillo, J.)

b) Certification of Non- Forum Shopping

1. Q: When is certification of non-forum shopping required?

A: All initiatory pleadings must contain a certification against forum shopping under Sec. 5, Rule
7

2. Q: Is certification of non-forum shopping required in case of a petition for issuance of

writ of possession?

A: NO. The Honorable Supreme Court has already ruled that a certificate against forum
shopping is not a requirement in an ex- parte petition for the issuance of a writ of possession.
16

An ex parte petition for the issuance of writ of possession is not a complaint or other initiatory
pleading as contemplated in Section 5, Rule 7 of the 1997 Rules of Civil Procedure. (Angelina
De Guzman, et al. Vs. Gloria A. Chico G.R. No. 195445. December 7, 2016)

3. Q: Who shall sign the certification of non-forum shopping?

A: As a rule, the party shall sign the certification against forum shopping since he has the
knowledge of the existence of cases filed before the court as clearly mandated by Sec. 5, Rule
7 of the 1997 Rules on Civil Procedure

4. Q: Can the counsel sign the certification of non-forum shopping?

A: Yes, If a petitioner is unable to sign a certification for reasonable or justifiable

reasons, she must execute an SPA designating her counsel of record to sign on her
behalf. (Mary Louise R. Anderson Vs. Enrique Ho, G.R. No. 172590.  January 7, 2013)

5. Q: Can the court motu propio dismiss the case in case of failure to comply with the
certification against forum shopping?

A: No motu propio dismissal in case of failure to comply with the certification against forum
shopping since it requires notice and hearing under Sec. 5, Rule 7, and it is not one of the
grounds mentioned under Sec. 1, Rule 9 on motu propio dismissal.

6. Q: What is the effect of failure to comply with certification against forum shopping?

A: Certification against forum shopping is a condition precedent in all initiatory pleadings, and
failure to comply is a ground for failure to comply with a condition precedent which can be raised
as an affirmative defense in the answer under Sec. 12, Rule 8, which may be a ground for the
dismissal of the action without prejudice.

7. Q: What is the nature of the dismissal? What is the remedy?

A: The nature of the dismissal is without prejudice to the refilling of the action under Sec.
13, Rule 15: Remedy is refilling of the action since the certification against forum
shopping does not fall under paragraph (f) (h) & (1) of the said rules which can be the
subject of appeal.

8. Q: Can the pleading be amended in case there is failure to comply with certification
against forum shopping?

A: As a general rule, under Sec. 5, Rule 7 amendment of the pleading is not allowed in case of
failure to comply with certification against forum shopping, except in case of substantial
compliance or the presence of special circumstances or compelling reasons.

9. Q: Is it required to state in the refiled complaint of the fact of prior dismissal of the
case without prejudice under Sec. 1, Rule 17?

A: No. There is no need to state in the certification of non- forum shopping in a subsequent re-
filed complaint the fact of the prior filing and dismissal of the former complaint. (Bendicto vs. Lac-
son, et al., G.R. No. 141508, May 5, 2010)

10. Q: What are the additional contents of the pleading?

A: Every pleading stating a party’s claims or defenses shall, in addition to those mandated by
Section 2, Rule 7, state the following:

(a) Names of witnesses who will be presented to prove a party’s claim or defense;

(b) Summary of the witnesses’ intended testimonies, provided that the judicial affidavits
of said witnesses shall be attached to the pleading and form an integral part thereof. Only
witnesses whose judicial affidavits are attached to the pleading shall be presented by the parties
during trial. Except if a party presents meritorious reasons as basis for the admission of
17

additional witnesses, no other witness or affidavit shall be heard or admitted by the court; and

(c) Documentary and object evidence in support of the allegations contained in

the pleading. (Sec. 6, Rule 7)

11. Q: Can the certification against forum shopping be notarized by the clerk of court?

A: NO. The Honorable Supreme Court said that the notarization of verifications and
certifications on non-forum shopping is not part of a clerk of court’s daily official functions since
their work load is already heavy, and such notarization of private documents can be done by a
commissioned notary public.

VII. MANNER OF MAKING ALLEGATIONS (RULE 8)

1. Q: What is the manner of making allegation in general in a pleading?

A: Every pleading shall contain the following:

a) A methodical and logical form, a plain, concise and direct statement of the ultimate
facts;
b) It shall include the evidence on which the party pleading relies for his or her claim or
defense, as the case may be.

2. Q: How to make allegation in the pleading based on law?

A: If a cause of action or defense relied on is based on law, the pertinent provisions thereof
and their applicability to him or her shall be clearly and concisely stated. (Sec. 1, Rule 8)

3. Q: How to allege fraud or mistake in the pleading?

A: In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be
stated with particularity.

4. Q: How to allege malice, intent, knowledge, or other condition of mind of a person in

the pleading?

A: Malice, intent, knowledge, or other condition of the mind of a person may be averred
generally. (Sec. 5, Rule 8)

5. Q: How to allege judgment in a pleading?

A; In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial

tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting
forth matter showing jurisdiction to render it. An authenticated copy of the judgment or decision
shall be attached to the pleading. (Sec. 6, Rule 8)

6. Q: What is the requirement in case of allegations of actionable document in the

pleading?

A: It must be denied under oath and in good faith, otherwise the genuineness and due
execution of the actionable document (not of its contents) is deemed impliedly admitted under
Sec. 8, Rule 8.

7. Q: What are the exceptions?

A: 1) When the person denying is not a party to the actionable document (Possible source
of a bar problem)

2) In case of refusal to comply with the Order of production.

8. Q: What is the remedy of the movant?

18

A: In case of failure to deny the allegation of actionable document under oath, the movant may
file a Motion for judgment on the pleadings under Rule 34, since the answer does not tender an
issue.

TAKE NOTE: Examine who is the one filing the answer- If party to the actionable document
then answer must be under oath- otherwise NO.

9. Q: How to make an absolute denial of a material allegation in the pleading?

A: A defendant must specify each material allegation of fact the truth of which he or she does
not admit and, whenever practicable, shall set forth the substance of the matters upon which he
or she relies to support his or her denial. (Absolute denial)

10. Q: How to make a partial denial of a material allegation in the pleading?

A: Where a defendant desires to deny only a part of an averment, he or she shall specify so
much of it as is true and material and shall deny only the remainder. (Partial denial)

11. Q: How to make a denial for want of knowledge of a material allegation in the pleading
under the new rules?

A: Where a defendant is without knowledge or information sufficient to form a belief as to the

truth of a material averment made to the complaint, he or she shall so state, and this shall have
the effect of a denial. (Denial by disavowal of knowledge) (Sec. 10, R.8)

12. Q: What are the other affirmative defenses which can be raised in the answer?

A: A defendant shall raise his or her affirmative defenses in his or her answer, which shall be
limited to the reasons set forth under Section 5(b), Rule 6, and the following grounds:

1) That the court has no jurisdiction over the person of the defending party;
2) That venue is improperly laid;
3) That the plaintiff has no legal capacity to sue;
4) That the pleading asserting the claim states no cause of action; and
5) That a condition precedent for filing the claim has not been complied with.

13. Q: What is the remedy in case for denial of the affirmative defenses?

A: Affirmative defenses, if denied, shall not be the subject of a motion for reconsideration or
petition for certiorari, prohibition or mandamus, but may be among the matters to be raised
on appeal after a judgment on the merits. (Sec. 12(e), Rule 8)

VIII. EFFECT OF FAILURE TO PLEAD

a) Ground not raised deemed waived

1. Q: What are the grounds which if not raised not deemed waived or grounds for the
motu propio dismissal of the action?

A: -Lack of jurisdiction over the subject matter, litis pendentia, res judicata. Prescription:

-Also, these are the exceptions to Omnibus motion rule (Sec. 9, Rule 15)

b) Order/Judgment by Default

2. Q: What is the effect in case of failure to file the answer within the period prescribed by
the rules?

A: Defendant may be declared in default by the court upon motion of the plaintiff.
19

3. Q: What are the effects of default?

A: A defendant declared in default shall have the following effects:

1) He shall lose his standing in court and cannot participate in the trial of the case;
2) he is entitled to subsequent notice of hearings;
3) He can be a witness to the case;
4) He is entitled to receive copy of the judgment, order and substantially amended
pleadings.

4. Q: What are the remedies available?

A: 1) Motion to lift Order of default- verified- grounded on FAME- with affidavit merit, in case
of denial petition for certiorari under Rule 65 since the Order of default and the order
denying the motion to lift order of default are interlocutory orders and not appealable
under sec. 1 (b) of Rule 41. (KEY WORDS IN THE ANSWER)

2) Motion to Admit Answer with attached answer

TAKE NOTE: The above remedies must be made before the rendition of judgment by default:

5. Q: What is the effect of partial default?

A: When a pleading asserting a claim states a common cause of action against several
defending parties, some of whom answer and the others fail to do so, the court shall try the case
against all upon the answers thus filed and render judgment upon the evidence presented.
(Sec. 3, Rule 9)

6. Q: What is/are the possible remedy/ies in case of judgment by default?

A: Before finality:

1) Motion to set aside judgment by default or Motion for New Trial (Rule 37);
2) Motion for Reconsideration (Rule 37);

After finality:

1) Petition for relief from judgment (Rule 38);

2) Petition for annulment of judgment (Rule 47);
3) Petition for certiorari (Rule 65)
4) Collateral attack

7. Q: What are the cases when default is not available?

A: a) In an action for annulment of marriage; or

b) Declaration of nullity of marriage; or
c) Action for legal separation.
d) Small claims cases
e) Environmental cases
f) Forcible Entry and Unlawful Detainer cases under the Rules on Summary Procedure.

8. Q: What is the effect if the defendant failed to file an Answer under the Rules on
Summary procedure?

A: Section 6 [of the Rules on Summary Procedure] is clear that in case the defendant failed to
file his answer, the court shall render judgment, either motu proprio or upon plaintiff’s
motion, based solely on the facts alleged in the complaint and limited to what is prayed
for. The failure of the defendant to timely file his answer and to controvert the claim against him
constitutes his acquiescence to every allegation stated in the complaint. Logically, there is
nothing to be done in this situation except to render judgment as may be warranted by the facts
alleged in the complaint. (Fairland Knitcraft Corporation Vs. Arturo Loo Po G.R. No. 217694.
January 27, 2016)
20

9. Q: Can the court motu propio declare a defendant in default?

A: No. Sec. 3, Rule 9 requires that a motion in writing is required in order to declare the
defendant in default.

10. Q: Is there any exception?

A: In environmental cases, the court in itself may declare defendant in default for failure to
file his answer, and upon motion allow the plaintiff to present evidence ex-parte. (Sec. 15, Rule
II, Rules on Environmental Cases).

11. Q: What is the effect in case of failure to file an answer to an Interrogatories?

A: Failure to file an Answer to an Interrogatories under Rule 25, a judgment by default

maybe rendered by the court under Sec. 5, Rule 29.

IX. AMENDMENT

1. Q: Is service of summons required in case of amendment of the pleading?

A: Service of summons is required only in case of an amendment when the court has not yet acquired
jurisdiction over the person of the defendant, nor filed his answer, neither he voluntarily submitted to the
jurisdiction of the court. Vlason Enterprises Corporation vs. Court of Appeals, 310 SCRA 26)

2.. Q: Can a pleading be amended if there is a motion to dismiss filed?

A: Yes. Amendment can be done as a matter of right even if there is a motion to dismiss that
was filed or it is already submitted for resolution since a Motion to dismiss is not a pleading,
neither a responsive pleading.

3. Q: Can amendment be made to confer jurisdiction?

A: Yes, amendment can be made in order to confer jurisdiction before the filing of a responsive
pleading.

4.Q: Is certification against forum shopping required in case of amendment?

A: Certification of against forum shopping is required only in case of substantial amendment.

5. Q: What are the limitations on the amendment as a matter of discretion or after the
filing of the answer when?

A: 1. It should not substantially change the cause of action;

2. It shall not alter the theory of the case; or
3. It was made to delay the action.

6. Q: How will an amendment by leave of court be made?

A: Except as provided in the next preceding Section, substantial amendments may be made only
upon leave of court.

7. Q: What are the grounds for the denial of leave court by the court under the amended
rules?

A: Such leave shall be refused by the court if it appears that:

1) The motion was made with intent to delay;

2) It is intended to confer jurisdiction on the court; or
2) The pleading stated no cause of action from the beginning which could be amended.
(Sec. 3, Rule 10)
21

** 8. Q: Is amendment of the pleading required to conform or authorize presentation of

evidence?

A: No. as expressly mandated by the above sited rule that, when issues not raised by the
pleadings are tried with the express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. No amendment of such pleadings
deemed amended is necessary to cause them to conform to the evidence. (Sec. 5, Rule
10)

9. Q: What are the effects of the amendment of a pleading?

A: An amendment of a pleading shall have the following effects, to wit:

1) It supersedes the pleading that it amends;

2) Admissions in superseded pleadings may be offered in evidence against the pleader;
and
3) Claims or defenses alleged therein not incorporated in the amended pleading shall be
deemed waived.

10. Q: Distinguish amended pleading and supplemental pleading? (2pts.)

AMENDED PLEADING SUPPLEMENTAL PLEADING

a) The filing of an amended pleading may either a) the filing of a supplemental pleading is
be as a matter of right or with leave of court; always with leave of court;

b) Amended pleading alleges facts that occurred b) supplemental pleading alleges facts
before the filing of the original pleading; occurring after the filing of the original pleading;

c) Amended pleading supersedes the original
pleading;
c) supplemental pleading does not supersede
the original pleading but assumes that the
original pleading is to stand. (Rule 10, Secs. 2, 3
and 6; Delbros Hotel Corp. vs. IAC, et al., G.R.
No. L-72566, April 12, 1988)

X. PERIOD TO FILE RESPONSIVE PLEADING

1. Period to file responsive pleading:

1) Answer to the complaint- 30 calendar days from receipt of the Summons

2) Answer of a foreign private juridical entity summons Is served to government
designated to received It - 60 calendar days from receipt of the summons
1

3) Answer to amended complaint as a matter of right – 30 calendar days after

service of the copy; OR 15 calendar days if it is not a matter of right.
4) Answer to counterclaim or crossclaim -20 calendar days from service
5) Answer to 3rd/4th party complaint- same period to file the answer to a complaint;
6) Reply- 15 calendar days from service of the pleading responded to.
7) Answer to supplemental complaint- 20 calendar days from notice of the order
admitting the same;

2. Q: When is a motion for extension of time to file answer allowed?

A: Section 11. Extension of time to file an answer. — A defendant may, for meritorious
reasons, be granted an additional period of not more than thirty (30) calendar days to file an
answer. A defendant is only allowed to file one (1) motion for extension of time to file an
answer.”

3. Q: When it is not allowed?

22

A: A motion for extension to file any pleading, other than an answer, is prohibited and
considered a mere scrap of paper. The court, however, may allow any other pleading to be
filed after the time fixed by these Rules. (11a)

Q: Is a motion for extension of time to file pleadings allowed under the Rules on
Environmental Cases?

A: No, motion for extension of time to file pleading is one of the prohibited motions under the
Rules on Environmental Cases, except filing of the answer not to exceed 15 days. (Sec. 2 (c),
Rule 2, Part II)

XI. MOTION FOR BILL OF PARTICULARS

1. Q: When to file a motion for bill of particulars under the above-stated rule?

A: Before responding to a pleading, a party may move for a definite statement or for a bill of
particulars of any matter, which is not averred with sufficient definiteness or particularity, to
enable him or her properly to prepare his or her responsive pleading.

2. Q: What are the effects of non-compliance of the order of the court?

A: If the order is not obeyed, or in case of insufficient compliance therewith, the court may:

1) Order the striking out of the pleading or the portions thereof to which the order was
directed; or
2) Make such other order as it deems just. (Sec. 4 Rule 12)

3. Q: What is the remedy in case of denial of a motion for bill of particulars? (Bar
Examination 2018)

A: After service of the bill of particulars or of a more definite pleading, or after notice of denial of
his or her motion, 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 t3han
five (5) calendar days in any event. (Sec. 5, Rule 12)

4. Q: Is a motion for bill of particulars a part of a pleading?

A: Yes, a bill of particulars forms part of the pleading for which it is intended to be. (Sec. 6, Rule
12)

5. Q: What is the remedy in case of denial of the motion for bill of particulars?

A: In case of denial, file the responsive pleading within the balance of the period he is entitled
under the rules.

XII. MODES OF SERVICE OF PLEADINGS/MOTIONS (RULE 13)

1. Q: What is the manner of filing of pleadings and other court submissions?

A: The filing of pleadings and other court submissions shall be made by:

(a) Submitting personally the original thereof, plainly indicated as such, to the court;
(b) Sending them by registered mail;
(c) Sending them by accredited courier; or
(d) Transmitting them by electronic mail or other electronic means as may be authorized by
the Court in places where the court is electronically equipped. (Sec. 3, Rule 13)

2. Q: What are the modes of service of pleadings, motions, notices, orders, etc.?

A: Pleadings, motions, notices, orders, judgments, and other court submissions shall be served:
23

1) Personally; or
2) By registered mail;
3) By accredited courier;
4) Electronic mail;
5) Facsimile transmission, or
6) Other electronic means as may be authorized by the Court, or as provided for in
international conventions to which the Philippines is a party. (Sec. 5, Rule 13)

3. Q: How will personal service of court submissions be made?

A: Court submissions may be served personally by:

1) Personal delivery of a copy to the party or to the party’s counsel, or to their authorized
representative named in the appropriate pleading or motion; or

2) By leaving it in his or her office with his or her clerk, or with a person having charge
thereof.

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, then 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. (Sec. 6, Rule 13)

4. Q: How will substituted service of pleadings, motion etc., be made?

A: If service of pleadings, motions, notices, resolutions, orders and other papers cannot be
made under the two preceding sections, 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. (Sec. 8, Rule 13)

5. Q: How will service by electronic means and facsimile made?

A: Service by electronic means and facsimile shall be made if the party concerned consents
to such modes of service.

Service by electronic means shall be made by sending an e-mail to the party’s or

counsel’s electronic mail address, or through other electronic means of transmission as the
parties may agree on, or upon direction of the court.

Service by facsimile shall be made by sending a facsimile copy to the party’s or counsel’s
given facsimile number.” (Sec. 9, Rule 13)

*****6. Q: What is the rule on presumptive service of notice of court setting?

A: There shall be presumptive notice to a party of a court setting if such notice appears on the
records to have been mailed at least twenty (20) calendar days prior to the scheduled date of
hearing and if the addressee is from within the same judicial region of the court. (Sec. 10, Rule
13)

*****7. Q: How will conventional service of orders, pleadings, and other documents
made?

A: Notwithstanding the foregoing, the following orders, pleadings, and other documents must be
served or filed personally or by registered mail when allowed, and shall not be served or filed
electronically, unless express permission is granted by the Court:

(a) Initiatory pleadings and initial responsive pleadings, such as an answer;

(b) Subpoenae, protection orders, and writs;
(c) Appendices and exhibits to motions, or other documents that are not readily
amenable to electronic scanning may, at the option of the party filing such, be filed and served
conventionally; and
24

(d) Sealed and confidential documents or records. (Sec. 14, Rule 13)

8. Q: How to prove personal service of pleading or court submission?

A: Proof of personal service shall consist of a written admission of the party served, or the
official return of the server, or the affidavit of the party serving, containing a statement of the
date, place, and manner of service.

9. Q: How to prove service of pleading or court submission by ordinary mail?

A: In case of service by ordinary mail its proof shall consist of an affidavit of the person mailing
stating the facts showing compliance with Section 7 of this Rule.

10. Q: How to prove service of pleading or court submission by registered mail?

A: Proof shall be made by the affidavit mentioned above and the registry receipt issued by the
mailing office.

11. Q: How to prove service of pleading or court submission by accredited courier

service?

A: Proof of service of pleading or court submission by accredited courier service shall be proven
by:

1) An affidavit of service executed by the person who brought the pleading or paper to
the service provider;
2) It must be with the courier’s official receipt or document tracking number.

12. Q: How to prove service of pleading or court submission by electronic mail, facsimile,
or other authorized electronic means of transmission?

A: Proof shall be made by an affidavit of service executed by the person who sent the e-mail,
facsimile, or other electronic transmission, together with a printed proof of transmittal. (Sec. 17,
Rule 13)

13. Q: What are the actions where Lis pendens is proper?

A: Relative thereto, a notice of lis pendens is proper in the following actions and their
concomitant proceedings:

(a) an action to recover possession of real estate;

(b) an action to quiet title thereto;
(c) an action to remove clouds thereon;
(d) an action for partition; and
(e) any other proceedings of any kind in Court directly affecting the title to the land or the
use or occupation thereof or the buildings thereon.

Thus, a notice of lis pendens is only valid and effective when it affects title over or right
of possession of a real property. (Vashdeo Gagoomal vs. Spouses Ramon and Natividad
Villacorta, G.R. No. 192813, January 18, 2012)

TAKE NOTE: It is not applicable in land registration cases

14. Q: What are the grounds for cancellation of lis pendens?

A: a) It is intended for the purpose of molesting the adverse party;

b) It is not necessary to protect the rights of the party who caused it to be annotated
c) Upon the dismissal/termination of the case.

*Other recognized grounds for cancellation:

25

(a) there are exceptional circumstances imputable to the party who caused the
annotation;
  (b) the litigation was unduly prolonged to the prejudice of the other party because of
several continuances procured by petitioner;
  (c) the case which is the basis for the lis pendens notation was dismissed for non-
prosequitur on the part of the plaintiff; or
(d) judgment was rendered against the party who caused such a notation. (Spouses
Ramon and Ligaya Gonzales Vs. Marmaine Realty Corporation G.R. No. 214241. January 13,
2016)

Basis of the answer: Sec. 14. Rule 13 & Jurisprudence

15. Q: What is the remedy in case of denial of the Notice of Lis pendens by the Register
of Deeds?

A: Aggrieved party may appeal the Order to the Land Registration Authority En Consulta within
five (5) days as provided by Sec. 117 of P.D. 1529 Property Registration Decree

XIII. SUMMONS (RULE 14)

1. Q: When can the court issue summons?

A: Unless the complaint is on its face dismissible under Section 1, Rule 9, 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.

2. Q: What are the factors to be considered to determine valid service of summons?

A: To determine whether there was a valid service of summons, determine the nature of the
action whether in personam, in rem and quasi-in rem, and the mode of service of the
summons is valid.

3. Q: What are the modes of service of summons in an action in personam?

A: Mode of service of summons in an action in personam: Personal, substituted, if the identity or

whereabouts is unknown BY PUBLICATION.

4. Q: What is the mode of service of summons in case of an action in rem?

A: In case an action is in rem, summons shall be served through publication, and service to the
defendant is only for compliance of due process.

5. Q: What is the mode of service of summons in an action Quasi-in rem action?

A: In case an action is quasi- in rem, summons shall be served through publication, and service
to the defendant is only for compliance of due process.

*** 6. Q: Who shall serve the summons?

A: The summons may be served by the following:

1) Sheriff;
2) His or her deputy; or
3) Other proper court officer; and
4) In case of failure of service of summons by them, the court may authorize the
plaintiff - to serve the summons - together with the sheriff.

** 7. Q: Who shall serve the summons to be served outside of the judicial region of the
court?

A: In cases where summons is to be served outside the judicial region of the court where the
26

case is pending, the plaintiff shall be authorized to cause the service of summons.

8. Q: What are the requirements in case the plaintiff is a juridical entity?

A: If the plaintiff is a juridical entity, it shall notify the court, in writing:

1) The name of its authorized representative therein,

2) Attaching a board resolution or secretary’s certificate thereto, as the case may be;
3) It shall state that such representative is duly authorized to serve the summons on
behalf of the plaintiff.

*** 9. Q: What are the effects in case the plaintiff misrepresents in the service of
summons?

A: If the plaintiff misrepresents that the defendant was served with summons, and it is later
proved that no summons was served, the case shall be:

1) Dismissed with prejudice;

2) The proceedings shall be nullified; and
3) The plaintiff shall be meted appropriate sanctions.

10. Q: What is the rule in case summons is returned without being served?

A: If summons is returned without being served on any or all the defendants, the court shall
order the plaintiff to cause the service of summons by other means available under the Rules.

11. Q: What is the sanction in case of failure to comply with the order of the court?

A: Failure to comply with the order shall cause the dismissal of the initiatory pleading without
prejudice. (Sec. 3, Rule 14)

12. Q: How will service of summons on the person of the defendant be made?

A: Whenever practicable, the summons shall be served by:

1) Handing a copy thereof to the defendant in person and informing the defendant that
he or she is being served; or,

2) If he or she refuses to receive and sign for it, by leaving the summons within the view
and in the presence of the defendant. (Sec. 5, Rule 14)

****** 13. Q: How will substituted service of summons be made?

A: If, for justifiable causes, the defendant cannot be served personally after at least three (3)
attempts on two (2) different dates, service may be effected:

(a) By leaving copies of the summons at the defendant's residence to a person at least
eighteen (18) years of age and of sufficient discretion residing therein;

(b) By leaving copies of the summons at the defendant's office or regular place of
business with some competent person in charge thereof. A competent person includes, but
is not limited to, one who customarily receives correspondences for the defendant;

(c) By leaving copies of the summons, if refused entry upon making his or her
authority and purpose known, with any of the officers of the homeowners’ association or
condominium corporation, or its chief security officer in charge of the community or the
building where the defendant may be found; and

(d) By sending an electronic mail to the defendant’s electronic mail address, if allowed
by the court.

14. Q: To whom summons shall be served in case of an entity without juridical

personality?
27

A: When persons associated in an entity without juridical personality are sued under the name
by which they are generally or commonly known, service may be effected upon:

1) All the defendants by serving upon any one of them; or

2) Upon the person in charge of the office or place of business maintained in such name.

15. Q: Does it bind to person who severed his relationship with the entity before the
action?

A: No. Service shall not bind individually any person whose connection with the entity has, upon
due notice, been severed before the action was filed. (Sec. 7, Rule 14)

16. Q: What is the rule in case of service of summons to spouses?

A: When spouses are sued jointly, service of summons should be made to each spouse
individually. (Sec. 11, Rule 14)

****** 17. Q: To whom summons shall be served in case of domestic juridical entity?

A: When the defendant is a corporation, partnership or association organized under the laws of the
Philippines with a juridical personality, service may be made

a) on the president,
b) managing partner,
c) general manager,
d) corporate secretary,
e) treasurer, or
f) or in-house counsel of the corporation wherever they may be found, or
g) in their absence or unavailability, on their secretaries.
h) 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.

i) In case the domestic juridical entity is under receivership or liquidation, service of

summons shall be made on the receiver or liquidator, as the case may be.

j) Should there be a refusal on the part of the persons above-mentioned to receive summons
despite at least three (3) attempts on two (2) different dates, service may be made electronically, if
allowed by the court, as provided under Section 6 of this Rule. (Sec. 12, Rule 14)

** 18. Q: What is the rule in case of service of summons by the lawyer?

A: Where the summons is improperly served and a lawyer makes a special appearance on
behalf of the defendant to, among others, question the validity of service of summons, the
counsel shall be deputized by the court to serve summons on his or her client. (Sec. 13, Rule
14)

***** 19. Q: To whom summon shall be served in case of foreign juridical entity doing
business in the Philippines?

A: When the defendant is a foreign private juridical entity which has transacted or is doing
business in the Philippines, as defined by law, service may be made on:

1) Its 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, agents, directors or trustees within the Philippines.

***** 20. Q: To whom summon shall be served in case of foreign juridical entity not
registered and no resident agent, but doing business in the Philippines?

A: If the foreign private juridical entity is not registered in the Philippines, or has no resident
28

agent but has transacted or is doing business in it, as defined by law, such service may, with
leave of court, be effected outside of the Philippines through any of the following means:

(a) By personal service coursed through the appropriate court in the foreign country with
the assistance of the department of foreign affairs;

(b) 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;

(c) By facsimile;
(d) By electronic means with the prescribed proof of service; or
(e) By such other means as the court, in its discretion, may direct. (Sec. 14, Rule 14)

** 21. Q: How will service of summons be effected in case of unknown defendant or his
whereabout is unknown?

A: In any action where the defendant is designated as an unknown owner, or the like, or
whenever his or her whereabouts are unknown and cannot be ascertained by diligent inquiry,
within ninety (90) calendar days from the commencement of the action, service may, by leave of
court, be effected upon him or her by publication in a newspaper of general circulation and in
such places and for such time as the court may order. (Sec. 16, Rule 14)

22. Q: Is service of summons by publication allowed in an action in personam if the

defendant’s whereabouts is unknown?

A: Yes, service of summons by publication in actions in personam is allowed considering that

the provision itself allow this mode in “any action”.

23. Q: How will extraterritorial service of summons be made?

A: When the defendant does not reside and is not found in the Philippines, and the action
affects the personal status of the plaintiff or relates to, or the subject of which is, property within
the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in
which the relief demanded consists, wholly or in part, in excluding the defendant from any
interest therein, or the property of the defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the Philippines by:
1) Personal service as under Section 6;
2) As provided for in international conventions to which the Philippines is a party; or
3) By publication in a newspaper of general circulation in such places and for such time
as the court may order,

24. Q: How will the summons be served to a defendant temporarily out of the
Philippines?

A: When any action is commenced against a defendant who ordinarily resides within the
Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out
of the Philippines, as under the preceding Section. (Sec. 18, Rule 14)

25. Q: Can the court in an action in personam acquire jurisdiction over the person of the
defendant who is temporarily out of the Philippines?

A: No, in an action in personam the defendant must be a resident of the Philippines, otherwise it
cannot be brought because jurisdiction over his person is essential to make a binding decision. Sps.
Domingo M. Belen and Dominga P. Belen, G.R. No. 175334, March 26, 2008)

26. Q: What is the rule on proof of service of summons?

A: The proof of service of a summons shall be:

1) Made in writing by the server; and

29

2) It shall set forth the manner, place, and date of service;

3) It shall specify any papers which have been served with the process and the name of
the person who received the same; and
4) It shall be sworn to when made by a person other than a sheriff or his or her deputy.

27. Q: What is the proof of service of summons by electronic mail?

A: If summons was served by electronic mail it can be proved by:

1) A printout of said e-mail, with a copy of the summons as served; and

2) The affidavit of the person mailing, shall constitute as proof of service. (Sec. 21, Rule
14)

*** 28. Q: What is the effect of voluntary appearance of the defendant:

A: The defendant's voluntary appearance in the action shall be:

1) Equivalent to service of summons;

2) The inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall be deemed a voluntary appearance.
(Sec. 23, Rule 14)

Take Note: if the defendant is asking for an affirmative relief or action from the court by motion or
petition, except lack of jurisdiction over the subject matter of the case OR voluntarily appeared
without questioning the jurisdIction of the court, then it tantamount to voluntary appearance.

29. Q: Is service of summons to the respondent required in case of a petition for habeas
corpus?

A: No. Under Rule 102 of the Rules of Court or A.m. No. 03-04-04-SC, service of summons, to
begin with, is not required in a habeas corpus petition. As held in Saulo v. Cruz, 105 Phil. 315
(1959), a writ of habeas corpus plays a role somewhat comparable to a summons, in ordinary
civil actions, in that, by service of said writ, the court acquires jurisdiction over the person of the
respondent. (Ma. Hazelina A. Tujan-Militante In Behalf of The Minor Criselda M. Cada vs.
Raquel M. Cada-Deapera (G.R NO. 210636, July 128, 2014)

30. Q: Is service of summons to the respondent required in case of a petition for

certiorari, prohibition, mandamus, and quo warranto?

A: No. it is expressly stated under Section 4 of Rule 46 that, the court shall acquire jurisdiction
over the person of the respondent by the service on him of its order or resolution indicating its
initial action on the petition or by his voluntary submission to such jurisdiction.

XIV. MOTIONS (RULE 15)

1. Q: Is a Motion, or motion to dismiss, reconsideration, new trial etc. a pleading? (2006

Bar exam)

A. No, by express provision of Sec. 1, Rule 15, a motion is an application for a relief other
than by a pleading.

2. Q: What is the requirement of a motion?

A: All motions shall be in writing except those made in open court or in the course of a hearing
or trial.

3. Q: What is the rule in case of an oral motion?

A: A motion made in open court or in the course of a hearing or trial should immediately be
resolved in open court, after the adverse party is given the opportunity to argue his or her
opposition thereto.
30

4. Q: What is evidence on motion?

A: When a motion is based on facts not appearing on record, the court may hear the matter on
affidavits or depositions presented by the respective parties, but the court may direct that the
matter be heard wholly or partly on oral testimony or depositions.

5. Q: What are the non-litigious motions under the amended rules?

A: The non-litigious motions under the amended rules shall include?

a) Motion for the issuance of an alias summons;

b) Motion for extension to file answer;
c) Motion for postponement;
d) Motion for the issuance of a writ of execution;
e) Motion for the issuance of an alias writ of execution;
f) Motion for the issuance of a writ of possession;
g) Motion for the issuance of an order directing the sheriff to execute the final certificate
of sale; and
h) Other similar motions. (Sec. 4, Rule 15)

6. Q: What are the litigious motions under the amended rules?

A: Litigious motions under the amended rules include:

1) Motion for bill of particulars;

2) Motion to dismiss;
3) Motion for new trial;
4) Motion for reconsideration;
5) Motion for execution pending appeal;
6) Motion to amend after a responsive pleading has been filed;
7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of demolition;
9) Motion for intervention;
10) Motion for judgment on the pleadings;
11) Motion for summary judgment;
12) Demurrer to evidence;
13) Motion to declare defendant in default; and
14) Other similar motions. (Sec. 5, Rule 15)

7. Q: When can a hearing on the motion be conducted?

A: The court may, in the exercise of its discretion, and if deemed necessary for its resolution,
call a hearing on the motion.

8. Q: To whom the notice of hearing be addressed?

A: 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)

9. Q: What is the rule on written motion?

A: No written motion shall be acted upon by the court without proof of service thereof, pursuant
to Section 5(b) hereof. (Sec. 7, Rule 15)

10. Q: What are the effects of failure to comply with Secs. 6 & 7 of Rule 15?

A: Failure to comply with the requirements mandated by Secs. 5 and 6 of Rule 15 has the
following effects:

a) It is considered as a mere worthless piece of paper;

b) The clerk of court has no right to receive;
c) The court has no right to act upon;
31

d) It is considered as a mere pro-forma motion;

e) It is considered as not filed;
f) It produces no legal effect;
g) It is a ground for the denial of the motion;
h) It presents no question which the court could decide;
i) It will not toll the running of prescriptive period to appeal or file pleadings.

11. Q: What is 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. (Sec. 9, Rule 15)

12. Q: What are the exceptions to the rule?

A: Lack of jurisdiction, litis pendentia, barred by prior judgment, and prescription. (Sec. 1, Rule
9)

*** 13. Q: What are the prohibited motions under Rule 15?

A: The following motions shall not be allowed:

(a) Motion to dismiss except on the following grounds:

1) That the court has no jurisdiction over the subject matter of the claim;
2) That there is another action pending between the same parties for the same
cause; and
3) That the cause of action is barred by a prior judgment or by the statute of
limitations;

(b) Motion to hear affirmative defenses;

(c) Motion for reconsideration of the court’s action on the affirmative defenses;
(d) Motion to suspend proceedings without a temporary restraining order or injunction
issued by a higher court;
(e) Motion for extension of time to file pleadings, affidavits or any other papers, except a
motion for extension to file an answer as provided by Section 11, Rule 11; and
(f) Motion for postponement intended for delay, except if it is based on acts of God, force
majeure or physical inability of the witness to appear and testify. (Sec. 12, Rule 15)

14. Q: Distinguish litis pendentia and res judicata?

LITIS PENDENTIA RES JUDICATA

a) In litis pendentia, both cases have identical a) in res judicata, one of the case has already
parties, subject matter and cause of action which been decided with finality on the merits.
are still pending; ;

b) In litis pendentia, the motion to dismiss can be b) In res judicata, the first case which was
filed in either of the two (2) suits pending. decided bars the filing of a second case and the
motion to dismiss can be filed in the subsequent
case;

15. Q: What are the grounds where the dismissal is with prejudice?

A: a) That the cause of action is barred by prior judgment or by statute of limitation;

b) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished;
c) That the claim on which the action is founded is unenforceable under the provisions of
the statute of frauds. Sec. 13, Rule 15)
.
16. Q: What is the available remedy in case of dismissal with prejudice?

A: The remedy is appeal since the order of dismissal is a final order and an adjudication on the
32

merits which bars the refilling of the action.

17. Q: What are the grounds where the dismissal of the action is without prejudice?

A: (a) That the court has no jurisdiction over the person of the defending party;
(b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between the same parties for the same cause;
(f) That the pleading asserting the claim states no cause of action;
(g) That a condition precedent for filing the claim has not been complied with.

18. Q: What is the remedy in case of dismissal without prejudice?

A: The proper remedy in case of dismissal of the action on grounds other than paragraphs (g),
(h) and (i) of Rule 16 is the refilling of the action or amendment of the pleading as a matter of
right depending on the grounds.

19. Q: Will the prohibition on pro-forma motion applies to interlocutory order?

A: No. There is no rule which prohibits the filing of a pro forma motion against an
interlocutory order as the prohibition applies only to a final resolution or order of the
court. (San Juan, Jr. V. Cruz, G.R. No. 167321, July 31, 2006)(Philippine National Bank Vs.
The Intestate Estate Of Francisco De Guzman, Et Al. G.R. No. 182507, June 16, 2010.).

XV. DISMISSAL BY THE PLAINTIFF (RULE 17)

1. Q: When to make a voluntary dismissal?

A: A voluntary dismissal by the claimant by notice in Sec. 1 of this Rule, shall be made:

a) Before a responsive pleading; or

b) Before a motion for summary judgment is served; or,
c) If there is none, before the introduction of evidence at the trial or hearing.

2. Q: What is Two Dismissal Rule?

A: When the notice operates as an adjudication upon the merits when filed by a plaintiff
who has once dismissed an action in a competent court based on or including the same
claim. (Sec. 1, Rule 17)

3. Q: What is the rule on Dismissal due to the fault of the plaintiff?

A: Under Section 3, Rule 17 of the 1997 Rules of Civil Procedure, as amended, the failure
on the part of the plaintiff, without any justifiable cause, to comply with any order of the
court or the Rules, or to prosecute his action for an unreasonable length of time, may
result in the dismissal of the complaint either motu proprio or on motion by the
defendant. (Eloisa Merchandising, Inc. And Trebel International, Inc., Vs. Banco De Oro
Universal Bank and Engracio M. Escasinas, Jr., In His Capacity As Ex-Officio Sheriff Of The Rtc
Of Makati City, G.R. No. 192716, June 13, 2012)

4. What is the effect of the dismissal of the main action on the counterclaim?

A: In case of dismissal of the main action, the counterclaim whether permissive or

compulsory will not be dismissed and shall be prosecuted in the same case or in a
separate action. (Padilla vs. Globe Asiatique , Delfin Lee)

5. Will the dismissal under the rules applicable in case of counterclaim, cross- claim, or
third- party complaint?

A: The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or
third-party complaint.
33

XVI. PRE-TRIAL CONFERENCE (RULE 18)

1. Q: When to conduct pre-trial conference under the amended rules?

A: After the last responsive pleading has been served and filed, the branch clerk of court shall
issue, within five (5) calendar days from filing, a notice of pre-trial which shall be set not later
than sixty (60) calendar days from the filing of the last responsive pleading. (Sec. 1, Rule 18)

2. Q: What is the main purpose of pre-trial conference?

A: The court shall consider the following, to wit:

(a) The possibility of an amicable settlement or of a submission to alternative modes of

dispute resolution;
(b) The simplification of the issues;
(c) The possibility of obtaining stipulations or admissions of facts and of documents to
avoid unnecessary proof;
(d) The limitation of the number and identification of witnesses and the setting of trial
dates;
(e) The advisability of a preliminary reference of issues to a commissioner;
(f) The propriety of rendering judgment on the pleadings, or summary judgment, or of
dismissing the action should a valid ground therefor be found to exist;

(g) The requirement for the parties to:

1. Mark their respective evidence if not yet marked in the judicial affidavits of their
witnesses;
2. Examine and make comparisons of the adverse parties' evidence vis-a- vis the copies
to be marked;
3. Manifest for the record stipulations regarding the faithfulness of the reproductions and
the genuineness and due execution of the adverse parties' evidence;
4. Reserve evidence not available at the pre-trial, but only in the following manner:

i. For testimonial evidence, by giving the name or position and the nature of the
testimony of the proposed witness;
ii. For documentary evidence and other object evidence, by giving a particular
description of the evidence.

No reservation shall be allowed if not made in the manner described above.

(h) Such other matters as may aid in the prompt disposition of the action. (Sec. 2, Rule
18)

3. Q: Can the issue of lack of pre-trial conference be waived?

A: Issue on lack of pre-trial should be raised before the proceedings below, otherwise it
is deemed waived and cannot be raised for the first time on appeal.

4. Q: What is the effect of failure to appear on the part of the plaintiff on the scheduled
pre-trial conference?

A: When duly notified, the failure of the plaintiff and counsel to appear without valid cause when so
required, pursuant to the next preceding Section, shall cause the dismissal of the action. The
dismissal shall be with prejudice, unless otherwise ordered by the court.” (5a)

5 Q: What is the effect of failure to appear on the part of the defendant on the scheduled
pre-trial conference?

A: A similar failure on the part of the defendant and counsel shall be cause to allow the plaintiff to
present his or her evidence ex-parte within ten (10) calendar days from termination of the pre-trial,
34

and the court to render judgment on the basis of the evidence offered. (Sec. 5, Rule 18)

6. Q: What is the rule on court- annexed mediation?

A: After pre-trial and, after issues are joined, the court shall refer the parties for mandatory court-
annexed mediation.

The period for court-annexed mediation shall not exceed thirty (30) calendar days without
further extension. (Sec. 8, Rule 18)

** 7. Q: What is the rule on the conduct of judicial dispute resolution?

A: Only if the judge of the court to which the case was originally raffled is convinced that
settlement is still possible, the case may be referred to another court for judicial dispute
resolution.

8. Q: When to conduct judicial dispute resolution?

A: The judicial dispute resolution shall be conducted within a non-extendible period of fifteen
(15) calendar days from notice of failure of the court-annexed mediation.

9. Q: What is the effect if the judicial dispute resolution fails?

A: If judicial dispute resolution fails, trial before the original court shall proceed on the dates
agreed upon.

10. Q: What is the nature of the proceedings?

A: All proceedings during the court-annexed mediation and the judicial dispute resolution shall
be confidential. (Sec. 9, Rule 18)

*** 11. Q: When can the court submit the case for judgment after pre-trial?

A: The court shall, without prejudice to a party moving for judgment on the pleadings under Rule
34 or summary judgment under Rule 35can motu proprio include in the pre-trial order that the
case be submitted for summary judgment or judgment on the pleadings, without need of
position papers or memoranda, in the following instances:

1) When there be no more controverted facts;

2) When there be no more genuine issue as to any material fact;
3) An absence of any issue; or
4) Should the answer fail to tender an issue.

12. Q: When can the court render judgment?

A: In such cases, judgment shall be rendered within ninety (90) calendar days from termination
of the pre-trial.

*** 13. Q: Can the order be subject to appeal or certiorari?

A: No. The order of the court to submit the case for judgment pursuant to this Rule shall not be
the subject to appeal or certiorari.

*** 14. Q: Distinctions between pre-trial in civil action (Rule 18) and criminal action (Rule
118)?

Pre-Trial in Civil Cases Pre-Trial in Criminal Cases

(Rule 18) (Rule 118)

a) After the last responsive pleading has been a) Pre-trial in a criminal case is ordered by the
served and filed, the branch clerk of court upon court (Section 1, Rule 118 of the Rules of
order of the court shall issue, within five (5) Criminal Procedure).
calendar days from filing, a notice of pre-trial.”
35

(Section 1, Rule 18 of the 1997 Rules of Civil

Procedure, as amended).

b) Pre-trial in a civil case shall be conducted ffter
the last responsive pleading has been served and
filed, the branch clerk of court upon order of the
court shall issue, within five (5) calendar days
from filing, a notice of pre-trial which shall be set
not later than sixty (60) calendar days from the
filing of the last responsive (Section 1, Rule 18 of
the 1997 Rules of Civil Procedure, as amended).
c) Pre-trial in a civil case considers the possibility
of an amicable settlement as an important
objective (Section 2[a], Rule 18 of the 1997 Rules
of Civil Procedure, as amended).
b) In a criminal case, pre-trial is ordered by the
court after arraignment and within thirty (30) days
from the date the court has acquired jurisdiction
over the person of the accused (Section 1, Rule
118 of the Rules of Criminal Procedure).
c) Pre-trial in a criminal case does not include the
considering of the possibility of amicable
settlement of criminal liability as one of its
purposes, except when the law allows the case to
be compromised (Section 1, Rule 118 of the
Rules of Criminal Procedure).

d) In a civil case, the agreements and admissions
made in pre-trial are not required to be signed by
the parties and their counsels. They are contained
in the record of pre-trial and the pre-trial order
(Section 7, Rule 18 of the 1997 Rules of Civil
Procedure, as amended)
d) In a criminal case, all agreements or
admissions made or entered during the pre-trial
conference shall be reduced in writing and signed
by the accused and counsel; otherwise, they
cannot be used against the accused (Section 2,
Rule 118 of the Rules of Criminal Procedure).

e) The sanctions for non-appearance in a pre-trial e) The sanctions in a criminal case are imposed
conference are imposed upon the plaintiff which upon the counsel for the accused or the
will result to the dismissal of the case with prosecutor (Section 3, Rule 118 of the Rules of
prejudice unless otherwise ordered by the court to Criminal Procedure).
be without prejudice or the defendant in a civil
case which would result in the ex-parte
presentation of evidence by the plaintiff. (Section
5, Rule 18).

XVII. INTERVENTION (RULE 19)

1. Q: What is intervention?

A: It is an ancilliary remedy filed by a third person who has a legal interest over the success of
the plaintiff or the defendant, or both or who will greatly affected by the disposition of the
property subject matter of the action.

2. Q: What are the factors to be considered by the court in case of intervention?

A: The court in case of intervention shall consider the following, to wit:

1) Whether or not the intervention will unduly delay or prejudice the adjudication of the
rights of the original parties; and
2) Whether or not the intervenor’s rights may be fully protected in a separate proceeding.

3. Q: What is the remedy in case of denial of the Motion for Leave or Complaint in
intervention?

A: Appeal being an adjudication upon the merits or file a separate claim

4. Q: Can an unpaid creditor intervene in the settlement of the estate of the decedent
based on contingent claims?

A: Unpaid creditor CANNOT INTERVENE in case of settlement of the estate of the

decedent. The creditor must file a claim against the estate of the decedent under Rule 86.

5. Is a mere letter to intervene sufficient?

A: No. There must be a motion for leave to intervene and the attached pleading in intervention.
36

Mere letter to intervene is not allowed:

6. Q: When to intervene?

A: As a general rule, a motion to intervene may be filed at any time before rendition of
judgment by the trial court (Sec. 2, Rule 19), except when demanded by the higher of justice it
can be allowed beyond the prescribed period. (Eleazar P. Quinto and Gerino A. Tolentino, Jr.
vs. COMELEC, G.R. No. 189698, February 22, 2010)

7. Q: Is intervention allowed on appeal during the pendency of Petition for Review?

A: As a general rule, intervention cannot be made at the appeal stage where it is necessary to
protect some interest which cannot otherwise be protected, but and may be allowed for the
purpose of preserving the intervenor's right to appeal. (Navy Officer's Village Association, Inc.
(NOVAI) Vs. Republic of the Philippines G.R. No. 177168. August 3, 2015)

8. Q: Is motion for intervention allowed in cases falling under the Rules on Environmental
Cases?

A: Yes, motion for intervention is one of the allowed motions under Sec. 1, Rule 2, Part I of the
Rules on Environmental Cases.

9. Q: Differences between Intervention (Rule 19) and Interpleader (Rule 62).

Intervention Interpleader

a) Intervention is an ancillary action; a) Interpleader is an original action;

b) Intervention is proper in any of the four
situations mentioned in the Rule who has legal
interest therein;
c In a complaint in intervention, the defendants
are already original parties to the pending suit
d. Intervention can be filed where the original
action is pending;
e) The remedy in case of denial of intervention
is to appeal the denial being a final order or file a
separate action
b) Interpleader presupposes that the plaintiff has
no interest in the subject matter of the action or
has an interest therein which, in whole or in part,
is not disputed by the other parties to the action
c) In interpleader, the defendants are being sued
precisely to implead them;
d) Interpleader can be filed at the first instance
with the Regional Trial Court or Metropolitan Trial
Court, Municipal Trial Court depending on the na-
ture of the property and its value/assessed
e) the remedy in interpleader is to appeal the
judgment.

XVIII. SUBPOENA (RULES 21)

1. Q: What are the grounds for the quashal of subpoena?

A: The court may quash a subpoena duces tecum upon motion promptly made and, in any
event, at or before the time specified therein, n the following grounds:

1) Unreasonable and oppressive; or

2) The relevancy of the books, documents or things does not appear; or
3) If the person in whose behalf the subpoena is issued fails to advance the reasonable
cost of the production thereof.

The court may quash a subpoena ad testificandum on the ground that the witness is
not bound thereby. In either case, the subpoena may be quashed on the ground that the
witness fees and kilometrage allowed by these Rules were not tendered when the subpoena
was served. (Sec. 4, Rule 21)

2. Q: What are the consequences of failure of the witness to comply with the subpoena?
37

A: In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof
of the service thereof and of the failure of the witness, may:

1) Issue a warrant to the sheriff of the province, or his or her deputy, to arrest the
witness and bring him or her before the court or officer where his or her attendance is
required; and

2) The cost of such warrant and seizure of such witness shall be paid by the
witness if the court issuing it shall determine that his or her failure to answer the subpoena was
willful and without just excuse. (Sec. 8, Rule 21)

XIX. MODES OF DISCOVERIES (RULES 23-28)

1. Q: What is a mode of discovery?

A: It is a device to obtain information about relevant matters on the case from the adverse party
in preparation for trial.

2. Q: What is the purpose of modes of discovery?

A: Modes of discovery are intended for the following purposes, to wit:

a) It is used as a device to narrow and clarify basic issues between the parties;
b) It is used as a device for ascertaining facts relative to the issue of the case;
c) To obtain full knowledge of the issues and facts of the case;
d) To avoid perjury and detection of false and fraudulent claims and defenses;
e) To expedite the proceedings; and
f) To simplify issues of the case.

a) Deposition (RULE 23)

1. Q: How will the deposition of a person be taken pending action?

A: Upon ex parte motion of a party, the testimony of any person, whether a party or not, may be
taken by deposition upon oral examination or written interrogatories. (Sec. 1, Rule 23)

2. Q: Is the remedy deposition available to a non- resident foreign corporation?

A: Yes, Rule 23, Section 1 is clear that the testimony of any person may be taken by deposition
upon oral examination or written interrogatories at the instance of any party. (Ingrid Sala
Santamaria and Astrid Sala Boza Vs. Thomas Cleary/Kathryn Go-Perez Vs. Thomas Cleary, G.R.
No. 197122/G.R. No. 197161. June 15, 2016)

3. Q: What is the scope of the examination of the deponent?

A: Unless otherwise ordered by the court as provided by Section 16 or 18 of this Rule, the
deponent may be examined regarding:

1) Any matter which is not privileged;

2) Matter which is relevant to the subject of the pending action, whether relating to the
claim or defense of any other party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other tangible things and the identity and
location of persons having knowledge of relevant facts. (Sec. 2, Rule 23)

** 4. Q: What is the purpose and use of deposition?

A: At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a
deposition, so far as admissible under the rules of evidence, may be used against any party
who was present or represented at the taking of the deposition or who had due notice thereof, in
accordance with any one of the following provisions:
38

a) Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness;

b) The deposition of a party or of any one who at the time of taking the deposition was
an officer, director, or managing agent of a public or private corporation, partnership, or
association which is a party may be used by an adverse party for any purpose;

c) The deposition of a witness, whether or not a party, may be used by any party for any
purpose if the court finds:

(1) That the witness is dead; or

(2) That the witness resides at a distance more than one hundred (100)
kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that
his absence was procured by the party offering the deposition; or
(3) That the witness is unable to attend or testify because of age, sickness,
infirmity, or imprisonment; or
(4) That the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or
(5) Upon application and notice, that such exceptional circumstances exist as to
make it desirable, in the interest of justice and with due regard to the importance of presenting
the testimony of witness orally in open court, to allow the deposition to be used; and
d) If only part of a deposition is offered in evidence by a party, the adverse party may
require him to introduce all of it which is relevant to the part introduced, and any party may
introduce any other parts. (Sec. 4, Rule 23)

5. Q: What is the effect of introducing the deposition as evidence?

A: The introduction in evidence of the deposition or any part thereof for any purpose other than
that of contradicting or impeaching the deponent makes the deponent the witness of the party
introducing the deposition, but this shall not apply to the use by an adverse party of a deposition
as described in paragraph (b) of Section 4 of this Rule. (Sec. 8, Rule 23)

6. Q: Who may take the deposition of a person?

A: Within the Philippines, depositions may be taken before:

1) Any judge;
2) Notary public; or
3) The person referred to in Section 14 hereof.
4) Under Sec. 14, If the parties so stipulate in writing, depositions may be taken before
any person authorized to administer oaths. (Sec. 10, Rule 23)

7. Q: Who may take deposition of a person abroad?

A: In a foreign state or country, depositions may be taken

(a) On notice before a secretary of embassy or legation, consul general, consul, vice-
consul, or consular agent of the Republic of the Philippines;
(b) Before such person or officer as may be appointed by commission or under letters
rogatory; or
(c) The person referred to in Section 14 hereof. (Sec. 11, Rule 23)

8) Q: How will a letter rogatory or commission be issued?

A: A commission or letters rogatory shall be issued only:

1) When necessary or convenient;

2) On application and notice; and
3) On such terms and with such direction as are just and appropriate. (Sec. 12, Rule 23)

9) Q: Distinctions between letter commission and letter rogatory?

39

Letter Commission Letter Rogatory

a) Letter commission- is an instrument issued a) Letters rogatory –– is an instrument whereby

by a court of justice, or other competent tribunal
to authorize a person to take depositions, or do
any other act by authority of such court or
tribunal;
b) Letter commission is addressed to a non-
judicial foreign officer who will take the deposition
c) In letter commission, the rules which are
applicable are those of the requesting court;
a foreign court is informed of the pendency of a
case and the name of the foreign witness, and is
requested to cause their depositions to be taken
in due course of law for the furtherance of justice,
with an offer on the part of the court making the
request, to do the like for the other, in a similar
case;
b) Letters rogatory it is addressed to a judicial
officer of a foreign country who will direct the
taking of the deposition;
c) In letters rogatory the procedure applicable
will that be of the foreign court;

d) In letter commission, it is allowed if the d) In letters rogatory, it is allowed if commission

permission of the foreign country is given was disallowed by the foreign country

e) Lastly, in commission leave of court is not e) In letters rogatory, leave of court is necessary
necessary;

10. Q: Who are disqualified to take deposition?

A: No deposition shall be taken before a person who is:

1) A relative within the sixth degree of consanguinity or affinity;

2) Employee or counsel of any of the parties;
3) Person who is a relative within the same degree;
4) Employee of such counsel; or
5) Person who is financially interested in the action. (Sec. 13, Rule 23)

11. Q: What are the orders which can be issued by the court for the taking of deposition
upon oral examination?

A: After notice is served for taking a deposition by oral examination, upon motion seasonably
made by any party or by the person to be examined and for good cause shown, the court in
which the action is pending may make the following orders:

(a) That the deposition shall not be taken;

(b) That the deposition may be taken only at some designated place other than
that stated in the notice;
(c) That the deposition may be taken only on written interrogatories;
(d) That certain matters shall not be inquired into;
(e) That the scope of the examination shall be held with no one present except the
parties to the action and their officers or counsel;
(f) That after being sealed the deposition shall be opened only by order of the
court;
(g) That secret processes, developments, or research need not be disclosed; or (h) That
the parties shall simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the court. (Sec. 16, Rule 23)

12. Q: What is the remedy of the deponent If the examination tends to harass, annoy,
disrepute the deponent?

A: The proponent may file a Motion to Terminate or Limit the Examination, and shall only
resume upon Order of the court (Sec. 18, Rule 23):

13. Q: How to take deposition of a person upon written interrogatories?

A: A party desiring to take the deposition of any person upon written interrogatories shall:
40

1) Serve them upon every other party with a notice;

2) It shall state the name and address of the person who is to answer them; and
3) It shall state the name or descriptive title and address of the officer before whom the
deposition is to be taken.

14. Q: When to file cross-interrogatories?

A: Within ten (10) calendar days thereafter, a party so served may serve cross- interrogatories
upon the party proposing to take the deposition.

15. Q: When to file re-direct interrogatories?

A: Within five (5) calendar days thereafter the latter may serve re-direct interrogatories upon a
party who has served cross-interrogatories.

16. Q: When to file recross-interrogatories?

A: Within three (3) calendar days after being served with re-direct interrogatories, a party may
serve recross-interrogatories upon the party proposing to take the deposition. (Sec. 25, Rule
23)

17. Q: What are the protection orders that may be issued by the court prior to the taking
of testimony?

A: After the service of the interrogatories and prior to the taking of the testimony of the
deponent, the court in which the action is pending, on motion promptly made by a party or a
deponent, and for good cause shown, it may:

1) Make any order specified in Sections 15, 16 and 18 of this Rule which is appropriate
and just;
2) An order that the deposition shall not be taken before the officer designated in the
notice; or
3) That it shall not be taken except upon oral examination. (Sec. 28, Rule 23)

18. Q: What are the rules on the objections to errors and irregularities in deposition?

A: 1) As to notice- waived unless written objection is promptly filed to the party giving the
notice.
2) As to disqualification of officer- waived, unless made before the taking of
deposition begins, or as soon as the disqualification became known or could be discovered with
reasonable diligence.
3) As to competency or relevancy of evidence – are not waived by failure to object
during the taking of deposition, unless the ground of the objection is one which might have been
obviated or removed if presented at the time;
4) As to oral examination and other particulars- waived unless reasonable objection
thereto is made at the taking of the deposition.
5) As to form of written interrogatories - Objection waived, unless served in writing
upon the parties propounding them within the time allowed for serving succeeding cross or other
interrogatories, within three (3) days after service after service of the last interrogatories.
6) As to manner of preparation- Objection waived, unless a motion to suppress
deposition or some part thereof is made with reasonable promptness after such defect is, or
with due diligence might have been ascertained. (Sec. 29, Rule 23)

b) Interrogatories to Parties (RULE 25)

1. Q: How to avail the mode of discovery of interrogatories to parties?

A: Upon ex parte motion, any party desiring to elicit material and relevant facts from any
adverse parties shall:

1) File and serve upon the latter written interrogatories to be answered by the party
41

served; or,
2) If the party served is a public or private corporation or a partnership or association, by
any officer thereof competent to testify in its behalf.

2. Q: What is the remedy in case of denial of written interrogatories?

A: An order denying the written interrogatories is interlocutory in nature, and petition for certio-
rari under Sec. 1, Rule 65 in case the order is patently erroneous. (Ong vs. Mazo, G.R. No.
145542, June 4, 2004)

3. Q: What is the purpose of Interrogatories to parties?

A: To elicit material and relevant facts.

4. Q: When to file and serve answer to interrogatories?

A: The party upon whom the interrogatories have been served shall file and serve a copy of the
answers on the party submitting the interrogatories within fifteen (15) calendar days after
service thereof, unless the court, on motion and for good cause shown, extends or shortens the
time. (Sec. 2, Rule 25)

5. Q: What is the requirement in filing of the answer?

A: Interrogatories must be answered under oath, otherwise deemed impliedly admitted are the
matters stated in the interrogatories within fifteen days, unless extended (Sec. 2, Rule 25).

6. Q: What is the effect of failure to file an answer under oath?

A: If there is no answer, the party requested may be declared in default and judgment by default
may be rendered under Sec. 5, Rule 29.

7. Q: What is the effect of failure to serve interrogatories? (2016 Bar Exam)

A: A party not served with interrogatories may not be compelled to give testimony in open court,
or to give deposition pending appeal. (Sec. 6, Rule 25)

8. Q: Is there any exception?

A: When allowed by the court upon good cause shown and to prevent failure to justice.

9. Q: Distinguish Written Interrogatories Under Rule 23 And Written Interrogatories Under

Rule 25?

Written Interrogatories (Rule 25) Written Interrogatories (Rule 23)

a) In written interrogatories under Rule 25, it is
directly served to the adverse party;
b) In written interrogatories under Rule 25, no
officer to take deposition is required;
a) In written interrogatories under Rule 23, the
deponent is a third person not necessarily a party;
b) in written interrogatories under Rule 23, it
is required that it will be taken by a deposition
officer.

c) Admission by the Adverse Party (RULE 26)

1. Q: When to file written request for admission?

A: At any time after issues have been joined, a party may file and serve upon any other party a
written request for the admission by the latter of the genuineness of any material and relevant
document described in and exhibited with the request or of the truth of any material and relevant
matter of fact set forth in the request.

2. Q: What is the purpose of request for written admission?

42

A: To admit the genuineness of any material and relevant document, and material and relevant
fact.

3. Q: What is the duty of the party served with written request for admission?

A: Each of the matters of which an admission is requested shall be deemed admitted unless,
within a period designated in the request, which shall not be less than fifteen (15) calendar days
after service thereof, or within such further time as the court may allow on motion, the party to
whom the request is directed files and serves upon the party requesting the admission a sworn
statement either denying specifically the matters of which an admission is requested or setting
forth in detail the reasons why he or she cannot truthfully either admit or deny those matters.

4. Q: Will the party served a written request for admission required to submit his sworn
statement objection when he previously controverted said matter in a previous pleading?
(Bar Examination 2018)

A: No. When the party to whom such request for admission is served had already controverted
the matters subject of such request in an earlier pleading. (Duque and Heirs of Mateo Duque vs
Spouses Yu and Delia Duque Capacio, G.R. No. 226130, February 19, 2018)

5. Q: Will request for admission be available if the matters raised therein were already
alleged in the amended complaint?

A: No, A request for admission that merely reiterates the allegations in an earlier pleading is
inappropriate under Rule 26 of the Rules of Court, which as a mode of discovery. (Spouses Ramon
Villuga and Mercedita Villuga, vs. Kelly Hardware and Construction Supply Inc., Represented by
Ernesto V. Yu, Executive Vice-President and General Manager, G.R. No. 176570 - July 18, 2012)

6. Q: What is the effect of admission?

A: Admission made based on such request is for the purpose of a pending action only and not
for another purpose, nor it may be used in any other proceeding. (Sec. 3, Rule 26).

6. Q: Can the admission be withdrawn or amended?

A: Yes, the court may allow the admission, whether express or implied to be withdrawn or
amended upon such terms as maybe just. (Sec. 4, Rule 26)

7. Q: What is the effect of failure to serve written request for admission?

A: Failure to serve request for admission on the adverse party of material and relevant facts at
issue, or within the knowledge of the adverse party, cannot present evidence on such fact. (sec.
6, Rule 26)

e) Production and Inspection of Documents or Things or Premises (RULE 27)

1. Q: What are the orders which may be issued by the court in case of motion for
production and inspection?

A: Upon motion of any party showing good cause therefor, the court in which an action is
pending may issue the following:

(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, accounts,
letters, photographs, objects or tangible things, not privileged, which constitute or contain
evidence material to any matter involved in the action and which are in his or her possession,
custody or control; or

(b) Order any party to permit entry upon designated land or other property in his or her
possession or control for the purpose of inspecting, measuring, surveying, or photographing the
property or any designated relevant object or operation thereon. The order shall specify the
43

time, place and manner of making the inspection and taking copies and photographs, and may
prescribe such terms and conditions as are just. (Sec. 1, Rule 27)

2. Q: Where will the motion be filed?

A: The motion based on good cause shall be filed where the action is pending.

3. Q: What is the coverage and limitation under the rule?

A: Any documents, papers, books, accounts, letters, photographs, objects or tangible things not
otherwise PRIVILEGE.

XIX. SANCTIONS FOR REFUSAL TO COMPLY WITH THE MODES (RULE 29)

1. Q: What are the effects in case to appear during the taking of deposition or serve
answer to interrogatories?

A: If a party or an officer or managing agent of a party willfully fails to appear before the officer
who is to take his or her deposition, after being served with a proper notice, or fails to serve
answers to interrogatories submitted under Rule 25 after proper service of such interrogatories,
the court on motion and notice, may:

1) Strike out all or any part of any pleading of that party;

2) Dismiss the action or proceeding or any part thereof;
3) Enter a judgment by default against that party; and
4) In its discretion, order him or her to pay reasonable expenses incurred by the other,
including attorney's fees.

XX. TRIAL (RULE 30)

1. Q: What is the order of trial in civil cases?

A: Subject to the provisions of Section 2 of Rule 31, and unless the court for special reasons
otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall
proceed as follows:

(a) The plaintiff shall adduce evidence in support of his or her complaint;
(b) The defendant shall then adduce evidence in support of his or her defense,
counterclaim, cross-claim and third-party complaint;
(c) The third-party defendant, if any, shall adduce evidence of his or her defense,
counterclaim, cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts
pleaded by them;
(e) The parties against whom any counterclaim or cross-claim has been pleaded, shall
adduce evidence in support of their defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence only, unless the court,
for good reasons and in the furtherance of justice, permits them to adduce evidence upon their
original case; and
(g) Upon admission of the evidence, the case shall be deemed submitted for decision,
unless the court directs the parties to argue or to submit their respective memoranda or any
further pleadings.

2. Q: May the parties agree and stipulate on the facts involve in the case?

A: Yes, parties may agree in writing on the facts involved in the case, and submit the case for
judgment on the facts agreed upon without the introduction of the evidence. (Sec. 7, Rule 30)

3. Q: What is effect if there is only a partial stipulation on the facts?

A: The court shall conduct trial on the disputed facts in such order as the court may prescribe.
44

XX. TRIAL BY COMMISSIONER (RULE 32)

1. Q: What is the rule on referral of the case to a commissioner by consent of the parties?

A: By written consent of both parties, the court may order any or all of the issues in a case to be
referred to a commissioner to be agreed upon by the parties or to be appointed by the court.
(Sec. 1, Rule 32)

2. Q: When is trial by commissioner available?

A: When the parties do not consent, the court may, upon the application of either or of
its own motion, direct a reference to a commissioner in the following cases:

(a) When the trial of an issue of fact requires the examination of a long account on either
side, in which case the commissioner may be directed to hear and report upon the whole issue
or any specific question involved therein;
(b) When the taking of an account is necessary for the information of the court before
judgment, or for carrying a judgment or order into effect;
(c) When a question of fact, other than upon the pleadings, arises upon motion or
otherwise, in any stage of a case, or for carrying a judgment or order into effect. (Sec. 2, Rule
32)

3. Q: What are the powers of the commissioner?

A: Subject to the specifications and limitations stated in the order, the commissioner has and
shall exercise the following powers:

1) To regulate the proceedings in every hearing before him or her; and

2) To do all acts and take all measures necessary or proper for the efficient
performance of his or her duties under the order;
3) He or she may issue subpoenas and subpoenas duces tecum;
4) He may swear witnesses; and
5) Unless otherwise provided in the order of reference, he or she may rule upon the
admissibility of evidence.

XXI. DEMURRER TO EVIDENCE (RULE 33)

1. Q: When to file demurrer to evidence?

A: After the plaintiff has completed the presentation of his or her evidence, the defendant may
move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right
to relief.

2. Q: What is the remedy of the defendant when his motion is denied?

A: If his or her motion is denied, he or she shall have the right to present evidence.

3. Q: What is the effect of granting of the motion but was reversed on appeal?

A: If the motion is granted but on appeal the order of dismissal is reversed, he or she shall be
deemed to have waived the right to present evidence.

4. Q: Can an order denying the demurrer to evidence be subject to appeal of certiorari?

A: No. The order denying the demurrer to evidence shall not be subject of an appeal or petition
for certiorari, prohibition or mandamus before judgment. (Sec. 2, Rule 33)

5. Q: Who may resolve the motion for demurrer to evidence?

A: Motion To demurrer to Evidence can only be resolved by the trial court since it is not within
45

the province of the appellate court to grant or deny the same. (Nenita Gonzales, Et. Al. Vs.
Mariano Bugaay And Lucy Bugaay, G.R. No. 173008, February 22, 2012

6. Q: What are the distinctions between Demurrer to evidence in Civil Cases (Rule 33)
and in Criminal Cases (Sec. 23, Rule 119)?

DEMURRER IN CIVIL CASES (RULE 33) DEMURRER IN CRIMINAL CASES

(SEC. 23, RULE 119)

a) in civil cases, such grant is an adjudication on
the merits of the case, which is definitely subject
to appeal. (Sec. 1, Rule 33)
b) In civil cases, the court may dismiss the case
upon motion of the defendant.
a) In criminal cases, the grant of a demurrer is
tantamount to an acquittal and the dismissal
order may not be appealed because this would
place the accused in double jeopardy. Although
the dismissal order is not subject to appeal, it is
still reviewable but only through certiorari under
Rule 65 of the Rules of Court. (People vs.
Sandiganbayan, G.R. No. 174504, March 21,
2011)
b) In criminal cases, the court may motu proprio
or upon motion of the accused dismiss the case.

c) In civil cases, leave of court is not required.
d) In a demurrer to evidence on civil cases, the
motion for demurrer may simply be filed without
leave of court, but the denial thereof will still allow
the defendant to present his evidence to rebut the
plaintiff’s claim.
c) In criminal actions, the motion for demurrer to
evidence may be filed with or without leave of
court. A motion for leave of court is filed, in the
event that the court does not find an insufficiency
of evidence to motu proprio dismiss the case,
within a non-extendable period of five (5) days
after the prosecution rests its case. The motion
for leave of court may or may not be granted, and
in case not, the accused may still adduce
evidence in his defense, for such denial is not
reviewable by appeal or even by certiorari.
d) In any event, if the accused strongly believes
that the prosecution does not have sufficient
evidence to prove his guilt, he may nonetheless
file a Motion for Demurrer to evidence without
leave of court, but takes the risk that, in case of
denial thereof, he is deemed to have waived his
right to present evidence, and submits the case
for judgment on the basis of the evidence for the
prosecution.

XXII. JUDGMENT ON THE PLEADINGS (RULE 34) AND SUMMARY JUDGMENT (RULE
35)

1. Q: When to avail the remedy of motion for judgment on the pleadings?

A: Where an answer fails to tender an issue, or otherwise admits the material allegations of the
adverse party’s pleading, the court may, on motion of that party, direct judgment on such
pleading.

2. Q: Can the court motu propio render judgment on the pleadings?

A: YES. The court may motu proprio or on motion render judgment on the pleadings if it is
apparent that the answer fails to tender an issue, or otherwise admits the material allegations of
the adverse party’s pleadings. Otherwise, the motion shall be subject to the provisions of Rule
15 of these Rules. (Sec. 2, Rule 34)

3. Q: When can the plaintiff move for summary judgment?

A: A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a

46

declaratory relief may, at any time after the pleading in answer thereto has been served, move
with supporting affidavits, depositions or admissions for a summary judgment in his or her favor
upon all or any part thereof. (Sec. 1, Rule 35)

4. Q: When can a defendant move for summary judgment?

A: A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief

is sought may, at any time, move with supporting affidavits, depositions or admissions for a
summary judgment in his or her favor as to all or any part thereof. (Sec.2, Rule 35)

5. Q: Will the action of the court on the motion for summary judgment be subject of
appeal or certiorari?

A: NO. Any action of the court on a motion for summary judgment shall not be subject of an
appeal or petition for certiorari, prohibition or mandamus. (Sec. 3, Rule 35)

6. Q: Will summary judgment be available if the pleading raised an issue but the affi-
davits shows that there is no genuine issue in the action?

A: YES. Even if on their face the pleadings appear to raise issues, when the affidavits,
depositions and admissions show that such issues are not genuine, then summary judgment as
prescribed by the Rules must ensue as a matter of law. (The Heirs of Nicolas S. Cabigas vs.
Melba L. Limbaco, G.R. No. 175291, July 27, 2011)

7. Q: What are the distinctions between judgment on the pleadings and summary
judgment?

JUDGMENT ON THE PLEADINGS (RULE 34) SUMMARY JUDGMENT (RULE 35)

a) Judgment on the pleadings is proper when it a) summary judgment is proper even if there is
appears that there is no genuine issue between an issue as to damages recoverable.
the parties;

b) Judgment on the pleadings is based
exclusively upon the pleadings without
introduction of evidence;
c) Judgment on the pleadings is available in
any action, except for annulment of marriage or
legal separation;
d) A motion for judgment on the pleadings is
subject only to the 3 day notice rule (Sec. 4, Rule
15) and where all the material averments of the
complaint are admitted, such motion may even be
made ex parte (Cruz vs. Oppen, L-23861,
February 17, 1968);
b) summary judgment is based not only on the
pleadings but also upon the affidavits,
depositions and admissions of the parties
showing that, except as to the amount of
damages, there is no genuine issue.
c) summary judgment is proper only in actions
to recover a debt, or for a liquidated sum of
money, or for declaratory relief.
d) A motion for summary judgment requires
prior 10-day notice. (Sec. 3, Rule 35)

246. Q: Are Motions for judgment on the pleadings or summary judgment available only
during pre-trial conference?

A: NO. The filing of the motion for summary judgment may be done prior to the pre-trial.
Section 1, Rule 35 of the Rules of Court permits a party seeking to recover upon a claim,
counterclaim, or cross-claim or seeking declaratory relief to file the motion for a summary
judgment upon all or any part thereof in his favor (and its supporting affidavits, depositions or
admissions) "at any time after the pleading in answer thereto has been served;" while Section 2
of Rule 35 instructs that a party against whom a claim, counterclaim, or cross-claim is asserted
or a declaratory relief is sought may file the motion for summary judgment (and its supporting
affidavits, depositions or admissions) upon all or any part thereof "at any time." (Spouses
Sergio Pascual and Emma Pascual vs. First Consolidated Rural Bank (Bohol) Inc. et al, G.R.
No. 202597 | February 8, 2017, BERSAMIN, J.)
47

XXIII. JUDGMENT/ORDERS/RESOLUTION (RULE 36)

1. Q: What are the judgments which are immediately executory?

A: The judgments which are immediately executory under the law and rules are as follows, to
wit:

a) Judgment upon compromise;

b) Decision under the 2016 Revised Rules on Small Claims Cases (Sec. 24);
c) Decision in Forcible Entry and Unlawful Detainer (Sec. 19, Rule 70);
d) Decision in Expropriation Proceedings (Rule 67);
e) Decision in case of presumptive death (Art. 41 of the Family Code)
f) Judgment in an action for injunction;
g) Judgment in Receivership;
h) Judgment in action for Accounting;
i) Judgment in action for Support; and
j) Such other judgments as are now or may hereafter be declared to be immediately
executory, shall be enforceable after their rendition and shall not be stayed by an appeal taken
therefrom. (Sec. 4, Rule 39)
k) Judgment under petition for certiorari under Rule 64;
l) Judgment in Environmental Cases;
m) Judgment in Intellectual Property Cases.

2. Q: What is the nature of the Minute Resolution issued by the Supreme Court or Court
of Appeals?

A: Minute Resolution of the Supreme Court and Court of Appeals is a final order disposing of
the action which bars the refilling of the case and therefore constitute res judicata.

3. Q: What is the remedy in case of decision in an action for declaration of presumptive

death?

A: The remedy is petition for certiorari under Rule 65 in case of final and executory judgment in
a petition for declaration of presumptive death since the judgment is immediately final and
executory. (Republic of the Philippines vs. Jose B. Sareñogon, Jr. G.R. No. 199194. February
10, 2016)

4. Q: What is the rule in case of conflict between the dispositive portion or fallo, the
opinion of the court?

A: In case of conflict between the dispositive portion or fallo of a decision and the opinion of the
court contained in the text or body of the judgment, the former prevails over the latter. (Leo A.
Gonzales vs. Solid Cement Corporation and Allen Querubin, G.R. No. 198423, October 23,
2012)

5. Q: When can the Court decide the case though it is already moot and academic?

A: If there is a grave violation of the Constitution, the exceptional character of the situation
involving public interest, when constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and the case is capable of repetition yet
evading review. (The Province of North Cotabato v. The Government of the Republic of the
Philippines Peace Panel on Ancestral Domain, G.R. Nos. 183591, 183752, 183893 & 183951,
October 14, 2008)

6. Q: What is doctrine of Immutability of judgment/Exceptions: (Slip Rule):

A: But the doctrine of immutability of a final judgment has not been absolute, and has admitted
several exceptions, among them: (a) the correction of clerical errors; (b) the so-called nunc pro
tunc entries that cause no prejudice to any party; (c) void judgments; and (d) whenever
48

circumstances transpire after the finality of the decision that render its execution unjust and
inequitable.

7. Q: Distinguish final order from an interlocutory order?

Final Order Interlocutory Order

a) Final order disposes of the subject matter in its
entirety or terminates a particular proceeding or
action, leaving nothing more to be done except to
enforce by execution what the court has
determined;
b) A final order deals with the merits of the case;
c) A final order is appealable, to accord with the
final judgment rule enunciated in Sec. 1, Rule 41
a) Interlocutory order does not completely dis-
pose of the case but leaves something else to be
decided upon.
b) An interlocutory order deals with preliminary
matters and the trial on the merits is yet to be
held and the judgment rendered.
c) An interlocutory order is not appealable and
therefore the remedy is certiorari.

XXIV. MOTION FOR NEW TRIAL OR RECONSIDERATION (RULE 37)

1. Q: What are the grounds for new trial?

A: The grounds for new trial as mentioned in Sec. 1, Rule 37 are as follows, to wit:

a) 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; or

b) 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.

2. Q: What are the grounds for a motion for reconsideration?

A: The grounds for a motion for reconsideration under Sec. 1, Rule 37 are as follows, to wit:

1) The damages awarded are excessive;

2) That the evidence is insufficient to justify the decision or final order; or
3) That the decision or final order is contrary to law.

3. Q: “What is “Second Motion for New Trial Rule”?

A: Yes, the above rule provides that a second motion for new trial, based on a ground not
existing, nor available when the first motion was made, may be filed within the time herein
provided excluding the time during which the first motion had been pending.

4. Q: Is second motion for reconsideration allowed? What is “Single Motion Rule”?

A: The above rule provides that no party shall be allowed a second motion for reconsideration
of a judgment or final order.

5. Q: What is the exception to the prohibition on the filing of a second motion for
reconsideration?

A: In case of extraordinarily persuasive reasons such as when the decision is a patent nullity.

6. Q: Is a second Motion for Reconsideration on the amended decision prohibited?

A: No. The second motion does not partake the nature of a prohibited pleading because the
Amended Decision is an entirely new decision which supersedes the original, for which a new
49

motion for reconsideration may be filed again. (Angelito L. Cristobal vs. Philippine Airlines, Inc.
and Lucio Tan, G.R. No. 201622, October 4, 2017)

7. Q: What is the nature of an Order denying a Motion for Reconsideration of an order

granting a Motion to Dismiss?

A: The denial of a motion for reconsideration of an order granting the defending party’s
motion to dismiss is not an interlocutory but a final order because it puts an end to the
particular matter involved, or settles definitely the matter therein disposed of, as to leave
nothing for the trial court to do other than to execute the order. Accordingly, the claiming
party has a fresh period of 15 days from notice of the denial within which to appeal the denial.
(Priscilla Alma Jose vs. Ramon Javellana et al, G.R. No. 158239, January 25, 2012,
BERSAMIN, J.)

8. Q: What are the distinctions between Rule 37 vs. Rule 53?

New Trial under Rule 37 New Trial under Rule 53.

a) New Trial under Rule 37 is available only in a) New Trial under Rules 53 is available in
the trial courts (RTC/MTC/MCTC); the appellate courts (Court of Appeals);

b) New trial under Rule 37 provides for the
ground of fraud, accidence, mistake and
excusable negligence and newly discovered
evidence
c) New Trial under Rule 37 shall be resolved
within thirty (30) days from the time the case
is submitted for resolution;
b) New Trial under Rule 53 is grounded on
newly discovered evidence;
c New Trial under Rule 53 shall be resolved
within ninety (90) days when the court
declares it submitted for resolution.

XXV. PETITION FOR RELIEF FROM JUDGMENT, ORDER OR PROCEEDINGS (RULE 38)

1. Q: Where to file?

A: It should be filed with the Court which rendered the judgment.

2. Q: When to file?

A: Within 60 days from knowledge, but not exceeding six months from entry of judgment.

3. Q: What is the requirement for filing?

A: The remedy of Motion for Reconsideration, new trial, or appeal is no longer available to the
plaintiff.

4. Q: What is the remedy in case of denial in case of denial of the petition?

A: File a petition for certiorari under Rule 65, since the Order denying a petition for relief
or other motion seeking relief from judgment is not appealable under Sec. 1 (a) Rule 41.

. Q: In what cases the petition is not allowed?

A: It is not available in Summary Proceedings and Small Claims Cases since it is a prohibited
motion.

XXVI. EXECUTION (RULE 39)

1. Q: Can government funds be the subject of garnishment by virtue of a final judgment

even though there was an implied consent/contract between the government entity and
private person?
50

A: No. Government funds cannot be the subject of immediate execution because suability did
not necessarily mean liability. It must be adjudicated first by the COA before the execution of the
judgment in accordance with P.D. 1445, Government Auditing Code of the Philippines.

. Can the award of moral and exemplary damages by the court be enforced against
government funds which is not included in the appropriation of funds of the government
agency?

A: No. The garnishment of its funds to satisfy the judgment award of actual and moral damages
(including attorney’s fees cannot be validly made if there is no special appropriation by
Congress to cover the liability. (University of the Philippines, et. Al., vs. Hon, Agustin Dizon,
RTC, Quezon City, et al., 23 August 2012)

Take Note:

2. Q: What is the remedy in case of an Order of execution?

A: An Order of execution is not appealable under Sec. 1, Rule 41, therefore, the proper remedy
is a petition for certiorari and/or prohibition.

3. Q: What are the remedies available during execution for the plaintiff?

a) Levy on Execution;
b) Garnishment;
c) Examination of the defendant under oath as regards his properties may be
availed of;
d) Motion for Execution;
e) Petition for writ of possession.

4. Q: What are the remedies during execution for the defendant?

a) Motion to Quash writ of execution;

b) Petition for certiorari and /or prohibition with TRO Injunction;
c) Appeal the writ of execution;
d) Redemption of the property within one (1) year from registration.
e) Remedy of terceria/third party claim is a remedy available to a third person
whose property has been levied upon execution;

5. Q: When can a judgment or final order be subject of execution as a matter of right?

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)

6. Q: Can an execution be restrained by an injunction?

A: No court should interfere, by injunction or otherwise, to restrain such execution, except when
there are facts and circumstances rendering execution unjust, and when there is a change in
the situation that may warrant injunction. (Australian Professional Realty, Inc., Jesus Garcia,
and Lydia Marciano vs. Municipality of Padre Garcia, Batangas Province, G.R. No. 183367,
March 14, 2012)

7. Q: What is the nature of a motion for issuance of writ of execution?

A: Motion for issuance of writ of execution is a non-litigious motion under Sec. 4, Rule 15 of the
2019 Amendments to the 1997 Rules on Civil Procedure which shall not be set for hearing and
shall be resolved by the court within five (5) calendar days from receipt thereof.

8. Q: What are the requisites for execution pending appeal?

51

A: The requisites are, there must be a motion therefore by the prevailing party, there must be a
good reason for issuing the writ of execution, and the good reason must be stated in a special
order. (Sec. 2, Rule 39)

9. Q: What are the instances where execution pending appeal is not allowed?

A: a) Execution pending appeal not applicable in land registration proceeding. (Top

Management Programs Corporation vs. Luis Fajardo and The Register of Deeds of Las Pinas
City, G.R. No. 150462, June 15, 2011)
b) Discretionary execution does not apply to eminent domain proceedings
c) No execution pending appeal in case of moral and exemplary damages.

10. Q: How can discretionary execution be stayed?

A: Discretionary execution issued under the preceding section may be stayed subject to the
following conditions, to wit:

1) Upon approval by the proper court of a sufficient supersedeas bond filed by the party
against whom it is directed;
2) Conditioned upon the performance of the judgment or order allowed to be executed in
case it shall be finally sustained in whole or in part;
3) The bond thus given may be proceeded against on motion with notice to the surety.
(Sec. 3, Rule 39)

11. Q: What are the Orders or judgments which are immediately executory?

A: a) Orders of accounting, injunction, receivership and support;

b) Judgment upon compromise;
c) Judgment in forcible entry and unlawful detainer in favor of the plaintiff;
d) Judgment in small claims cases
e) Judgment in a petition for presumptive death

TAKE NOTE: Remedy is petition for certiorari since the decision is final and unappealable,
hence, there is no appeal nor plain, adequate, speedy remedy in the ordinary course of law;

12. Q: When can an execution be made by motion?

A: A final and executory judgment or order may be executed on motion within five years from
the date of its entry.

13. Q: When can an execution be made by independent action?

A: After the lapse of such time, and before it is barred by the statute of limitations, a judgment
may be enforced by action.

14. How can the revived judgment be enforced?

A: The revived judgment may also be enforced by motion within five years from the date of its
entry. (Sec. 6, Rule 39)

15. Q: In case of an action for the revival of judgment, which court has jurisdiction?

A: The Regional Trial Court has exclusive original jurisdiction over action for revival of
judgment since it involves issues of whether the petitioner has a right to have the final
and executory judgment revived and to have the judgment enforced and does not involve
recovery of a sum of money. Therefore, jurisdiction over a petition to revive judgment is
properly with the RTCs since the subject matter of the case is incapable of pecuniary
estimation pursuant to Sec. 19 (1) of B.P. 129 as amended. (Douglas F. Anama, vs.
CITIBANK, N.A. (formerly First National City Bank), G.R. No. 192048, December 2017)

16. Q: How will the execution be made in case of death of a party?

52

A: In case of the death of party, execution may issue or be enforced in the following manner, to wit:

1) In case of the death of the judgment obligee, upon the application of his executor or
administrator, or successor in interest;

2) In case of the death of the judgment obligor, against his executor or administrator or
successor in interest, if the judgment be for the recovery of real or personal property, or the
enforcement of the lien thereon;

3) In case of the death of the judgment obligor, after execution is actually levied upon any of
his property, the same may be sold for the satisfaction of the judgment obligation, and the officer
making the sale shall account to the corresponding executor or administrator for any surplus in his
hands. (Sec. 7, Rule 39)

17. Q: What are the grounds for the quashal of writ of execution?

A: 1) When the writ of execution varies the judgment;

2) When there has been a change in the situation of the parties making execution
inequitable or unjust;
3) When execution is sought to be enforced against property exempt from execution;
4) When it appears that the controversy has never been submitted to the judgment of the
court;
5) When the terms of the judgment are not clear enough and there remains room for
interpretation;
6) When it appears that the writ of execution has been improvidently issued; 7)
When it appears that the writ of execution is defective in substance, or is issued against the
wrong party, or that the judgment debt has been paid or otherwise satisfied, or the writ was
issued without authority. (Reburiano vs. Court of Appeals, 301 SCRA 342; Limpin vs. IAC, 147
SCRA 516)

18. Q: Can a writ of execution be appealed?

A: As a general rule No.

19. Q: What are the Instances where a writ of execution may be appealed?

A: 1) The writ of execution varies the judgment;

2) there has been a change in the situation of parties making execution
inequitable or unjust;
3) execution is sought to be enforced against property exempt from execution;
4) it appears that the controversy has never been subject to the judgment of the
court;
5) the terms of the judgment are not clear enough and there remains room for
interpretation thereof;
6) it appears that the writ of execution has been improvidently issued, or that it is
defective in substance, or is issued against the wrong party, or that the judgment has
been paid or otherwise satisfied, or the writ was issued without authority (Banaga vs.
Majaducon cited in General Milling Corporation-Independent Labor Union vs. General Milling
Corporation, G.R. No. 183122, June 15, 2011)

20. Q: How will execution be made in case of special judgments?

A: When a judgment requires the performance of any act other than those delivery or
conveyance of real, personal properties or conveyance, a certified copy of the judgment shall be
attached to the writ of execution and shall be:

1) Served by the officer upon the party against whom the same is rendered; or

2) Upon any other person required thereby, or by law, to obey the same; and

3) Such party or person may be punished for contempt if he disobeys such judgment.
(Sec. 11, Rule 39)
53

21. Q: What are the properties exempt from execution?

A: Except as otherwise expressly provided by law, the following property, and no other shall be
exempt from execution:

a) The judgment obligor’s family home as provided by law, or the homestead in which he
resides, and land necessarily used in connection therewith;
b) Ordinary tools and implements personally used by him in his trade, employment, or
livelihood;
c) Three horses, or three cows, or three carabaos, or other beasts of burden such as the
judgment obligor may select necessarily used by him in his ordinary occupation;
d) His necessary clothing and articles for ordinary personal use, excluding jewelry;
e) Household furniture and utensils necessary for housekeeping, and used for that
purpose by the judgment obligor and his family, such as the judgment obligor may select, of a
value not exceeding one hundred thousand pesos;
f) Provisions for individual or family use sufficient for four months;
g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding
three hundred thousand pesos in value;
h) One fishing boat and accessories not exceeding the total value of P100,000.00 owned
by a fisherman and by the lawful use of which he earns his livelihood;
i) So much of the salaries, wages, or earnings of the judgment obligor of his personal
services within the four months preceding the levy as are necessary for the support of his
family;
j) Lettered gravestones;
k) Monies benefits, privileges, or annuities accruing or in any manner growing out of any
life insurance;
l) The right to receive legal support, or money or property obtained as such support, or
any pension or gratuity from the Government;
m) Properties especially exempt by law. (Sec. 13, Rule 39)

22. Q: What are the Instances where writ of possession may be issued?

A: A writ of possession, which commands the sheriff to place a person in possession of real
property, may be issued in:

1) Land registration proceedings under Sec. 17 of Act No. 496;

2) Judicial foreclosure, provided the debtor is in possession of the mortgaged
property, and no third person, not a party to the foreclosure suit, had intervened;
3) Extrajudicial foreclosure of a real estate mortgage, pending redemption under
Sec. 7 of Act No. 3135, as amended by Act No. 4118; and
4) Execution sales, pursuant to the last paragraph of Sec. 33, Rule 39 of the Rules
of Court. (Eligio P. Mallari vs. Government Service Insurance System and the Provincial Sheriff
of Pampanga, G.R. No. 157659, January 25, 2010)

23. Q: What are the exceptions to the rule that issuance of a writ of possession is a
ministerial function?

A: (1) Gross inadequacy of purchase price;

(2) Third party claiming right adverse to debtor/mortgagor
(3) Failure to pay the surplus proceeds of the sale to mortgagor

24. Q: What are the effects of foreign judgment? (2007 Bar exam)

A: The effects of a judgment or final order of a tribunal of a foreign country, having

jurisdiction to render the judgment or final order is as follows:

1) In case of a judgment or final order upon a specific thing, the judgment or final
order is conclusive upon the title to the thing; and

2) In case of a judgment or final order against a person, the judgment or final

order is presumptive evidence of a right as between the parties and their successors in
54

interest by a subsequent title.

25. Q: What are the grounds to repel foreign judgment or final order?

A: In either case, the judgment or final order may be repelled by:

1) Evidence of a want of jurisdiction;

2) Want of notice to the party;
3) Collusion;
4) Fraud; or
5) Clear mistake of law or fact.

XXVII. APPEAL (RULES 41, & 45)

1. Q: What are the judgments or orders which are not appealable under the rules?

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 or 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; and

7) An order dismissing an action without prejudice.

2. Q: What is the remedy in case of non-appealable judgment or orders?

A: As clearly mandated by the above provision of the rule that, in any of the foregoing
circumstances, the aggrieved party may file an appropriate special civil action as provided in
Rule 65.

3. Q: What are the modes of appeal?

A: a) Ordinary appeal. — The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment or final order appealed from and serving a
copy thereof upon the adverse party. No record on appeal shall be required except in special
proceedings and other cases of multiple or separate appeals where the law or these Rules so
require. In such cases, the record on appeal shall be filed and served in like manner.

b) Petition for review. — The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in
accordance with Rule 42.

c) Appeal by certiorari. — In all cases where only questions of law are raised or involved,
the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with
Rule 45. (Sec. 2, Rule 41)
55

4. Q: When to file an ordinary appeal?

A: The period of ordinary appeals shall be as follows, to wit:

1) The appeal shall be taken within 15 days from notice of the judgment or final order
appealed from;

2) Where a record on appeal is required, the appellant shall file a notice of appeal and
a record on appeal within 30 days from notice of the judgment or final order.

5. Q: Is record on appeal required in case of a judgment in an action for presumptive

death?

A: Action for presumptive death for the purpose of remarriage is not a special proceeding but a summary
proceeding under the Art. 41 of the Family Code, hence record on appeal is not required.
(Republic of the Philippines vs. Yolanda Cadacio Granada, G.R. No. 187512, June 13, 2012)

6. Q: When will an appeal be deemed perfected?

A: An appeal is deemed perfected in the following instances:

1) A party’s appeal by notice of appeal is deemed perfected as to him upon the filing of
the notice of appeal in due time;

2) A party’s appeal by record on appeal is deemed perfected as to him with respect to

the subject matter thereof upon the approval of the record on appeal filed in due time. (Sec. 9,
Rule 41)

7. Q: When to file a Petition for Review on certiorari?

A: A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court
of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other
courts, whenever authorized by law, may file with the Supreme Court a verified petition for
review on certiorari. (Sec. 1, Rule 45)

8. Q: What are the exceptions when the Supreme Court may pass upon question of fact?

A: It is basic that Rule 45 petitions may only raise pure questions of law, and that the factual
findings of lower courts are generally binding and conclusive on this Court. Still, there are
recognized exceptions permitting this Court to overturn the factual findings with which it is
confronted. These exceptions are:

(1) When the conclusion is a finding grounded entirely on speculation, surmises and
conjectures;
(2) When the inference made is manifestly mistaken, absurd or impossible;
(3) Where there is a grave abuse of discretion;
(4) When the judgment is based on a misapprehension of facts;
(5) When the findings of fact are conflicting;
(6) When the Court of Appeals, in making its findings, went beyond the issues of the case and
the same is contrary to the admissions of both appellant and appellee;
(7) When the findings are contrary to those of the trial court;
(8) When the findings of fact are conclusions without citation of specific evidence on
which they are based;
(9) When the facts set forth in the petition as well as in the petitioners' main and reply
briefs are not disputed by the respondents; and
(10) When the findings of fact of the Court of Appeals are premised on the supposed
absence of evidence and contradicted by the evidence on record. (Capistrano Daayata, Dexter
Salisi, and Bregido Malacat, Jr. vs. People of the Philippines, G.R. No. 205745, March 8, 2017)

9. Q: When to file a petition for review on certiorari on the judgment over a petition for writ of
amparo?
56

A: Sec. 19 of A.M. No. 07-9-12-SC a party is only given five (5) working days from the date of notice
of the adverse judgment, or denial of the motion for reconsideration, within which to appeal via
Petition· for Review on Certiorari. (Mayor William Mamba et al. vs. Leomar Bueno, G.R. No. 191416,
February 7, 2017)

10. Q: What are the grounds for the motu propio denial of the petition?

A: As prescribed by the above-cited rule, the Supreme Court may on its own initiative deny the
petition on the ground that:

1) The appeal is without merit;

2) It is prosecuted manifestly for delay; or
3) That the questions raised therein are too unsubstantial to require consideration. (Sec.
5, Rule 45)

11. Q: Will the “fresh period to appeal” be given retroactive application?

A: Yes, since procedural laws can be given retroactive application provided no right shall be
prejudiced. (University of the Philippines, et. Al., vs. Hon, Agustin Dizon, RTC, Quezon City et
al., 23 August 2012)

***12. Q: Distinguish Rule 45 from Rule 65?

Rule 45 (Petition for Review on Certiorari) Rule 65 (Petition for Certiorari

a) In appeal by certiorari, the petition is based
on questions of law which the appellant desires
the appellant court to resolve
b) Review on Certiorari, as a mode of appeal,
involves the review of the judgment, award or
final order on the merits.
c) A Rule 45 petition is a mode of appeal which
centers on the review on the merits of a
judgment, final order or award rendered by a
lower court involving purely questions of law;
d) Appeal by certiorari must be made within
the reglementary period for appeal or within
fifteen (15) days from the receipt of the
assailed judgment
a) In certiorari as an original action, the
petition raises the issue as to whether the lower
court acted without or in excess of jurisdiction
or with grave abuse of discretion questions of
jurisdiction).
b) The original action for certiorari may be
directed against the interlocutory order of the
court prior to appeal from the judgment or
where there is no appeal or any other plain,
speedy or adequate remedy.
c) Rule 65 petition is an original action that
dwells on jurisdictional errors of whether a
lower court acted without or in excess of its
jurisdiction or with grave abuse of discretion.
d) ). An original action for certiorari may be
filed not later than sixty (60) days from notice of
the judgment, order or resolution sought to be
assailed.

e) Appeal by certiorari stays the judgment,
award or order appealed from.;
f) In appeal by certiorari, the petitioner and
respondent are the original parties to the
action, and the lower court or quasi-judicial
agency is not to be impleaded
g) In certiorari for purposes of appeal, the
prior filing of a motion for reconsideration is not
required (Sec. 1, Rule 45
h) In appeal by certiorari, the appellate court
is in the exercise of its appellate jurisdiction
and power of review
e) An original action for certiorari, unless a
writ of preliminary injunction or a temporary
restraining order shall have been issued, does
not stay the challenged proceeding.
f) In certiorari as an original action, the
parties are the aggrieved party against the
lower court or quasi-judicial agency and the
prevailing parties, who thereby respectively
become the petitioner and respondents.
g) in certiorari as an original action, a motion
for reconsideration is a condition precedent
(Villa-Rey Transit vs. Bello, G.R. No. L-18957,
April 23, 1963), subject to certain exceptions.
h) in certiorari as an original action, the
higher court exercises original jurisdiction
under its power of control and supervision over
the proceedings of lower courts.
57

XXVIII. ANNULMENT OF JUDGMENT (RULE 47)

1. Q: What are the grounds for annulment of judgment?

A: Extrinsic fraud, lack of jurisdiction over the subject matter, lack of jurisdiction over the person
of the defendant, and lack of due process.

2. Q: Where to file the petition?

a) Final and executory judgment or judgment of the MTC- file the petition to the RTC
( Basis: Sec. 10, Rule 47)
b) Regional Trial Court to Court of Appeals (Basis: Sec. 9, B.P. 129)

3. Q: What is the requirement for the filing of the petition?

A: Annulment of judgment is only available if the remedy of appeal, motion for reconsideration,
new trial, and petition for relief are no longer available, nor the petitioner did not file any motion
to quash writ of execution before the lower court

4. Q: What is the remedy in case of denial of the petition?

A: Appeal either under Rule 41 or 45 since the court is exercising original jurisdiction, and the
judgment is appealable.

5. Q: Can the Court of Tax Appeals entertain a petition for annulment of a judgment of a
Division or of the Regional Trial Court?

A: No, the Revised Rules of the CTA and even the Rules of Court which apply suppletorily
thereto provide for no instance in which the en banc may reverse, annul or void a final decision
of a division or of the Regional Trial Court. Commissioner of Internal Revenue vs. Kepco
Corporation, G.R. No. 199422, June 21, 2016)

6. Q: Can the Court of Appeals annul the decision of the Securities and Exchange
Commission?

A: No, Court of Appeals has no jurisdiction to entertain a petition to annul a final decision of the
SEC under Rule 47. It applies only to judgment or final orders of the Regional Trial Court in civil
cases per Sec. 1. Galang vs. CA, 472 SCRA 259 [2005])

7. Q: Is failure to state a cause of action a ground for annulment of judgment?

A: No, it is a ground for dismissal of the action of the Rules of Court before the defendant or
respondent files a responsive pleading. (Apostolic Vicar of Tabuk, Inc. vs. Sps. Ernesto and
Elizabeth Sison and Venancio Wadas, G.R. No. 191132, January 27, 2016)

8. Q: What are the effects of a judgment of annulment?

A: A judgment of annulment shall:

1) Set aside the questioned judgment or final order or resolution; and

2) Render the same null and void, without prejudice to the original action being refiled in
the proper court.

9. Q: What are the effects of a judgment of annulment if it is based on extrinsic fraud?

A: 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.
58

SPECIAL CIVIL ACTIONS

CERTIORARI, PROHIBITION AND MANDAMUS (RULE 65)

1. Q: What Is A Petition for Certiorari?

A: A petition for certiorari under Rule 65 of the Rules of Court is a pleading limited to
correction errors of jurisdiction or grave abuse of discretion amounting to lack or excess of
jurisdiction. Requirements are alleged in and established by the petition. (Lopez Tan vs. Sps.
Antazo, G.R. No. 187208, February 23, 2011)

2. Q: When is the remedy of certiorari available?

A: 1) When the court or tribunal committed grave abuse of discretion amounting to

lack or in excess of jurisdiction in rendering the judgment, order or resolution;
2) When there is no plain, adequate, speedy remedy or appeal in the ordinary
course of law;
3) When the judgment or order is not appealable under Sec. 1, Rule 41.

3. Q: What is the “Doctrine of Hierarchy of Courts?

A: The Court will not entertain direct resort to it unless the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling circumstances justify availment of a remedy
within and calling for the exercise of primary jurisdiction.

4. Q: When to file the petition?

A: The petition shall be filed within sixty (60) days from the notice of the judgment, order or
resolution, or from the notice of the order of the denial of the motion for reconsideration or new
trial.

5. Can the sixty (60) day period be extended?

A: Rule 65, Section 4 of the Revised Rules of Court explicitly states that Certiorari should be
instituted within a period of 60 days from notice of the judgment, order, or resolution sought to
be assailed. The 60-day period is non- extendible to avoid any unreasonable delay that would
violate the constitutional rights of parties to a speedy disposition of their case.

6. Q: Are there any exceptions?

A: Just like any rule, however, there are recognized exceptions to the strict observance of
the 60-day period for filing a petition for Certiorari, viz.:
 
(1) most persuasive and weighty reasons;
  (2) to relieve a litigant from an injustice not commensurate with his failure to comply with
the prescribed procedure;
  (3) good faith of the defaulting party by immediately paying within a reasonable time
from the time of the default;
  (4) the existence of special or compelling circumstances;
  (5) the merits of the case;
  (6) a cause not entirely attributable to the fault or negligence of the party favored by the
suspension of the rules;
  (7) a lack of any showing that the review sought is merely frivolous and dilatory;
  (8) the other party will not be unjustly prejudiced thereby;
  (9) fraud, accident, mistake, or excusable negligence without appellant's fault;
  (10) peculiar legal and equitable circumstances attendant to each case;
  (11) in the name of substantial justice and fair play;
  (12) importance of the issues involved; and
(13) exercise of sound discretion by the judge guided by all the attendant circumstances.
There should be an effort, though, on the part of the party invoking liberality to advance a
59

reasonable or meritorious explanation for his/her failure to comply with the rules. (Hon. Philip A.
Aguinaldo, et al. Vs. His Excellency President Benigno Simeon C. Aquino III, et al. G.R. No.
224302. November 29, 2016)

7. Q: What is effect of the filing of the petition on the action?

A: Mere filing of the petition for certiorari will not stop the proceedings below, unless restrained
by an injunction. (Sec. 7, Rule 65)

8. Q: Is there any exception to the above rule?

A: Yes, under the Principle of judicial courtesy it is an exception to Sec. 7, Rule 65.

9. Q: What is the effect of failure to proceed with the case in the absence of
TRO/Injunction?

A: Failure of the judge to proceed with the case in the absence of TRO/Injunction he will be
liable administratively. (A.M. NO. 07-7-12-SC)

10.. Q: How can the court acquire jurisdiction over the person of the defendant?

A: The court shall acquire jurisdiction over the person of the respondent by the service on him
of its order or resolution indicating its initial action on the petition or by his voluntary submission
to such jurisdiction. (Sec. 4, Rule 46)

11. Q: Can the issue of constitutionality be raised in a petition for certiorari?

A: YES. Petition for certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and
executive officials, as there is no other plain, speedy or adequate remedy in the ordinary course
of law. (DENR Employees Union (DENREU) and Kalipunan Ng Mga Kawani Sa Kagawaran Ng
Kalikasan (K4) v. Secretary Florencio B. Abad of The Department of Budget and Management and
The Commission on Audit, G.R. No. 204152, January 19, 2021)

12. Q: What is the remedy in case of decision in an action for declaration of presumptive
death?

A: Petition for certiorari under Rule 65 of the Rules of Court is the proper remedy to question
the RTC's Decision in a summary proceeding for the declaration of presumptive death is
immediately final and executory pursuant to Art. 141 of the Family Code

13. Q: What is the remedy in case of decision of the NLRC or Sec. of Labor?

A: Decision final order of the NLRC, Secretary of Labor is reviewable thru a petition for certiorari
under Rule 65, since there is no appeal, plain adequate, speedy remedy in the ordinary course
of law provided by the NLRC Rule of Procedure or Labor Code. (KEY WORDS)

14. Q: What is the remedy in case of decision in a small claim case? (2013 Bar Exam)

A: The proper remedy is a petition for certiorari with TRO/injunction considering that Sec. 24 of
the 2016 Revised Rules on Small Claims Case specifically provides that “the judgment is final,
immediately executory and unappealable, hence there is no plain, adequate, speedy remedy or
appeal in the ordinary course of law, hence certiorari is but proper.

15. Q: Is certiorari available in case of double jeopardy?

A: Yes, certiorari is an exception to double jeopardy /judgment of acquittal grounded on two (2)
exceptional grounds, namely: in a judgment of acquittal rendered with grave abuse of discretion
by the court; and where the prosecution had been deprived of due process

16. Q: Will petition for certiorari be available against judgment by default?

60

A: True, in cases of default judgments, the remedy of the party declared in default is appeal. But
when that party charges the trial court with grave abuse of discretion amounting to excess of
jurisdiction in declaring this party in default and eventually rendering judgment against it, the
extraordinary remedy of certiorari under Rule 65 of the Rules of Court may be availed of. (National
Power Corporation and National Power Board vs. Emma Y. Baysic and Narcisa G. Santiago, G.R.
No. 213893, September 25, 2019)

17. Q: What are the requisites for a party to be entitled to a writ of prohibition?

A: For a party to be entitled to a writ of prohibition, he must establish the following requisites:

1) it must be directed against a tribunal, corporation, board or person exercising functions,

judicial or ministerial;

2) the tribunal, corporation, board or person has acted without or in excess of its jurisdiction,
or with grave abuse of discretion; and

3) there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course
of law. (P/S INSP. Samson Belmonte et al vs. Office of the Deputy Ombudsman for the Military and
other Law Enforcement Offices, Office of the Ombudsman, G.R. No. 197665, January 13, 2016)

18. Q: Will prohibition be an available remedy to challenge the constitutionality of laws

and rules granting discount to senior citizens and PWDs?

A: Yes. Prohibition was also recognized as a proper remedy to prohibit or nullify acts of
executive officials that amount to usurpation of legislative authority. And, in a number of
jurisprudence prohibition was allowed as a proper action to assail the constitutionality of a law or
prohibit its implementation. (Southern Luzon Drug Corporation, vs. The Department of Social
Welfare and Development, The National Council for The Welfare of Disabled Persons, The
Department of Finance, and The Bureau of Internal Revenue, G.R. No. 199669, En Banc, April 25,
2017, Reyes, J.)

19. Q: When will a petition for mandamus be available?

A: A party aggrieved in the action/proceedings may file a verified petition when any tribunal
corporation, board, officer or person:

1) Unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station; or

2) Unlawfully excludes another from the use and enjoyment of a right or office to which such
other is entitled; and

3) There is no other plain, speedy and adequate remedy in the ordinary course of law. (Sec.
3, Rule 65)

20. Q: Will mandamus lie in case of premature acts to be done by the Judicial and Bar
Council?

A: No. The Supreme Court found no sufficient grounds to grant the petitions for mandamus and
to issue a writ of mandamus against the JBC. The actions for that purpose are premature,
because it is clear that the JBC still has until May 17, 2010, at the latest, within which to submit
the list of nominees to the President. (Arturo M. De Castro vs. Judicial and Bar Council [JBC] and
President Gloria Macapagal-Arroyo, G.R. No. 191002, March 17, 2010)

21. Q: Will mandamus lie to recover informer’s reward on the Marcos wealth based on the two
letters of the claimant?

A: NO. It cannot legitimize a manifest attempt at infringing statutorily institutionalized processes. The
availability of a more basic recourse ahead of a Petition for Mandamus before this Court similarly
demonstrates that petitioner failed to exhaust administrative remedies of processing of his claims by
the Bureau of Internal Revenue and the Department of Finance, and their final resolution by the
Secretary of Finance. (Danilo A. Lihaylihay, vs. The Treasurer of The Philippines Roberto C. Tan,
Secretary of Finance Margarito B. Teves, Secretary of The Department of Environment and Natural
61

Resources, and The Governor of Bangko Sentral Ng Pilipinas (BSP), G.R. No. 192223, Third
Division, July 23, 2018, Leonen, J.)

22. Q: What is “material dates rule?”

A: Under the material dates rule, a petition must allege three (3) material dates which is
necessary which are as follows:

1) The date when the judgment or final order or resolution was received;
2) The date when the motion for reconsideration or new trial was filed; and
3) The date when the notice of the denial thereof was received. (Great Southern
Maritime Services Corporation vs. Acuna, 452 SCRA 422, February 28, 2005)

23. Q: What are the exceptions on the filing of a motion for reconsideration?

A: The following instances listed hereunder, allows resort to the remedy of certiorari even without
the required motion for reconsideration, as follows, to wit:

1) Where the order is a patent nullity, as where the court a quo has no jurisdiction;
2) Where the question raised in the certiorari proceeding have been duly raised and passed
upon by the lower court, or are the same as those raised and passed upon in the lower court;
3) Where there is an urgent necessity for the resolution of the question and any further delay
would prejudice the interest of the government or the petitioner or the subject of the action is
perishable;
4) Where under the circumstances, a motion for reconsideration would be useless;
5) Where petitioner was deprived of due process, and there is extreme urgency for relief;
6) Where, in a criminal case, relief from an order of arrest is urgent and the granting of such
relief by the trial court is improbable;
7) Where the proceedings in the lower court are a nullity for lack of due process;
8) Where the proceeding were ex parte or in which the petitioner had no opportunity to
object; and
9) Where the issue raised is one purely of law or where public interest is involved. (Marawi
Maranatao General Hospital, Inc. vs. CA, et al., G.R. No. 141008, January 16, 2001; Dominga Ruiz
vs. Cirila Delos Santos, G.R. No. 166386, January 27, 2009; Pio Delos Reyes [Deceased],
represented by Heirs Fidel Delos Reyes, et al. vs. Honorable Waldo Q. Flores, G.R. No. 168726,
March 5, 2010)

24. Q: Are petitions for certiorari, prohibition and mandamus allowed under the Rules on
Summary Procedure.

A: No, under Se. 19(g) of the Rules on Summary Procedure petitions certiorari, prohibition and
mandamus against an interlocutory order are prohibited pleadings.

25. Q: Are petitions for certiorari, prohibition and mandamus allowed under the 2016 Revised
Rules on Small Claims Cases?

A: No, Sec. 16(g) of the 2016 Revised Rules on Small Claims Cases petitions certiorari, prohibition
and mandamus against an interlocutory order are prohibited pleadings.

26. Q: Are petitions for certiorari, prohibition and mandamus allowed under the 2020 Rules of
Procedure for Admiralty Cases?

A: No, Sec. 2(g) of Rule 2, Part II of the 2020 Rules of Procedure for Admiralty Cases petitions
certiorari, prohibition and mandamus against an interlocutory order are prohibited pleadings.

27. Q: Are petitions for certiorari, prohibition and mandamus allowed under the Rules on Writ
of Amparo.

A: No, under Se. 11(l) the Rules on Writ of Amparo petitions certiorari, prohibition and mandamus
against any interlocutory order are prohibited pleadings.

28. Q: Are petitions for certiorari, prohibition and mandamus allowed under the Rules on Writ
of Habeas Data.

A: No, under Se. 13(l) the Rules on Writ of Habeas data petitions for certiorari, prohibition and
62

mandamus against any interlocutory order are prohibited pleadings.

29. Q: Distinguish mandamus and continuing mandamus? (2pts.)

Mandamus Continuing Mandamus

a) Mandamus is an extraordinary remedy that a) Continuing mandamus is a writ issued by a

can be resorted only in case of extreme necessity
where the ordinary forms of procedure are
powerless to afford relief where there is no other
clear, adequate and speedy remedy. Before a writ
may be issued, it is obligatory upon the petitioner
to exhaust all remedies in the ordinary course of
law. He must show that the duty sought to be
performed must be one which the law specifically
enjoins as a duty resulting from an office. (Aquino
vs. Mariano, 129 SCRA 532);
b) Petition for mandamus can be filed before the
Supreme Court, Court of Appeals,
Sandiganbayan, Regional Trial Court;
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 18, Part I A.M. No. 09-6-8, Rules of
Procedure for Environmental Cases);
b) Petition for continuing mandamus can be filed
with Supreme Court, Court of Appeals and
Regional Trial Court:

30. Q: What are the distinctions between, certiorari, prohibition and mandamus?

A: The distinction between certiorari, prohibition, and mandamus under the rules are as follows, to
wit:

Certiorari Prohibition Mandamus

a) Certiorari is intended to a) Prohibition is intended to a) Mandamus is intended

correct an act performed by the prevent the commission or car- to compel the performance
respondents; rying out of an act; of the act desired;
b) Certiorari extends only to Prohibition, to discretionary b) Mandamus, to
discretionary acts; and ministerial acts; ministerial acts;

c) Certiorari shall lie only against Prohibition is available against c) Mandamus is available
a respondent exercising judicial respondents who exercise against respondents who
or quasi-judicial functions, judicial and/or non-judicial exercise judicial and/or
functions. non-judicial functions.

E. QUO WARRANTO (RULE 66)

1. Q: What is Quo warranto?

Quo warranto is a special civil action brought by means of a verified petition in the
name of the Republic of the Philippines against: (a) a person who usurps, intrudes into, or
unlawfully holds or exercises a public office, position, or franchise; or (b) a public officer who
does an act which constitutes a ground for the forfeiture of his office; or (c) an association which
acts as a corporation within the Philippines without being legally incorporated or without
authority so to act. (Sec. 1, Rule 66)

2. Q: When and against whom a petition for quo warranto may be filed?

A: An action for the usurpation of a public office, position or franchise may be commenced
by a verified petition brought in the name of the Republic of the Philippines against:

1) A person who usurps, intrudes into, or unlawfully holds or exercises a public office,
position or franchise;
2) A public officer who does or suffers an act which, by provision of law, constitutes a
ground for the forfeiture of his 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)
63

3. Q: Will quo warranto lie against a sitting Chief Justice for her failure to submit her
Statement of Assets, Liabilities and Net Worth (SALN)?

A: YES. For lack of a constitutional qualification, the respondent is ineligible to hold the position of a
Chief Justice and is merely holding a colorable right or title thereto. Thus, she never attained the
status of an impeachable official and her removal from the office, other than by impeachment is
justified. (Republic of The Philippines, Represented by Solicitor General Jose C. Calida, Vs. Maria
Lourdes P.A. Sereno, G.R. No. 237428, En Banc, June 19, 2018, Tijam, J.)

4. Q: Will quo warranto lie in case the public officer is holding temporary appointment to the
office?

A: NO. Quo warranto will not lie if the public officer is holding temporary appointment to the office.
The Court ruled that “one who holds a temporary appointment has no fixed tenure of office; his
employment can be terminated at the pleasure of the appointing power, there being no need to show
that the termination is for cause.” Emmanuel de Castro vs. Emerson Carlos, G.R. No. 194994, April
16, 2013)

5. Q: Can the nomination in the JBC be the subject of quo waranto?

A: NO. Nomination of the JBC for the position of Justice of the Sandiganbyan cannot be the
subject of a quo warranto in the absence of any right to the position of the applicant. Being
included in the list of nominees had given them only the possibility, but not the certainty, of
being appointed to the position, given the discretionary power of the President in making judicial
appointments. (Aguinaldo vs. Benigno Aquino.)

6. Q: What are the instances where the Solicitor General or public prosecutor must
commence an action for quo warranto?

A: The Solicitor General or a public prosecutor must commence an action for quo warranto in the
following instances:

1) When directed by the President of the Philippines;

2) When upon complaint; or
3) Otherwise, he has good reason to believe that any case specified in the preceding section
can be established by proof. (Sec. 2, Rule 66)

7. Q: What is the rule in case the Solicitor General or public prosecutor commences an action
for quo warranto with the permission of the court?

A: The Solicitor General or a public prosecutor may, with the permission of the court in which the
action is to be commenced may:

1) Bring such an action at the request and upon the relation of another person;

2) In such case the officer bringing it may first require an indemnity for the expenses and
costs of the action in an amount approved by and to be deposited in the court by the person at
whose request and upon whose relation the same is brought. (Sec. 3, Rule 66)

8. Q: When can an individual commence an action for quo warranto?

A: A person or an individual may under his own name commence and action for quo warranto when:

1) A person is claiming to be entitled to a public office; or

2) He is entitled to the position usurped or unlawfully held or exercised by another. (Sec. 5,
Rule 66) (Lee T. Arroyo vs. The Honorable Court of Appeals and Ulysses A. Brito, G.R. No. 202860,
April 10, 2019)

9. Q: Where to file the petition?

A: An action for petition against usurpation can be brought in the following courts:

a) Supreme Court;
b) The Court of Appeals, or
64

c) In the Regional Trial Court exercising jurisdiction over the territorial area where the
respondent or any of the respondents resides,

When the Solicitor General commences the action, it may be brought in the

a) Regional Trial Court in the City of Manila;

b) In the Court of Appeals, or
c) In the Supreme Court. (sec. 7, Rule 65)

10. Q: When to bring the action?

A: Nothing contained in this Rule shall be construed to authorize an action against a public
officer or employee for his ouster from office unless the same be commenced:

1) Within one (1) year after the cause of such ouster; or

2) Within one (1) year after the right of the petitioner to hold such office or position arose;
3) Nor to authorize an action for damages in accordance with the provisions of the next
preceding section unless the same be commenced within one (1) year after the entry of the
judgment establishing the petitioner’s right to the office in question. (Sec. 11)

11. Q: Distinguish quo warranto from impeachment?

Quo Warranto Impeachment

a) Quo Warranto is a procedural process for a) Impeachment is a constitutional process
removing a public officer for removing a public officer.
b) Quo Warranto can be initiated by the b) Impeachment can be initiated by the
Solicitor General or public prosecutor, or by House of Representatives;
any person claiming to be entitled to the
public office or position usurped or unlawfully
held or exercised by another. ;
a) Quo Warranto is available when (a) a a) Impeachment is when the impeachable
person who usurps, intrudes into, or officers committed culpable violation of the
unlawfully holds or exercises a public office, Constitution, graft and corruption, betrayal of
position, or franchise; or (b) a public officer public trust and other high crimes.
who does an act which constitutes a ground
for the forfeiture of his office; or (c) an
association which acts as a corporation
within the Philippines without being legally
incorporated or without authority so to act.
(Sec. 1, Rule 66)
b) Quo Warranto shall be decided by the b) Impeachment shall be decided by the
Court Senate

F. EXPROPRIATION/EMINENT DOMAIN (RULE 67)

1. Q: Which court has jurisdiction over complaint for eminent domain?

A: The Regional Trial Court has exclusive original jurisdiction over complaint for expropriation
since the subject matter of which is the right of the State to expropriate a private property upon
payment of just compensation, which is incapable of pecuniary estimation pursuant to Sec.
19 of B.P. 129, otherwise known as the Judiciary Reorganization Act of 1980)

2. Q: Will prohibition lie against expropriation proceeding?

A: There can be no prohibition against a procedure whereby the immediate possession of the land
under expropriation proceedings may be taken, provided always that due provision is made to
secure the prompt adjudication and payment of just compensation to the owner. (Sps. Antonio and
Fe Yusay vs. Court of Appeals and City Council of Mandaluyong City, G.R. No. 156684, April 6,
2011)
65

3. Q: May the local government unit expropriate private property?

A: Yes. An LGU may therefore exercise the power to expropriate private property only when
authorized by Congress and subject to the latter’s control and restraints, imposed “through the law
conferring the power or in other legislations.” In this case, Section 19 of RA 7160. (Sps. Antonio and
Fe Yusay vs. Court of Appeals and City Council of Mandaluyong City, G.R. No. 156684, April 6,
2011)

4. Q: Will an ejectment case be available against a public utility corporation with the power of
eminent domain?

A: No. A case filed by a landowner for recovery of possession or ejectment against a public utility
corporation, endowed with the power of eminent domain, which has occupied the land belonging to
the former in the interest of public service without prior acquisition of title thereto by negotiated
purchase or expropriation proceedings, will not prosper. (National Transmission Corporation v.
Bermuda Development Corporation, G.R. No. 214782, April 3, 2019)

5. Q: What are the requirements for the plaintiff to enter the property subject of
expropriation?

A: Upon the filing of the complaint or at any time thereafter and, the plaintiff shall have the right to
take or enter upon the possession of the real property involved if he complies with the following
requirements:

1) Due notice to the defendant;

2) Deposits with the authorized government depositary an amount equivalent to the as -

sessed value of the property for purposes of taxation to be held by such bank subject to the orders
of the court;

3) Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a
certificate of deposit of a government bank of the Republic of the Philippines payable on demand to
the authorized government depositary;

4) If personal property is involved, its value shall be provisionally ascertained and the
amount to be deposited shall be promptly fixed by the court. (Sec. 2, Rule 67)

6. Q: What is the requirement in case of expropriation for of infrastructure project of the

government?

A: Section 4 of Republic Act No. 8974, unlike Rule 67, Section 2 of the Rules of Civil Procedure,
requires immediate payment to the landowner of 100% of the value of the property based on
the current relevant zonal valuation of the Bureau of Internal Revenue. (National Power
Corporation Vs. Socorro T. Posada, Renato Bueno, Alice Balin, Adrian Tablizo, et al., G.R. No.
191945. March 11, 2015)

7. Q: What is the remedy of the defendant in case he has objections?

A: If a defendant has any objection to the filing of or the allegations in the complaint, or any objection
or defense to the taking of his property, he shall have the following remedy:

1) Serve his answer within the time stated in the summons. The answer shall specifically
designate or identify the property in which he claims to have an interest, state the nature and extent
of the interest claimed; and

2) Adduce all his objections and defenses to the taking of his property.

8. Q: Can a counterclaim, cross claim & third- party complaint be filed?

A: By express provision of Sec. 3, of Rule 67, No counterclaim, cross-claim or third-party

complaint shall be alleged or allowed in the answer or any subsequent pleading.

9. Q: Can a motion to dismiss be filed against a complaint for expropriation?

66

A: No motion to dismiss is allowed, only a verified omnibus answer is allowed to be filed

pursuant to Sec. 3, Rule 67 stating all available grounds for objection otherwise it is deemed
waived.

Basis of the answer: Sec. 3, Rule 67

10. Q: What is the continuing requirement in order for expropriation proceeding to

stand?

A: The Honorable Supreme Court has ruled that the taking of a private land in expropriation pro-
ceedings is always conditioned in its continued devotion to its public purpose. Once the purpose
is terminated or peremptorily abandoned, then the former owner, if he so desires, may seek its
reversion subject of course to the return at the very least of the just compensation received.
(Vda. De Ouano vs. Republic, G.R. No. 168770, February 9, 2011)

11. Q: What is the remedy of the owner of the land when the case was discontinued?

A: The expropriator who has taken possession of the property subject of expropriation is obliged
to pay reasonable compensation to the landowner for the period of such possession although
the proceedings had been discontinued on the ground that the public purpose for the
expropriation had meanwhile ceased. (Republic of the Philippines vs. Heirs of Saturnino Borbon
and Court of Appeals, G.R. No.165354, January 12, 2015, BERSAMIN, J.)

12. Q: What is just compensation?

A: "Just compensation [is defined as] the full and fair equivalent of the property sought to be
expropriated.x x x The measure is not the taker's gain but the owner's loss. [The compensation,
to be just,] must be fair not only to the owner but also to the taker."

13. Q: What is covered by just compensation?

A: The constitutional limitation of just compensation is considered to be the sum

equivalent to the market value of the property, broadly described to be the price fixed by
the seller in open market in the usual and ordinary course of legal action and competition
or the fair value of the property as between one who receives, and one who desires to
sell, if fixed at the time of the actual taking by the government. Thus, if property is taken for
public use before compensation is deposited with the court having jurisdiction over the case, the
final compensation must include interest on its just value to be computed from the time the
property is taken to the time when compensation is actually paid or deposited with the court. In
fine, between the taking of the property and actual payment, legal interests accrue in order to
place the owner in a position as good as (but not better than) the position he was in before the
taking occurred. (Land Bank Of The Philippines, Vs. Spouses Esteban And Cresencia Chu,
G.R. No. 192345, March 29, 2017, Del Castillo, J.)

14. Q: What is the reckoning period in ascertaining payment of just compensation?

A: In ascertaining just compensation, the fair market value of the expropriated property is
determined as of the time of taking. (Land Bank of The Philippines, Vs. Yatco Agricultural
Enterprises, G.R. No. 172551, January 15, 2014)

15. Q: Will determination of just compensation includes payment of interest?

A: If property is taken for public use before compensation is deposited with the court having
jurisdiction over the case, the final compensation must include interest[s] on its just value
to be computed from the time the property is taken to the time when compensation is
actually paid or deposited with the court. In fine, between the taking of the property and the
actual payment, legal interest[s] accrue in order to place the owner in a position as good as (but
not better than) the position he was in before the taking occurred. Evergreen Manufacturing
Corporation, vs. Republic of The Philippines, Represented by The Department of Public Works
and Highways, G.R. No. 218628, September 6, 2017; Republic of The Philippines, Represented
67

by The Department of Public Works and Highways, vs. Evergreen Manufacturing

Corporation, G.R. No. 218631, September 6, 2017)

16. Q: What are included in the determination of just compensation and consequential
damages?

A: Since just compensation requires that real, substantial, full and ample equivalent be given for
the property taken, the loss incurred by the affected owner necessarily includes all
incidental costs to facilitate the transfer of the expropriated property to the expropriating
authority, including the CGT, other taxes and fees due on the forced sale. (Republic of the
Philippines, represented by the Department of Public Works and Highways vs. Spouses
Marcelino Bunsay and Nenita Bunsay, G.R. No. 205473, December 10, 2019)

17. Q: May the court in expropriation proceedings resolve conflicting claims?

A: Yes. The court is empowered to entertain the conflicting claims of ownership of the
condemned or sought to be condemned property and adjudge the rightful owner thereof, in the
same expropriation case, is evident from Section 9 of the Revised Rule 69. (Republic of the
Philippines vs. Hon. Rosa Samson-Tatad and Spouses William and Rebecca To G.R. No.
187677, April 17, 2013)

18. Q: What is the remedy of the depositary bank in case of conflicting claimants?

A: Section 9 above-cited empowers the court to order payment to itself of the proceeds of the
expropriation whenever questions of ownership are yet to be settled. ((Philippine Veterans Bank
vs. Bases Conversion Development Authority, G.R. No. 173085, January 19, 2011)

19. Q: Can the capital gains tax and all other taxes be claimed as consequential
damages?

A: NO. Whatever is the value of the capital gains tax and all other taxes necessary for the
transfer of the subject property to the [Republic] are but consequential damages that should be
paid by the latter."

Since capital gains tax is a tax on passive income, it is the seller, or respondents
in this case, who are liable to shoulder the tax. (Republic Of The Philippines, Represented
By The Department Of Public Works And Highways (DPWH), Vs. Spouses Senando F.
Salvador And Josefina R. Salvador, G.R. No. 205428, June 7, 2017, G.R. No. 205428, Del
Castillo, J.)

20. Q: How can the fair market value determined?

A: Fair market value is determined at the time taking of the property when the State deprived
the landowner of the use and benefit of his property, as when the State acquires title to the
property or as of the filing of the complaint, per Section 4, Rule 67 of the Rules of Court.

21. Q: What are the orders or judgment which can be appealed in expropriation
proceedings?

A: The orders or judgment which can be appealed in expropriation proceedings shall be as

follows:

1) A final order sustaining the right to expropriate the property;

2) Order of determination of just compensation;
3) Judgment in expropriation proceeding.

22. Q: How to perfect an appeal in expropriation proceedings?

A: File a notice of appeal, record on appeal and the payment of the appeal docket and
other lawful fee within thirty (30) days from notice of the judgment or order or from notice of
the order denying the motion for reconsideration or new trial be under Sec. 3, Rule 41 since it
involves multiple appeals.
68

23. Q: What is the effect of the filing of an appeal from the judgment of the court?

A: In case of appeal from the judgment of the court, it shall have the effect:

1) The right of the plaintiff to enter upon the property of the defendant and appropriate
the same for public use or purpose shall not be delayed by an appeal from the judgment;

2) If the appellate court determines that plaintiff has no right of expropriation, judgment
shall be rendered ordering the Regional Trial Court to forthwith enforce the restoration to the de-
fendant of the possession of the property, and to determine the damages which the defendant
sustained and may recover by reason of the possession taken by the plaintiff. (Sec. 11)

24. Q: What are the two stages of expropriation?

A: There are two (2) stages of expropriation, the first is the determination 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, and the second is the determination of just compensation. National Power
Corporation Vs. Socorro T. Posada, Renato Bueno, Alice Balin, Adrian Tablizo, Et Al. G.R. No.
191945. March 11, 2015

CRIMINAL PROCEDURE

I. PROSECUTION OF OFFENSES

1) Prosecution of Offenses (Rule 110)

Q: How can the criminal actions instituted?

A: Criminal actions shall be instituted as follows:

(a) For offenses where a preliminary investigation is required pursuant to Sec. 1 of Rule 112, by
filing the complaint with the proper officer for purposes of conducting the requisite preliminary
investigation.

(b) For all other offenses, by filing the complaint or information directly with the Municipal Trial
Courts and Municipal Trial Courts, or the complaint with the office of the prosecutor. In Manila and other
chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in
the charter.

Q: Is a criminal information a pleading?

A: YES, because it commences a criminal action before the court which contains the allegations
constituting the acts complained of.

Q: Is payment of Filing Fees required?

A: Filling fees, when required, are assessed and become due for each initiatory pleading filed. In the
instant case, pleadings refer to the information filed in court. In the instant case, there are total of forty
(40) counts of violation of BP 22 that was filed before the MeTC. And each of the forty (40) was, in fact,
assessed its filing fees, individually, based on the amount of check one covers. Under the rules of criminal
procedure, the filing of forty (40) counts is equivalent to the filing of forty (40) different informations, as
each count represent an independent violation of BP 22. Filing fees are, therefore, due for each count and
may be paid for each count separately. (Richard Chua vs. The Executive Judge, Metropolitan Trial Court,
Manila, GR No. 202920, October 2, 2013)

Q: Who shall control the prosecution of a criminal action?

A: All criminal actions commenced by a complaint or information shall be prosecuted under the
direction and control of the prosecutor. However, in Municipal Trial Courts or Municipal Circuit Trial
69

Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any
peace officer, or public officer charged with the enforcement of the law violated may prosecute the case.
This authority shall cease upon actual intervention of the prosecutor or upon elevation of the case to the
Regional Trial Court.

Q: Is it required that the public prosecutor be present during the prosecution of criminal action
though it was already delegated to the private prosecutor?

A: YES. All criminal actions commenced by a complaint or information shall be prosecuted under the
direction and control of the prosecutor. The prosecutor when present and available, may delegate to a
competent private prosecutor the conduct of the prosecution of the case where there is a civil liability
arising from the court but subject to his control and supervision. Under the old rule, the private prosecutor
is not allowed to prosecute even by delegation in the absence of the public prosecutor. The prosecutor
must be physically present. The reason was explained by the Supreme Court in Visbal vs. Judge Ramos,
A.M. No. MTJ 00-1306, March 20, 2001 citing the case of People vs. Beriales.)

Q: When can the presence of public prosecutor be dispensed with?

A: In cases where only the civil liability is being prosecuted by a private prosecutor, the head of the
prosecution office must issue in favor of the private prosecutor a written authority to try the case even in
the absence of the public prosecutor. The written authority must be submitted to the court prior to the
presentation of evidence by the private prosecutor in accordance with Sec.5, Rule 110.

With this authority on record, the court may set the trial in the case and in other cases tried by
private prosecutors with delegated authority on separate days when the presence of the public prosecutor
may be dispensed with. (Par. 4, Part III A.M. 15-06-10-SC, Rules on Continuous Trial in Criminal Cases,
September 1, 2017)

Q: Who shall prosecute the crimes of adultery and concubinage?

A: The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the
offended spouse. The offended party cannot institute criminal prosecution without including the guilty
parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned
the offenders.

Q: Who shall prosecute the crimes of seduction, abduction and acts of lasciviousness?

A: The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted upon a
complaint filed by:

1) The offended party;

2) Her parents;
3) Grandparents;
4) Guardian;
5) Nor, in any case, if the offender has been expressly pardoned by any of them;
6) If the offended party dies or becomes incapacitated before she can file the complaint, and she
has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf.

Q: When is a complaint or information deemed sufficient?

A: A complaint or information is sufficient if it states the following:

1) It states the name of the accused;

2) The designation of the offense given by the statute;
3) The acts or omissions complained of as constituting the offense;
4) The name of the offended party;
5) The approximate date of the commission of the offense; and the place where the offense was
committed.

Q: How will the designation of the offense in the complaint or information be made?

A: In the designation of the offense in the complaint or information it shall:

1) State the designation of the offense given by the statute;

2) Aver the acts or omissions constituting the offense, and
3) Specify its qualifying and aggravating circumstances.;
70

4) 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: How to allege the cause of accusation in the complaint or information?

A: The acts or omissions complained of as constituting the offense and the qualifying and
aggravating circumstances must be:

1) Stated in ordinary and concise language and not necessarily in the language used in
the statute but in terms sufficient to enable a person of common understanding to know what
offense is being charged;

2) As well as its qualifying and aggravating circumstance and for the court to pronounce
judgment. (Sec. 9, Rule 110)

Q: What is the effect if the accused was convicted of a crime not alleged in the information?

A: Where the Information is insufficient, it cannot be the basis of any valid conviction. 

Quimvel v. People of the Philippines decrees:

The main purpose of requiring the elements of a crime to be set out in the Information is to enable
the accused to suitably prepare his defense because he is presumed to have no independent knowledge
of the facts that constitute the offense. The allegations of facts constituting the offense charged are
substantial matters and the right of an accused to question his conviction based on facts not
alleged in the information cannot be waived. 

As further explained in Andaya v. People:

No matter how conclusive and convincing the evidence of guilt may be, an accused
cannot be convicted of any offense unless it is charged in the information on which he is tried or
is necessarily included therein. To convict him of a ground not alleged while he is concentrating his
defense against the ground alleged would plainly be unfair and underhanded. The rule is that a variance
between the allegation in the information and proof adduced during trial shall be fatal to the criminal case
if it is material and prejudicial to the accused so much so that it affects his substantial rights. (Emphasis
added) (The People of the Philippines vs. Dante Cubay y Ugsalan, G.R. No. 224597, July 29, 2019)

Q: Can the accused be charged with Rape of minor and Sexual Abuse under one information?

A: NO. The Court observes that the DOJ charged Gil for Rape in relation to Child Abuse under Section
5(b), Article III of RA 7610 on account of the December 28, 2001 and April 23, 2002 incidents. Existing
jurisprudence, however, proscribes charging an accused of both crimes, rather he may be charged only
for either. As held in People v. Pangilinan, if the victim is 12 years or older, the offender should be
charged with either sexual abuse under Section 5(b) of RA 7610 or rape under 266-A (except
paragraph 1(d) of the Revised Penal Code. However, the offender cannot be accused of both crimes for
the same act because his right against double jeopardy will be prejudiced. (Iris Kristine Balois Alberto vs.
CA, GR No. 182130, June 19, 2013)

Q; What is the rule in case of qualifying and aggravating circumstances are present?

A: The trial court erred in impliedly characterizing the offense charged as sexual abuse under Sections 5
and 31 of R.A. No. 7610. Under Rule 110, Section 8 of the Rules of Court it is required that “ the
complaint or information shall state the designation of the offense given by the statute, aver the
acts or omissions constituting the offense, and specify its 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.” In the case at bar, appellant was accused in the information with
feloniously having carnal knowledge of his own minor daughter against her will by using his influence as a
father. Considering further that the minority of AAA and her relationship to appellant were both alleged in
the information and proven in court, the proper designation of appellant’s felony should have been
qualified rape. (People of the Philippines vs. Ricardo M. Vidana, G.R. No. 199210, October 23, 2013)

Q: What is the rule on Duplicity of the Offense?

A; The rule expressly provides that, a complaint or information must charge only one offense, except
when the law prescribes a single punishment for various offenses.

Q: What is the remedy of the accused?

71

A: The accused must file a motion to quash and raise the objection on duplicity of offense, otherwise it is
deemed waived.

Q: What is the effect if the accused failed to object on the duplicity of the offense?

A: Nonetheless, Section 3, Rule 120 of the Revised Rules of Criminal Procedure also states that “ when
two or more offenses are charged in a single complaint or information but the accused fails to
object to it before trial, the court may convict the appellant of as many as are charged and proved,
and impose on him the penalty for each offense, setting out separately the findings of fact and law in
each offense.” Consequently, since Armando failed to file a motion to quash the information, he can be
convicted with two counts of rape. (People of the Philippines vs. Armando Chingh y Parcia, G.R. No.
178323, March 16, 2011)

Q: How can the complaint or information be amended?

A: A complaint or information may be amended in the following manner;

1) In form or in substance, without leave of court and when it can be done without causing
prejudice to the rights of the accused.

  2) However, any amendment before plea, which downgrades the nature of the offense charged in
or excludes any accused from the complaint or information, can be made only upon motion by the
prosecutor, with notice to the offended party and with leave of court.

Q: When substitution of a complaint or information proper?

   
A: If it appears at any time before judgment that a mistake has been made in charging the proper
offense, the court shall:

1) Dismiss the original complaint or information upon the filing of a new one charging the proper
offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double
jeopardy. The court may require the witnesses to give bail for their appearance at the trial

Q: What constitute substantial amendment?

A: There is no precise definition of what constitutes a substantial amendment. According to jurisprudence,

substantial matters in the complaint or information consist of the recital of facts constituting the offense
charged and determinative of the jurisdiction of the court. Under Section 14, however,  the prosecution is
given the right to amend the information, regardless of the nature of the amendment, so long as the
amendment is sought before the accused enters his plea, subject to the qualification under the second
paragraph of Section 14.

Once the accused is arraigned and enters his plea, however, Section 14 prohibits the prosecution
from seeking a substantial amendment, particularly mentioning those that may prejudice the rights of the
accused. One of these rights is the constitutional right of the accused to be informed of the nature and
cause of accusation against him, a right which is given life during the arraignment of the accused of the
charge against him. The theory in law is that since the accused officially begins to prepare his defense
against the accusation on the basis of the recitals in the information read to him during arraignment, then
the prosecution must establish its case on the basis of the same information.

" Amendments that do not charge another offense different from that charged in the original one; or
do not alter the prosecution's theory of the case so as to cause surprise to the accused and affect the
form of defense he has or will assume are considered merely as formal amendments."   Furthermore, as
relevantly pointed out by the CA, Quiambao has not yet entered his plea; hence, the Amended
Information could still be further amended. (Cezar T. Quiambao vs. People of the Philippines and Star
Infrastracture Development Corporation, G.R. No. 195957, January 15, 2020)

Q: What are the distinctions between amendment and substitution of information?

Amendment Substitution

a) Amendment may involve either formal or substantial a) Substitution necessarily involves a substantial
changes. change from the original charge

b) Amendment before plea has been entered, can be b) In substitution of information must be with leave of
effected without leave of court. court, as the original information has to be dismissed.
72

c) Where the amendment is only as to form, there is c) In substitution of information, another preliminary
no need for another preliminary investigation and the investigation is necessary and the accused has to
retaking of the plea of the accused. plead anew to the new information.

d) An amendment of information refers to the same
offense charge in the original information or to an
offense which necessarily includes or is necessarily
included in the original charge, hence substantial
amendments to the information after the plea has been
taken cannot be made over the objection of the
accused as he could invoke double jeopardy.
d) On the other hand, substitution requires or
presupposes that the new information involves a
different/offenses which does not include or is not
necessarily included in the original charge, hence the
accused cannot claim double jeopardy. (Claudio J.
Teehankee vs. Hon. Job B. Madayag and People of
the Philippines, 207 SCRA 134)

Q: Can an amendment made in the information after plea to add a co-accused and the insertion of
the of the phrase “conspiring and confederating together’?

A: The facts alleged in the accusatory part of the amended information are similar to that of the original
information except as to the inclusion of Corpus as Samonte's co-accused and the insertion of the phrase
"conspiring and confederating together." The allegation of conspiracy does not alter the basic theory of
the prosecution that Samonte willfully and intentionally shot Angelita. Hence, the amendment is merely
formal. (Mayor “Jong”Amado Corpus vs Judge Ramon Pamular, G.R. No. 186403, September 5, 2018)

Q: What is the nature of venue in criminal cases?

A: In criminal cases, venue is jurisdictional. A court cannot exercise jurisdiction over a person charged
with an offense committed outside its limited territory (Hector Trenas v. People of the Philippines, G.R.
No. 195002, January 25, 2012)

Q: What are the rules on venue in criminal cases?

A: Subject to existing laws, the criminal action shall be instituted and tried in the following manner:

a) The court of the municipality or territory where the offense was committed or where any of its
essential ingredients occurred.

(b) Where an offense is committed in a train, aircraft, or other public or private vehicle in the course
of its trip, the criminal action shall be instituted and tried in the court of any municipality or territory
where such train, aircraft, or other vehicle passed during its trip, including the place of its
departure and arrival.

(c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action
shall be instituted and tried in the court of the first port of entry or of any municipality or territory
where the vessel passed during such voyage, subject to the generally accepted principles of
international law.

(d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal
Code shall be cognizable by the court where the criminal action is first filed.

Q: Where is the venue in libel cases?

A: The criminal and civil action for damages in cases of written defamations shall be filed simultaneous or
separately with the Regional Trial Court of the province or city where the libelous article is printed
and first published or where any of the offended parties actually resides at the time of the
commission of the offense. (Mary Rose A. Boto vs. Senior Assistant City Prosecutor Villena, A.C. No.
9684, September 18, 2013)

Q: Where is the venue of the criminal action involving public official falling under the jurisdiction
of the RTC?

A: “Subject to the rules promulgated by the Supreme Court, the cases falling under the jurisdiction of the
Regional Trial Court under this section shall be tried in a judicial region other than where the official holds
office. (Sec. 4, R.A. 10660)

Q: What is the remedy of the accused if the criminal action was filed on a wrong venue?

A: The accused may file a motion to quash information/complaint on the ground of lack of jurisdiction over
the subject matter of the offense under Sec. 3 (b) of Rule 117, considering that venue in criminal case is
jurisdictional since it is conferred by the penal statute.
73

Q: Can the court acquire jurisdiction over acts in violation of R.A. 9282 outside of Philippine
territory?

A: YES. The Philippine courts have jurisdiction when the abusive conduct or act of violence under Section
5(i) of R.A. No. 9262 was committed outside Philippine territory, that the victim be a resident of the place
where the complaint is filed in view of the anguish suffered being a material element of the offense. In the
present scenario, the offended wife and children of respondent husband are residents of Pasig City,
hence, the RTC of Pasig City may exercise jurisdiction over the case. (AAA vs BBB, G.R. No. 212448,
January 11, 2018)

Q: Where will the venue of an illegal recruitment case?

A: Section 9 of RA 8042 fixed an alternative venue from that provided in Section 15 (a) of the Rules of
Criminal Procedure, i.e., a criminal action arising from illegal recruitment may also be filed where
the offended party actually resides at the time of the commission of the offense and that the court
where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts .
(Eileen P. David vs. Glenda S. Marquez, G.R. No. 209859, June 5, 2017)

VIII. PROSECUTION OF CIVIL ACTION

Q: What is the rule on the institution of a criminal action as regards the civil aspect of the case?
Exceptions?

A: When a criminal action is instituted, the civil action for the recovery of civil liability arising from the
offense charged shall be deemed instituted with the criminal action unless:

1) The offended party waives the civil action;

2) Reserves the right to institute it separately; or
3) Institutes the civil action prior to the criminal action.

Q: What is the substantive basis of the implied institution of the civil liability in the criminal
action?

A: Art. 100 of the Revised Penal Code provides that “Every person criminally liable for an offense is also
civilly liable”

Q: What does the civil liability of the accused include?

A: Although correct in finding the accused guilty of malversation the Court notes that both lower courts
did not require the petitioner to pay the amount of P37,876.98 subject of the malversation. That omission
was plain error that we should now likewise correct as a matter of course, for there is no denying that
pursuant to Article 100 of the Revised Penal Code, every person criminally liable for a felony is also civilly
liable. (Bernardo Mesina vs. People of the Philippines, G.R. No. 162489, June 17, 2015, BERSAMIN, J)

Q: When to make reservation of the separate civil action?

A: The reservation of the right to institute separately the civil action shall be made before the
prosecution starts presenting its evidence and under circumstances affording the offended party a
reasonable opportunity to make such reservation.

Q: What is the rule on docket fees to enforce civil liability when the amount is not specified in the
complaint or information?

A: When the offended party seeks to enforce civil liability against the accused by way of moral, nominal,
temperate, or exemplary damages without specifying the amount thereof in the complaint or information,
the filing fees therefore shall constitute a first lien on the judgment awarding such damages.

Q: What is the rule on docket fees to enforce civil liability when the amount is specified in the
complaint or information?

A: Where the amount of damages, other than actual, is specified in the complaint or information, the
corresponding filing fees shall be paid by the offended party upon the filing thereof in court.

Q: What is the effect of non-payment/deficient of docket fees if there is a civil liability impliedly
instituted in the criminal action?
74

A: Rule 111 of the Rules of Criminal Procedure states that except as otherwise provided in these Rules,
no filing fees shall be required for actual damages. The non-payment of the prescribed filing fees at
the time of the filing of the complaint or other initiatory pleading fails to vest jurisdiction over the
case in the trial court. Yet, where the plaintiff has paid the amount of filing fees assessed by the clerk of
court, and the amount paid turns out to be deficient, the trial court still acquires jurisdiction over the case,
subject to the payment by the plaintiff of the deficiency assessment. (Isabel Ramones vs Spouses
Teodorico and Elenita Guimoc, G.R. No. 226645, August 13, 2018)

Q: Are counterclaim, cross-claim or third- party complaint allowed in criminal action?

A: Under the new rule, counterclaims, crossclaims and, third-party complaints are now prohibited
pleadings. However, these claims may still be pursued in separate civil action. The ordinary rules of Civil
Procedure shall apply. In the case of Javier vs. IAC [171 SCRA 367] allowing a counterclaim had been
abandoned. Also, the case of Shafer vs. Judge of RTC of Olongapo City [167 SCRA 367] which allowed a
third-party complaint.

Q: Can there be a reservation on the civil aspect of violation of BP. 22?

 A: NO. The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file such civil action separately shall be allowed.

Q: What are the effects of the death of accused during the pendency of the case?

A: The death of the accused after arraignment and during the pendency of the criminal action shall:

1) Extinguish the civil liability arising from the delict;

2) However, the independent civil action instituted under section 3 of this Rule or which thereafter
is instituted to enforce liability arising from other sources of obligation may be continued against the
estate or legal representative of the accused after proper substitution or against said estate, as the case
may be
3) The heirs of the accused may be substituted for the deceased without requiring the
appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor
heirs.
4) The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.

Case Law:

Finally, we observe that the Court of Appeals did not rule on the effect of the death of Eddie
Malogsi during the pendency of this case. Considering that no final judgment had been rendered against
him at the time of his death, whether or not he was guilty of the crime charged had become irrelevant
because even assuming that he did incur criminal liability and civil liability ex delicto, these were totally
extinguished by his death, following Article 89(1) of the Revised Penal Code and, by analogy, our ruling in
People v. Bayotas. Therefore, the present criminal case should be dismissed with respect only to the
deceased Eddie Malogsi. (People Of The Philippines Vs. Marcelino Dadao, Et Al., G.R. No. 201860,
January 22, 2014)

Q: What is prejudicial question?

A: A prejudicial question is understood in law to be that which arises in a case the resolution of
which is a logical antecedent of the issue involved in the criminal case, and the cognizance of
which pertains to another tribunal. It is determinative of the criminal case, but the jurisdiction to try and
resolve it is lodged in another court or tribunal. It is based on a fact distinct and separate from the crime
but is so intimately connected with the crime that it determines the guilt or innocence of the accused. The
rationale behind the principle of prejudicial question is to avoid conflicting decisions. (San Miguel
Properties, Inc. vs. SEC. Hernando B. Perez, et al., GR No. 166836, September 4, 2013)

Q: is a civil action for unfair competition, damages and cancellation and prejudicial question in a
criminal action for unfair competition?

A: We note, to begin with, that Civil Case No. Q-00-41446, the civil case filed by Caterpillar in the RTC in
Quezon City, was for unfair competition, damages and cancellation of trademark, while Criminal Cases
Nos. Q-02-108043-44 were the criminal prosecution of Samson for unfair competition. A common element
of all such cases for unfair competition - civil and criminal - was fraud. Under Article 33 of the Civil
Code,  a civil action entirely separate and distinct from the criminal action may be brought by the injured
party in cases of fraud, and such civil action shall proceed independently of the criminal prosecution
75

 A civil action for damages and cancellation of trademark cannot be considered a prejudicial
question by which to suspend the proceedings in the criminal cases for unfair competition. A prejudicial
question is that which arises in a civil case the resolution of which is a logical antecedent of the issues to
be determined in the criminal case. It must appear not only that the civil case involves facts upon which
the criminal action is based, but also that the resolution of the issues raised in the civil action will
necessarily be determinative of the criminal case.

The elements of a prejudicial question are provided in Section 7 of Rule 111, Rules of Court,  to
wit: (a) a previously instituted civil action involves an issue similar to or intimately related to the issue
raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not
the criminal action may proceed. (Caterpillar, Inc., Vs. Manolo P. Samson, G.R. No. 205972, November
9, 2016)

Q: Is an action for specific performance filed before the HLURB a prejudicial question in criminal
case for violation of Sec. 25, PD No. 957?

A: The pendency of an administrative ease for specific performance brought by the buyer of residential
subdivision lots in the Housing and Land Use Regulatory .Board (HLURB) to compel the seller to deliver
the transfer certificate of title (TCTs) of the fully paid Jots is properly considered a ground to suspend a
criminal prosecution for violation of Sectio11 25 of Presidential Decree NL). 9571 on tile ground of a
prejudicial question. The administrative determination is a logical antecedent of the resolution of the
criminal charges based on non-delivery of the TCTs.

Conformably with the foregoing, the action for specific performance in the HLURB would
determine whether or not San Miguel Properties was legally entitled to demand the delivery of the
remaining 20 TCTs, while the criminal action would decide whether or not BF Homes’ directors and
officers were criminally liable for withholding the 20 TCTs. The resolution of the former must obviously
precede that of the latter, for should the HLURB hold San Miguel Properties to be not entitled to the
delivery of the 20 TCTs because Atty. Orendain did not have the authority to represent BF Homes in the
sale due to his receivership having been terminated by the SEC, the basis for the criminal liability for the
violation of Section 25 of Presidential Decree No. 957 would evaporate, thereby negating the need to
proceed with the criminal case. (San Miguel Properties, Inc. vs. Sec. Hernando Perez, G.R. No. 166836,
September 4, 2013, BERSAMIN, J)

Q: What is the effect of raising prejudicial question?

A: A party who raises a prejudicial question is deemed to have hypothetically admitted that all the
essential elements of the crime have been adequately alleged in the information, considering that the
Prosecution has not yet presented a single piece of evidence on the indictment or may not have rested its
case. A challenge to the allegations in the information on the ground of prejudicial question is in effect a
question on the merits of the criminal charge through a non-criminal suit. (San Miguel Properties, Inc. vs.
SEC. Hernando B. Perez, et al., GR No. 166836, September 4, 2013)

Q: Can an Independent Civil Action give rise to prejudicial question in the prosecution of a
criminal case?

A: NO. It is well settled that a civil action based on defamation, fraud and physical injuries may be
independently instituted pursuant to Article 33 of the Civil Code, and does not operate as a prejudicial
question that will justify the suspension of a criminal case. This was precisely the Court’s thrust in G.R.
No. 148193, thus: Moreover, neither is there a prejudicial question of the civil and the criminal action can,
according to law, proceed independently of each other. Under Rule 111, Section 3 of the Revised Rules
on Criminal Procedure, iun the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code, the
independent civil action may be brought by the offended party. It shall proceed independently of the
criminal action and shall require only a preponderance of evidence. In no case, however, may the
offended party recover damages twice for the same act or omission charged in the criminal action.
(Rafael Jose Consing, Jr. vs. People of the Philippines, G.R. No. 161075, July 15, 2013)

Q: Can an action for rescission of contract a prejudicial question to violation of BP 22?

A: No. To properly appreciate if there is a prejudicial question to warrant the suspension of the criminal
actions, reference is made to the elements of the crimes charged. The issue in the criminal actions upon
the violations of Batas Pambansa Blg. 22 is, therefore, whether or not Reyes issued the dishonoured
checks knowing them to be without funds upon presentment. On the other hand, the issue in the civil
action for rescission is whether or not the breach in the fulfillment of Advanced Foundation’s obligation
warranted the rescission of the conditional sale.. Indeed, under Batas Pambansa Blg. 22, the mere
issuance of a worthless check was already the offense in itself. Under such circumstances, the criminal
proceedings for the violation of Batas Pambansa Blg. 22 could proceed despite the pendency of the civil
76

action for rescission of the conditional sale. (Teodoro A. Reyes vs. Ettore Rossi, GR No. 159823,
February 18, 2013, Bersamin J.)

Q: Is a Petition for rehabilitation a prejudicial question to a criminal action for violation of B.P. 22?

A: NO. The purpose of suspending the proceedings under P.D. No. 902-A is to prevent a creditor from
obtaining an advantage or preference over another and to protect and preserve the rights of party litigants
as well as the interest of the investing public or creditors. It is intended to give enough breathing space for
the management committee or rehabilitation receiver to make the business viable again, without having to
divert attention and resources to litigations in various fora. Xxx Whereas, the gravamen of the offense
punished by B.P. Blg. 22 is the act of making and issuing a worthless check; that is, a check that is
dishonored upon its presentation for payment. It is designed to prevent damage to trade, commerce, and
banking caused by worthless checks. In Lozano v. Martinez, this Court declared that it is not the
nonpayment of an obligation which the law punishes. Xxx Consequently, the filing of the case for
violation of B.P. Blg. 22 is not a “claim” that can be enjoined within the purview of P.D. No. 902-A.
True, although conviction of the accused for the alleged crime could result in the restitution,
reparation or indemnification of the private offended party for the damage or injury he sustained
by reason of the felonious act of the accused, nevertheless, prosecution for violation of B.P. Blg.
22 is a criminal action.” (Nari K. Gidwani vs. People of the Philippines, GR No. 195064, January 15,
2014)

Q: When will the civil liability which is impliedly instituted in the criminal action be extinguished?

A: The civil action based on delict may be deemed extinguished if there is a finding on the final judgment
in the criminal action that the act or omission from which the civil liability may arise did not exist or where
the accused did not commit the acts or omission imputed to him. (Lee Pue Liong vs. Chua Pue Chin Lee,
703 SCRA 240)

Q: When can private prosecutor intervene in the trial?

A: Under the Rules, where the civil action for recovery of civil liability is instituted in the criminal action
pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. Rule
111(a) of the Rules of Criminal Procedure provides that, “[w]hen a criminal action is instituted, the civil
action arising from the offense charged shall be deemed instituted with the criminal action unless the
offended party waives the civil action, reserves the right to institute it separately, or institutes the civil
action prior to the criminal action.” (Lee Pue Liong vs. Chua Pue Chin Lee, 703 SCRA 240)

IX. PRELIMINARY INVESTIGATION

Q: What is the nature of the right to preliminary investigation?

A: A person's rights in a preliminary investigation are subject to the limitations of procedural law. These
rights are statutory, not constitutional. The purpose of a preliminary investigation is merely to present
such evidence "as may engender a well-grounded belief that an offense has been committed and that the
respondent in a criminal complaint is probably guilty thereof." It does not 'call for a "full and exhaustive
display of the parties' evidence. Thus, petitioner has no right to cross-examine the witnesses
during a preliminary investigation. At this early stage, the Ombudsman has yet to file an information
that would trigger into operation the rights of the accused (found under Section 14(2) of Article III  of the
Constitution). "It is the filing of a complaint or information in court that initiates a criminal action,”  and
carries with it all the accompanying rights of an accused. (Jaime Dichaves V. Office Of The Ombudsman
And The Special Division Of The Sandiganbayan, G.R. No. 206310-11, December 7, 2016)

Q: Will injunction lie to restrain a preliminary investigation being conducted by the DOJ?

A: Injunction cannot be used as a tool to thwart criminal prosecutions because investigating the criminal
acts and prosecuting their perpetrators right away have always been in the interest of the public. The
injunction issued by the Pasig RTC inexcusably interfered with the DOJ's mandate under the
Administrative Code of 1987 to investigate the commission of crimes and to prosecute the offenders.
(Home Development Mutual Fund (HDMF) vs Christina Sagun, G.R. No. 205698, July 31, 2018)

Q: Can the court intervene in the determination of probable during preliminary investigation?

A: The determination of probable cause to charge a person in court for a criminal offense is exclusively
lodged in the Executive Branch of the Government, through the Department of Justice. Initially, the
determination is done by the investigating public prosecutor, and on review by the Secretary of Justice or
his duly authorized subordinate. The courts will respect the determination, unless the same shall be
shown to have been made in grave abuse of discretion amounting to lack or excess of jurisdiction.  
77

The courts could intervene in the determination of probable cause only through the special civil
action for certiorari under Rule 65 of the Rules of Court,  not by appeal through the petition for review
under Rule 43. Thus, the CA could not reverse or undo the findings and conclusions on probable cause
by the Secretary of Justice except upon clear demonstration of grave abuse of discretion amounting to
lack or excess of jurisdiction committed by the Secretary of Justice. (Caterpillar, Inc., Vs. Manolo P.
Samson, G.R. No. 205972, November 9, 2016)

Q: Is double jeopardy applicable in case of dismissal of the case during preliminary

investigation applicable?

A: No. Since the preliminary investigation stage is not part of the trial, the dismissal of a
case during preliminary investigation would not put the accused in danger of double
jeopardy in the event of a re-investigation or the filing of a similar case. (Jamaca v. People,
G.R. No. 183681, July 27, 2015)

Q: Does forum shopping exist in the determination of probable cause of the Secretary of
Justice and judicial determination of probable cause by the court?

A: No. These are two very different actions which should be separately assailed. and the party
is not guilty of forum shopping since there is no identity of relief and cause of action. (Co Vs.
Lim, G.R. Nos. 164669-70, October 30, 2009).

Q: What are the distinctions between. Preliminary Investigation vs. Preliminary Inquiry?

Preliminary Investigation Preliminary Inquiry

a) Preliminary investigation proper which ascertains a) Preliminary inquiry which determines probable
whether the offender should be held for trial or be cause for the issuance of a warrant of arrest
released.

b) The preliminary investigation proper - whether or not b) The determination of probable cause for purposes
there is reasonable ground to believe that the accused of issuing the warrant of arrest is made by the judge.
is guilty of the offense charged - is the function of the
investigating prosecutor. (People Of The Philippines,
Vs. Joseph “Jojo” V. Grey, G.R. No. 180109, July 26,
2010).

c) Conduct of Preliminary investigation is executive in c) Conduct of preliminary inquiry is judicial in

character. character.

Q: What is the reason on the rule on Non-Interference in the determination of probable cause?

A: The rationale behind the general rule rests on the principle of separation of powers , dictating that
the determination of probable cause for the purpose of indicting a suspect is properly an executive
function; while the exception hinges on the limiting principle of checks and balances, whereby the
judiciary, through a special civil action of certiorari, has been tasked by the present Constitution “to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.” (The Secretary of Justice vs.
Atty. Rodrigo A. Reyna, et.al, G.R. No. 182132, June 19, 2013).

Q: What is the Exception?

A: The rationale behind the general rule rests on the principle of separation of powers, dictating that
the determination of probable cause for the purpose of indicting a suspect is properly an executive
function; while the exception hinges on the limiting principle of checks and balances, whereby the
judiciary, through a special civil action of certiorari, has been tasked by the present Constitution “to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.” (The Secretary of Justice vs.
Atty. Rodrigo A. Reyna, et.al, G.R. No. 182132, June 19, 2013).

Q: What is the effect in case of failure to serve subpoena despite efforts?

A: Section 3(d), Rule 112 of the Rules of Court allows Prosecutor Vivero to resolve the complaint
based on the evidence before him if a respondent could not be subpoenaed. As long as efforts to reach a
respondent were made, and he was given an opportunity to present countervailing evidence, the
preliminary investigation remains valid. The rule was put in place in order to foil underhanded attempts of
a respondent to delay the prosecution of offenses. In this case, the Resolution stated that efforts were
78

undertaken to serve subpoenas on the named respondents at their last known addresses. This is
sufficient for due process. It was only because a majority of them could no longer be found at their last
known addresses that they were not served copies of the complaint and the attached documents or
evidence. (Saturnino C. Ocampo v. Hon. Ephrem S. Abando, et al, G.R. No. 176830, February 11, 2014)

Q: Is the right of the complainant who has not received copy of counter- affidavit cured upon the
filing of a Motion for Reconsideration?

A: The procedural defect of not having received a copy of the Counter-affidavit, however, was cured
when petitioner filed a Motion for Reconsideration. Provincial Prosecutor Dusaban had the duty to send
petitioner a copy of Aguillon’s Counter-affidavit. Section 3©, Rule 112 of the Revised Rules on Criminal
Procedure, grants a complainant this right, and the Provincial Prosecutor has the duty to observe the
fundamental and essential requirements of due process in the cases presented before it. That the
requirements of due process are deemed complied with in the present case because of the filing of an
MR by Complainant was simply a fortunate turn of events for the Office of the Provincial Prosecutor. 
(P/Insp. Ariel S. Artillero v. Orlando C. Casimiro, etc., et al, G.R. No. 190569, April 25, 2012)

Q: Can the complainant demand as a matter of right to file a reply?

A: NO. According to petitioner, he was denied his right to due process when he was not given a copy of
the: (i) Counter-affidavit, (ii) Asst. Prosecutor’s 10 September 2008 Resolution, and (iii) 17 February 2009
Resolution of the Office of the Ombudsman. He also claims he was deprived of due process because he
was not able to file his Reply to the Counter-affidavit. However, a complainant in a preliminary
investigation does not have a vested right to file a Reply—this right should be granted to him by
law. (P/Insp. Ariel S. Artillero v. Orlando C. Casimiro, etc., et al, G.R. No. 190569, April 25, 2012

Q: Can the respondent in a preliminary investigation demand full exercise of the rights of the
accused?

A: NO. Moreover, a person under preliminary investigation, as Sen. Estrada is in the present case when
he filed his Request, is not yet an accused person, and hence cannot demand the full exercise of the
rights of an accused person. (Senator Jinggoy Ejercito Estrada vs. Office of the Ombudsman, Field
Investigation Office, National Bureau of Investigation and Atty. Levito D. Baligod, G.R. Nos. 212140-41,
January 21, 2015)

Q: Can the respondent cross-examine the witness during preliminary investigation?

A: No. It is a fundamental principle that the accused in a preliminary investigation has no right to
cross examine the witnesses which the complainant may present. (Atty. Miguel P. Paderanga
vs. Hon. Franklin M. Drilon, et al., 196 SCRA 86)

Q: Will mandamus lie in case of grave abuse of discretion in the resolution of the public
prosecutor and refusal to file criminal information?

A: Yes. Mandamus is also a remedy when resolution of public respondent is tainted with grave
abuse of discretion as when despite the sufficiency of the evidence before the prosecutor, he
refuses to file the corresponding information against the person responsible. Metropolitan Bank
and Trust Company vs. Rogelio Reynado And Jose C. Adrandea, G.R. No. 164538, August 9,
2010)

Q: Will habeas corpus a proper remedy in case of denial of preliminary investigation?

A: No. A petition for habeas corpus is not a proper remedy if the accused was not accorded
preliminary investigation which he did not waived. (Ilagan vs. Enrile 139 SCRA; Paredes vs.
Sandiganbayan, 193 SCRA 464)

Q: Is absence of preliminary investigation a ground for a motion to quash an

information?

A: No. The absence of a preliminary investigation is not a ground to quash the complaint or
information (Section 3, Rule 117, Rules of Court), but may be the subject of certiorari. (Quintin
S. Doromal vs. Sandiganbayan, Ombudsman and Special Prosecutor, 177 SCRA 354)

Q: What is the remedy of the accused if the officer who signed the criminal complaint or
information has no authority to do so?
79

A: Thus, as a general rule, complaints or informations filed before the courts without the prior written
authority or approval of the foregoing authorized officers renders the same defective and, therefore,
subject to quashal pursuant to Section 3 (d), Rule 117 of the same Rules, to wit:

SECTION 3. Grounds. – The accused may move to quash the complaint or information on any of
the following grounds:
xxxx
a) That the officer who filed the information had no authority to do so;
Here, aside from the bare and self-serving Certification, there was no proof that ACP De La Cruz
was authorized to file the Pabatid Sakdal or Information before the RTC by himself. Records are bereft of
any showing that the City Prosecutor of Makati had authorized ACP De La Cruz to do so by giving him
prior written authority or by designating him as a division chief or review prosecutor of OCP-Makati.
(Roberto & Pen v. Spouses Julian Girlie M. Quisay Vs. People of the Philippines, G.R. No. 216920.
January 13, 2016)

Q: What is the remedy in case of adverse Resolution of the Secretary of Justice involving capital
offenses where the penalty imposable is reclusion perpetua of life imprisonment?

A: Circular Memorandum (MC) No. 58, issued by the OP on June 30, 1993, clearly identifies the
instances when appeal from or a petition for review of the decisions, orders, or resolutions of the
Secretary of Justice on preliminary investigations of criminal cases may be filed before the OP.

No appeal from or petition for review of decisions / orders / resolutions of the Secretary of Justice
on preliminary investigations of criminal cases shall be entertained by the Office of the President, except
those involving offenses punishable by reclusion perpetua to death wherein new and material issues are
raised which were not previously presented before the Department of Justice and were not ruled upon in
the subject decision / order / resolution, in which case the President may order the Secretary of Justice to
reopen / review the case, provided, that, the prescription of the offense is not due to lapse within six (6)
months from notice of the questioned resolution / order / decision, and provided further, that, the appeal
or petition for review is filed within thirty (30) days from such notice. (Atty. Allan S. Hilbero V. Florencio A.
Morales, Jr., G.R. No. 198760, January 11, 2017)

Q: What is the remedy in case of adverse resolution of the DOJ Secretary in preliminary
investigation involving tax and tariff offenses?

A: Court of Appeal’s original jurisdiction over a petition for certiorari assailing the DOJ resolution
in a preliminary investigation involving tax and tariff offenses was necessarily transferred to the
CTA pursuant to Section 7 of Republic Act (RA) 9282, amending RA 1125.

The Supreme Court (SC) now tells us in the recent case of Bureau of Customs v Hon.
Devanadera, G.R. No. 193253, September 8, 2015, the said petition for certiorari is now
within the jurisdiction of the CTA and no longer the Court of Appeals (CA).

Q: Who shall resolve the Motion to Withdraw Information?

A: When confronted with a motion to withdraw an Information on the ground of lack of probable cause
based on a resolution of the Secretary of Justice, the bounden duty of the trial court is to make an
independent assessment of the merits of such motion. Having acquired jurisdiction over the case, the trial
court is not bound by such resolution but is required to evaluate it before proceeding farther with the trial.
Indeed, once a criminal complaint or information is filed in court, any disposition of the case or dismissal
or acquittal or conviction of the accused rests within the exclusive jurisdiction, competence, and discretion
of the trial court. The rule applies to a motion to withdraw the Information or to dismiss the case even
before or after arraignment of the accused. When the trial court grants a motion of the public prosecutor
to dismiss the case, or to quash the Information, or to withdraw the Information in compliance with the
directive of the Secretary of Justice, or to deny the said motion, it does so not out of subservience to or
defiance of the directive of the Secretary of Justice but in the sound exercise of its judicial prerogative.
(Barry Lanier and Perlita Lanier v. People of the Philippines, G.R. No. 189176, March 19, 2014.)

Q: What is the remedy in case of an order granting a motion to withdraw information?

A: An order granting a motion to withdraw an information and dismissing a criminal case is final, and the
remedy to question this final order is an appeal. In Santos v. Orda:

On the first issue, the petition for certiorari filed by respondent under Rule 65 of the Rules of
Court is inappropriate. It bears stressing that the Order of the RTC, granting the motion of the
80

prosecution to withdraw the Informations and ordering the case dismissed, is final because it
disposed of the case and terminated the proceedings therein, leaving nothing to be done by the
court. Thus, the proper remedy is appeal. (Personal Collection Direct Selling, Inc., V. Teresita L.
Carandang, G.R. No. 206958, November 8, 2017)

Q: What is the duty of the court in the determination of probable cause?

A: A public prosecutor's determination of probable cause for the purpose of filing an information in court is
essentially an executive function. However, the determination of probable cause must not be tainted with
grave abuse of discretion as when the public prosecutor arbitrarily disregards the jurisprudential
parameters of probable cause. Once an information is filed in court, all actions including the
exercise of the discretion of the prosecution are subject to the disposal of the court. This includes
reinvestigation of the case, the dropping of the accused from the information, or even dismissal of
the action as to the accused. The trial court must make its own independent assessment of the
case and not merely blindly accept the conclusions of the executive department. (Rural Bank of
Mabitac, Laguna vs Melanie Canicon and Merlita Espeleta, G.R. No. 196015, June 27, 2018)

C. Issuance of Warrant of Arrest

Q: What is warrant of arrest?

A: Warrant of Arrest is a legal process issued by competent authority directing the arrest of a person or
persons upon grounds stated therein. It is usually directed to regular officers of the law, but occasionally,
it is issued to a private person named in it. (4 Am. Jur. 9)

Q: What are the options of the judge upon receipt of the complaint or information?

A: Upon filing of the information, the trial court judge has the following options: (1) dismiss the case if the
evidence on record clearly fails to establish probable cause; (2) issue a warrant of arrest or a commitment
order if findings show probable cause; or (3) order the prosecutor to present additional evidence if there is
doubt on the existence of probable cause. (Liza L. Maza vs. Hon. Evelyn A. Turla, G.R. No. 187094;
February 15, 2017, J. Leonen)

Q: Is examination of the complainant and witnesses for the issuance of warrant of arrest
required?

A: NO. The Supreme Court has ruled that a hearing is not necessary for the determination thereof.
In fact, the judge’s personal examination of the complainant and the witnesses is not mandatory
and indispensable for determining the aptness of issuing a warrant of arrest. It is enough that the
judge personally evaluates the prosecutor’s report and supporting documents showing the
existence of probable cause for the indictment and, on the basis thereof, issue a warrant of arrest;
or if, on the basis of his evaluation, he finds no probable cause, to disregard the prosecutor’s resolution
and require the submission of additional affidavits of witnesses to aid him in determining its existence.
(Saturnino C. Ocampo v. Hon. Ephrem S. Abando, et al, G.R. No. 176830, February 11, 2014.)

Q: Can a lawful arrest pursuant to a court process be inquired into through habeas corpus?

A: NO. Person arrested by virtue of a valid warrant of arrest based on a probable cause cannot be
inquired into through a petition for habeas corpus. (Anita Mangila vs. Judge Heriberto Pangilinan, G.R.
No. 160739, July 17, 2013, BERSAMIN, J.)

Q: What is the duty of the judge before issuing a warrant of arrest?

A: Before issuing a warrant of arrest, the judge must satisfy himself or herself that based on the evidence
presented, a crime has been committed and the person to be arrested is probably guilty of it. It is required
for the judge to "personally evaluate the resolution of the prosecutor and its supporting evidence." In case
the evidence on record fails to substantiate probable cause, the trial judge may instantly dismiss the case.
(Mayor “Jong”Amado Corpus vs Judge Ramon Pamular, G.R. No. 186403, September 5, 2018)

Q: Can the court issue a warrant of arrest even during the pendency of a Petition for Review
before the Department of Justice (DOJ)?
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A: YES. Courts do not meddle with the prosecutor's conduct of a preliminary investigation because it is
exclusively within the prosecutor's discretion. However, once the information is already filed in court, the
court has acquired jurisdiction of the case. Any motion to dismiss or determination of the guilt or
innocence of the accused is within its discretion. The preliminary investigation conducted by the fiscal for
the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is
terminated upon the filing of the information in the proper court. Hence, when a Regional Trial Court has
already determined that probable cause exists for the issuance of a warrant of arrest, like in this case,
jurisdiction is already with the Regional Trial Court. Therefore, it can proceed in conducting further
proceedings on the amended information and on the issuance of a warrant despite the pendency of a
Petition for Review before the Department of Justice. (Mayor “Jong”Amado Corpus vs Judge Ramon
Pamular, G.R. No. 186403, September 5, 2018)

X. ARREST/CUSTODIAL INVESTIGATION

A. Warrantless Arrest

Q: Can the Provincial Governor order the arrest of a person without warrant during state
of emergency or martial law?

A: NO. A proclamation of a state of emergency by a provincial governor cannot serve as legal

basis for general searches and seizures, including warrantless arrests. Even a declaration of
martial law by the President does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the conferment of the
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ." (Kulayan v. Tan, G.R. No. 187298, July 03,
2012)

Q: What are the requisites for a valid warrantless arrest?

A: Overt act requirement in in flagrante delicto arrest: For a warrantless arrest of an accused caught in
flagrante delicto to be valid, two requisites must concur: (1) the person to be arrested must execute an
overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime;
and (2) such overt act is done in the presence or within the view of the arresting officer." Trying to run
away when no crime has been overtly committed, and without more, cannot be evidence of guilt. Flight
per se is not synonymous with guilt. (People v. Edano, G.R. No. 188133, July 7, 2014)

Q: What are the instances of warrantless arrest under the Rules?

A: “Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without
a warrant, arrest a person:

a. When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense; (Plainview Doctrine)

b. When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it; (Doctrine
of Hot Pursuit) and

c. When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or is temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another. (Escapee doctrine)

Q: What are the requisites for a valid warrantless arrest on the ground of in flagrante delicto?

A: As per the established facts during the trial, the instant case falls within paragraph (a). For a
warrantless arrest of an accused caught in flagrante delicto to be valid, two requisites must concur: (1)
the person to be arrested must execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer. (People of the Philippines vs. Joseph Solamillo
Amago and Cerilo Bolongaita Vendiola, Jr., G.R. No. 227739, January 15, 2020)

Q: What is the overt act test in case of warrantless arrest? What is the effect of its absence?
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A: The validity of warrantless arrest requires compliance with the overt act test, showing that the
accused exhibit an overt act within the view of the police officers suggesting that she was in
possession of illegal drugs at the time she was apprehended. Absent any overt act showing the
commission of a crime, the warrantless arrest is rendered invalid.

In this case, Reyes argues that no valid warrantless arrest took place as she did not do anything
as to rouse suspicion in the minds of the arresting officers that she had just committed, was committing,
or was about to commit a crime when she was just passing by. The Court finds that no lawful arrest was
made on Reyes. (Leniza Reyes vs People of the Philippines, G.R. No. 229380, June 6, 2018)

*** Q: What are the instances of warrantless arrest in Environmental Cases?

A: (a) When, in his presence the person to be arrested has committed, is actually committing or is
attempting to commit an offense; or

(b) When an offense has just been committed, and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it.

Q: Can a deputized individual effect warrantless arrest in case of violation of environmental laws?

A: Yes, individuals deputized by the proper government agency who are enforcing environmental laws
shall enjoy the presumption of regularity under Section 3 (m), Rule 131 of the Rules of Court when
effecting arrests for violations of environmental laws.

Q: What is the Doctrine of “Hot Pursuit”?

A: The doctrine of “hot pursuit” is clearly spelled out under Sec. 5(b), Rule 113 of the Revised
Rules on Criminal Procedure which is basically based on the provisions of the Rules that an arrest can be
made without a warrant when an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has committed it.
(People vs. Doria, 668 SCRA [1999])

Q: Is presence of a police at the scene of the crime required at the time of the
commission of the crime?

A: In a hot pursuit arrest, police presence at the scene while the crime was being committed is
not required. 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, November 10, 2014)

Q: When can the accused be arrested/ re-arrested without warrant?

A: 1) The bondsman may arrest him, or upon written authority endorsed on a certified copy of the
undertaking, cause him to be arrested by a police or any other person of suitable age and discretion

2) 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: Is reliable information a ground for a warrantless arrest?

A: NO. Reliable information alone is not enough to justify a warrantless arrest. The accused must
perform some overt act that would indicate that he has committed, is actually committing, or is attempting
to commit an offense. (People v. Racho, G.R. No. 186529, August 3, 2010)

Q: Is the mere act of leaving the residence of a drug peddler a ground for warrantless arrest?

A: NO. The mere act of leaving a residence of a known drug peddler is not sufficient for a valid arrest,
unless there is an overt manifestation that the person had just engaged in, was actually engaging in or
was attempting to engage in the criminal activity of illegal possession of shabu. (Sanchez v. People, G.R.
No. 204589, November 19, 2014)

Q: Is presence of a police at the scene of the crime at the time of the commission of the crime
required?
83

A: NO. In a hot pursuit arrest, police presence at the scene while the crime was being committed is not
required. 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, November 10,
2014)

Q: Is the arrest of a person who presented himself to clear his name valid?

A: NO. The arrest of a person who has presented himself before the police station to clear his name and
prove that he is not the accused -- is not valid, as he was neither committing nor attempting to commit an
offense, and the police officers had no personal knowledge of any offense that he might have committed.
(In the Matter of Petition for Habeas Corpus of Datukan Malang Salibo, v. Warden, Quezon City Jail, G.R.
No. 197597, April 8, 2015)

Q: Can an arrest be made in Summary Procedure? Exceptions?

A: Whenever a criminal case falls under the Summary Procedure, the general rule is that the court
shall not order the arrest of the accused unless he fails to appear whenever required. (Office of the
Court Administrator vs. Hon, Rosabella M. Tormis, AM No. MTJ-12-1817, March 12, 2013)

Q: What is the effect of failure to object on the irregularity of arrest and enter of plea?

A: Further, appellants are estopped from questioning the validity of their warrantless arrest. Appellants
never objected to the irregularity of their arrest before their arraignment. They pleaded not guilty
to the offense on arraignment and actively participated in the proceedings which followed. In fact,
during the pre-trial, they stipulated that the court had jurisdiction over them. Thus, they are considered
to have voluntarily submitted themselves to the jurisdiction of the trial court and waived their right
to question the validity of their arrest. (People of the Philippines vs. Corazon Nazareno y Fernandez
@ “Cora” and Jefferson Nazareno y Fernandez @ “Toto”, G.R. No. 231875, July 29, 2019)

Q: When to raise the objection on irregularity of arrest? Effect?

A: As to the legality of his warrantless arrest, appellant is already estopped from questioning such
because it was never raised prior to his having entered a plea of not guilty. Moreover, the rule is that an
accused is estopped from assailing the legality of his arrest if he failed to move to quash the
information against him before his arraignment. Any objection involving the arrest or the
procedure in the acquisition by the court of jurisdiction over the person of an accused must be
made before he enters his plea, otherwise, the objection is deemed waived. (People of the
Philippines vs Joselito Bringcula, G.R. No. 226400, January 24, 2018)

Q: What is the effect of posting of bail on the issue of illegal arrest, lack of or irregular preliminary
investigation?

A: An application for admission to bail shall not bar the accused from challenging the validity of arrest or
the legality of the warrant of arrest issued therefor, or assailing the regularity or questioning the absence
of preliminary investigation of the charge against him, provide he raised them before entering his plea.
The court shall resolve the matter as early as practicable but not later than the start of the trial of the
case.” (Sec. 26 Rule 114)

Q: Is roadside questioning of a motorist a formal arrest?

A: In Berkemer v. McCarty, the United States (U.S.) Supreme Court discussed at length whether the
roadside questioning of a motorist detained pursuant to a routine traffic stop should be
considered custodial interrogation. The Court held that, such questioning does not fall under
custodial interrogation, nor can it be considered a formal arrest, by virtue of the nature of the
questioning, the expectations of the motorist and the officer, and the length of time the procedure is
conducted. (Luz vs. People of the Philippines, G.R. No. 197788, February 29, 2012)

Q: Is petition for the Issuance of a Writ of Habeas Corpus a remedy for a detention prisoner
following a valid warrantless of arrest?

A: NO. The question was answered in the negative in the case of Mangila vs. Judge Pangilinan (G.R.
No. 160739. July 17, 2013) where the Court ruled that the writ will not issue where the person in whose
behalf the writ is sought is out on bail, or is in the custody of an officer under process issued by a court or
judge with jurisdiction or by virtue of a judgment or order of a court of record. Xxx

To quote the dictum enunciated by Justice Malcolm in Quintos v. Director of Prisons: The writ of
habeas corpus secures to a prisoner the right to have the cause of his detention examined and
84

determined by a court of justice, and to have ascertained if he is held under lawful authority. The function
of habeas corpus, where the party who has appealed to its aid is in custody under process, does not
extend beyond an inquiry into the jurisdiction of the court by which it was issued and the validity of the
process upon its face. It is not a writ of error.

Q: What are the consequences of an invalid arrest?

A: The invalidity of an arrest leads to several consequences among which are: (a) the failure to acquire
jurisdiction over the person of an accused; (b) criminal liability of law enforcers for illegal arrest;
and (c) any search incident to the arrest becomes invalid thus rendering the evidence acquired as
constitutionally inadmissible. (Mario Veridiano Y Sapi V. People Of The Philippines, G.R. No. 200370,
June 7, 2017)

Q: What is the effect of failure of the accused to object on the illegality of his arrest?

A: In the present case, at the time of petitioner’s arraignment, there was no objection raised as to the
irregularity of his arrest. Thereafter, he actively participated in the proceedings before the trial court. In
effect, he is deemed to have waived any perceived defect in his arrest and effectively submitted
himself to the jurisdiction of the court trying his case. At any rate, the illegal arrest of an accused is
not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a
trial free from error. It will not even negate the validity of the conviction of the accused. (People Of The
Philippines V. Vicente Lugnasin And Devincio Guerrero, G.R. No. 208404, February 24, 2016)

Q: What is the nature of buy bust operation?

A: A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid
and effective mode of apprehending drug pushers. In a buy-bust operation, the idea to commit a
crime originates from the offender, without anyone inducing or prodding him to commit the
offense. If carried out with due regard for constitutional and legal safeguards, a buy-bust operation
deserves judicial sanction. So, must it be. (People of the Philippines vs. Lean Noel Dizon @ “Jingle”, G.R.
No. 223562, September 4, 2019)

Q: What are the differences between entrapment and instigation?

Instigation Entrapment

a). In instigation, the instigator induces the would-be- a) In entrapment, the means originates from the mind
defendant into committing the offense, and himself of the criminal.
becomes a co-principal

b) While in instigation, the law enforcer conceives the b) The idea to commit the crime emanated from the
commission of the crime and suggests the same to the accused himself.
accused who adopts the idea and carries it into
execution. (People Of The Philippines Vs. Manuelita
Ampatuan Y Gonzales, Et Al., G.R. No. 188707, July
30 2014)

B. Custodial Investigation

Q: Is Silence of the accused during custodial investigation tantamount to admission by silence?

A: NO. Appellant claims that his silence should not be used against him as he was just exercising his
constitutional right to remain silent. We agree with the appellant. It should be borne in mind that when
appellant was brought to the police station, he was already a suspect to the crime of rape. As such, he
was already under custodial investigation. Section 12, Article III of the Constitution explicitly provides, viz:
“Any person under investigation for the commission of an offense shall have the right to be informed of his
right to remain silent and to have competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.” Clearly, when appellant remained silent
when confronted by the accusation of “AAA” at the police station, he was exercising his basic
and fundamental right to remain silent. At that stage, his silence should not be taken against him .
Thus, it was error on the part of the trial court to state that appellant's silence should be deemed implied
admission of guilt. (People of the Philippines vs. Jonas Guillen, G.R. No. 191756, November 25,
2013)

Q: Will the absence of counsel during custodial investigation cured when later on the
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person signed a document in the presence of a PAO lawyer?

A: NO. Late appointment of a counsel does not remedy the absence of counsel during the
custodial investigation without the benefit of counsel although reduced into writing and later
signed in the presence of counsel is still flawed under the Constitution. (People vs. Ordoño,
334 SCRA 673) A PAO lawyer is an independent counsel. (People vs. Bacor, 306 SCRA 522)

XI. BAIL (RULE 114)

Q: When is bail a matter of right under the constitution?

A: The constitutional mandate is that all persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. However, bail may be a matter of
right or judicial discretion. The accused has the right to bail if the offense charged is "not punishable by
death, reclusion perpetua or life imprisonment" before conviction. However, if the accused is charged with
an offense and the penalty of which is death, reclusion perpetua, or life imprisonment — "regardless of
the stage of the criminal prosecution" — and when evidence of one's guilt is not strong, then the
accused's prayer for bail is subject to the discretion of the trial court.

Clearly, bail is a constitutional demandable right which only ceases to be so recognized

when the evidence of guilt of the person charged with a crime that carries the penalty of  reclusion
perpetua, life imprisonment, or death is found to be strong. Stated differently, bail is a matter of
right when the offense charged is not punishable by reclusion perpetua or life imprisonment, or
death. (Allen C. Padua and Emelita F. Pimentel vs. People of the Philippines, Family Choice Grains
Processing Center, Inc., and Golden Season Grains Center, Inc., G.R. No. 220913, February 4, 2019)

Q: What are the conditions of bail?

A: All kinds of bail are subject to the following conditions:

a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in force
at all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of
whether the case was originally filed in or appealed to it;
b) The accused shall appear before the proper court whenever required by the court or
these Rules;
c) The failure of the accused to appear at the trial without justification and despite due notice shall
be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia;
and
d) The bondsman shall surrender the accused to the court for execution of the final
judgment. (Sec. 2, Rule 114)

Q: When is bail a matter of right?

A: All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released
on recognizance as prescribed by law or this Rule:

(a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal
Trial Court in Cities, or Municipal Circuit Trial Court, and
(b) before conviction by the Regional Trial court of an offense not punishable by death, reclusion
perpetua, or life imprisonment. (Sec. 4, Rule 114)

Q: What is the requirement in order that the accused may post bail in a bailable offense?

A: It must be further clarified that after the amount of bail has been fixed, petitioners, when
posting the required bail, must be in the custody of the law. They must make their personal
appearance in the posting of bail. It must be emphasized that bail, whether a matter of right or of
discretion, cannot be posted before custody of the accused has been acquired by the judicial
authorities either by his arrest or voluntary surrender, or personal appearance.  (Allen C. Padua
and Emelita F. Pimentel vs. People of the Philippines, Family Choice Grains Processing Center, Inc., and
Golden Season Grains Center, Inc., G.R. No. 220913, February 4, 2019)

Q: When bail a matter of discretion?

86

A: Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion
perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be
filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not
transmitted the original record to the appellate court. However, if the decision of the trial court conviction
the accused changed the nature of the offense from non-bailable to bailable, the application for bail can
only be filed with and resolved by the appellate court. (Sec. 5, Rule 114)

Q: When is bail available in case of a capital offense?

A: The decision whether to detain or release an accused before and during trial is ultimately an incident
of the judicial power to hear and determine his criminal case. The strength of the Prosecution’s case,
albeit a good measure of the accused’s propensity for flight or for causing harm to the public, is subsidiary
to the primary objective of bail, which is to ensure that the accused appears at trial.

The general rule is, therefore, that any person, before being convicted of any criminal offense,
shall be bailable, unless he is charged with capital offense, or with an offense punishable with reclusion
perpetua or life imprisonment, and the evidence of his guilt is strong. Hence, from the moment he is
placed under arrest, or is detained or restrained by the officers of the law, he can claim the guarantee of
his provisional liberty under the Bill of Rights, and he retains his right to bail unless he is charged with a
capital offense, or with an offense punishable with reclusion perpetua or life imprisonment, and the
evidence of his guilt is strong. Once it has been established that the evidence of guilt is strong, no right to
bail shall be recognized.

It is axiomatic, therefore, that bail cannot be allowed when its grant is a matter of discretion on the
part of the trial court unless there has been a hearing with notice to the prosecution.

Certain guidelines in the fixing of a bail call for the presentation of evidence and reasonable
opportunity for the prosecution to refute it. Among them are the nature and circumstances of the
crime, character and reputation of the accused, the weight of the evidence against him, the
probability of the accused appearing at the trial, whether or not the accused is a fugitive from
justice, and whether or not the accused is under bond in other cases. (Section 6, Rule 114, Rules of
Court)

This national commitment to uphold the fundamental human rights as well as value the worth and
dignity of every person has authorized the grant of ball not only to those charged in criminal proceedings
but also to extradites upon a clear and convincing showing: (1) that the detainee will not be a flight risk
or a danger to the community; and (2) that there exist special, humanitarian and compelling
circumstances.(Juan Ponce Enrile, V. Sandiganbayan (Third Division), And People Of The Philippines,
G.R. No. 213847, August 18, 2015)

Q: What is the nature of the power of the court to grant or deny application for bail?

A: In this case, Tanes was charged with violation of Section 5, Article II of R.A. 9165 which carries the
penalty of life imprisonment. Hence, Tanes' bail becomes a matter of judicial discretion if the evidence of
his guilt is not strong.

To determine whether evidence of guilt of the accused is strong, the conduct of bail hearings is
required where the prosecution has the burden of proof, subject to the right of the defense to cross-
examine witnesses and introduce evidence in rebuttal. The court is to conduct only a summary
hearing, consistent with the purpose of merely determining the weight of evidence for purposes of
bail.
The court's grant or denial of the bail application must contain a summary of the
prosecution's evidence. On this basis, the judge formulates his or her own conclusion on whether
such evidence is strong enough to indicate the guilt of the accused. (People of the Philippines vs.
Novo Tanes y Belmonte,G.R. No. 240596, April 3, 2019)

Q: Is hearing required in a petition for bail?

A: YES. A hearing, whether summary or otherwise in the discretion of the court, must actually be
conducted to determine whether or not the evidence of guilt against the accused is strong. At the said
hearing, the prosecution has the burden of showing that the evidence of guilt is strong. (People of the
Philippines vs. Hon. Conrado R. Antona, et al., 375 SCRA 464 [2002])

Q: What are the duties of the judge in case of application for bail?
87

A: Rule 114 of the Rules of Court emphasizes that offenses punishable by death, reclusion perpetua or
life imprisonment are non-bailable when the evidence of guilt is strong. The court is to conduct only a
summary hearing, or such brief and speedy method of receiving and considering the evidence of
guilt as is practicable and consistent with the purpose of the hearing which is merely to determine
the weight of evidence for purposes of bail. (Ramon Revilla vs Sandiganbayan, G.R. No. 218232, July
24, 2018)

Q: Is the standard of proof in an application for bail the same with demurrer to evidence?

A: NO. In a demurrer to evidence, as in the case of Macapagal-Arroyo, the accused imposes a challenge
on the sufficiency of the prosecution's entire evidence. The stage at which the accused may demur to the
sufficiency of the prosecution's evidence is during the trial on the merits itself-particularly, after the
prosecution has rested its case. This should be distinguished from the hearing for the petition for bail, in
which the trial court does not sit to try the merits of the main case. Neither does it speculate on the
ultimate outcome of the criminal charge. (Janet Lim Napoles vs Sandiganbayan, G.R. No. 224162,
February 6, 2018)

Q: Can the application for bail filed by the accused be denied when he is a flight risk other than
his guilt is strong?

A: YES. While· bail may generally be granted as a matter of right prior to the conviction of the
accused, those charged with a capital offense is granted bail only when the evidence of guilt is not strong:

Section 7. Capital offense of an offense punishable by reclusion perpetua or life imprisonment,

not bailable. - No person charged with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong,
regardless of the stage of the criminal prosecution.

The trial court is thus granted the discretion to determine whether there is strong evidence of guilt
on the part of the accused. The trial court may also deny the application for bail when the accused
is a flight risk, notwithstanding the prosecution's evidence on the guilt of the accused. (Janet Lim
Napoles V. Sandiganbayan (Third Division), G.R. No. 224162, November 7, 2017)

Q: Is res judicata applicable in criminal proceedings/petition for bail?

A: NO. Escobar' s Second Bail Petition is not barred by res judicata as this doctrine is not recognized
in criminal proceedings.

Expressly applicable in civil cases, res judicata  settles with finality the dispute between the
parties or their successors-in-interest. Trinidad v. Marcelo declares that res judicata, as found in Rule 39
of the Rules of Civil Procedure, is a principle in civil law and "has no bearing on criminal proceedings."
Rule 124, Section 18 of the Rules of Criminal Procedure states:

Section 18. Application of certain rules in civil procedure to criminal cases. - The provisions of
Rules 42, 44 to 46 and 48 to 56 relating to procedure in the Court of Appeals and in the Supreme
Court in original and appealed civil cases shall be applied to criminal cases insofar as they are
applicable and not inconsistent with the provisions of this Rule.

Indeed, while certain provisions of the Rules of Civil Procedure may be applied in criminal
cases, Rule 39 of the Rules of Civil Procedure is excluded from the enumeration under Rule 124 of the
Rules of Criminal Procedure.

An interlocutory order denying an application for bail, in this case being criminal in nature, does
not give rise to res judicata.  As in Trinidad,  even if we are to expand the argument of the prosecution in
this case to contemplate "res judicata  in prison grey" or double jeopardy, the same will still not
apply. Double jeopardy requires that the accused has been convicted or acquitted or that the case
against him or her has been dismissed or terminated without his express consent. Here, while there was
an initial ruling on Escobar's First Bail Petition, Escobar has not been convicted, acquitted, or has had his
case dismissed or terminated. (People Of The Philippines V. Escobar, G.R. No. 214300, July 26, 2017)

Q: What is the effect of conviction on the right to bail?

A: After conviction by the trial court, the presumption of innocence terminates, and accordingly, the
constitutional right to bail ends (See Obosa v. Court of Appeals and Yap v. Court of Appeals, 411 Phil.
190, 202 (2001). Therefore, denial of bail pending appeal is “a matter of wise discretion.” x x x (Leviste
Vs. The Court Of Appeals And People Of The Philippines, G.R. No. 189122, March 17, 2010)
88

Q: When is bail not necessary?

A: No bail shall be required in the following instances, to wit:

a) When the law or these Rules so provide;

b) When a person has been in custody for a period equal to or more than the possible maximum
imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to
the continuation of the trial or the proceedings on appeal;

c) If the maximum penalty to which the accused may be sentenced is destierro, he shall be
released after thirty (30) days of preventive imprisonment;

d) A person in custody for a period equal to or more than the minimum of the principal penalty
prescribed for the offense charged, without application of the Indeterminate Sentence Law or any
modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion
of the court.

e) No person charged with a capital offense, or an offense punishable by reclusion perpetua or

life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the
criminal prosecution.
f) Offenses punishable by fine;
g) Offenses under the Rules on Summary Procedure;
h) After a judgment of conviction has become final.
i) In no case shall bail be allowed after the accused has commenced to serve sentence.

Q: When is bail not allowed?

A: No bail shall be allowed in the following instances:

1) After a judgment of conviction has become final.

2) In no case shall bail be allowed after the accused has commenced to serve sentence.

Q: What is the effect of posting of bail on the jurisdiction of the court over the person of the
accused?

A: It is well-settled that jurisdiction over the person of the accused is acquired upon (1) his arrest or
apprehension, with or without a warrant, or (2) his voluntary appearance or submission to the jurisdiction
of the court. For this reason, in Cojuangco, Jr. v. Sandiganbayan 28 we held that even if it is conceded that
the warrant issued was void (for nonexistence of probable cause), the accused waived all his rights to
object by appearing and giving a bond, viz:

On this score, the rule is well-settled that the giving or posting of bail by the accused is
tantamount to submission of his person to the jurisdiction of the court.

By posting bail, herein petitioner cannot claim exemption from the effect of being subject to the
jurisdiction of respondent court. While petitioner has exerted efforts to continue disputing the validity of
the issuance of the warrant of arrest despite his posting bail, his claim has been negated when he himself
invoked the jurisdiction of respondent court through the filing of various motions that sought other
affirmative reliefs. (Amando A. Inocentes V. People Of The Philippines, Hon. Roland B. Jurado, In His
Capacity As Chairperson, Sandiganbayan, Fifth Division, Hon. Conchita Carpio Morales, In Her Capacity
As Ombudsman, As Complainant; And Hon. Francis H. Jardeleza, Office Of The Solicitor General (OSG),
In Its Capacity As Counsel For The People, G.R. No. 205693-64, July 7, 2016)

RIGHTS OF THE ACCUSED (RULE 115)

Q: What are the rights of the accused in a criminal proceeding?

A: In all criminal prosecutions, the accused shall be entitled to the following rights:

(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.

Q: What is “Equipoise or Equiponderance of Evidence Rule”?

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A: When the circumstances are capable of two or more inferences, one of which is consistent with
innocence and the other is compatible with guilt, the presumption of innocence must prevail, and the
court must acquit.. (People of the Philippines vs. De Guzman y Danzil, G.R. No. 186498, March 26,
2010, Nachura, J.)

(b) To be informed of the nature and cause of the accusation against him.

(c) To be present and defend in person and by counsel at every stage of the
proceedings, from arraignment to promulgation of the judgment. The accused may, however,
waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his
presence is specifically ordered by the court for purposes of identification. The absence of the
accused without justifiable cause at the trial of which he had notice shall be considered a waiver
of his right to be present thereat. When an accused under custody escapes, he shall be deemed
to have waived his right to be present on all subsequent trial dates until custody over him is
regained. Upon motion, the accused may be allowed to defend himself in person when it
sufficiently appears to the court that he can properly protect his rights without the assistance of
counsel.

(d) To testify as a witness in his own behalf but subject to cross-examination on matters
covered by direct examination. His silence shall not in any manner prejudice him.

(e) To be exempt from being compelled to be a witness against himself.

Q: Is mandatory drug testing of a person arrested violative of his right against self-
incrimination?

A: Yes. Mandatory drug testing of a person arrested for alleged extortion violates a person’s
right to privacy guaranteed under constitutional right against unreasonable searches and
seizures, and the right against self-incrimination. The constitutional right against self-
incrimination proscribes the use of physical or moral compulsion to extort communications from
the accused and not the inclusion of his body in evidence when it may be material. However, a
drug test result is immaterial evidence in prosecuting non-drug offenses. Moreover, to impose
mandatory drug testing on the accused for all persons arrested regardless of the crime or
offense for which the arrest was made is a blatant attempt to harness a medical test as a tool for
criminal prosecution. We cannot condone drug testing of all arrested persons regardless of the
crime or offense for which the arrest is being made. (Dela Cruz v. People, G.R. No. 200748,
July 23, 2014)

(f) To confront and cross-examine the witnesses against him at the trial. Either party may
utilize as part of its evidence the testimony of a witness who is deceased, out of or cannot with
due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in
another case or proceeding, judicial or administrative, involving the same parties and subject
matter, the adverse party having the opportunity to cross-examine him.

(g) To have compulsory process issued to secure the attendance of witnesses and
production of other evidence in his behalf.

(h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed, and in the manner prescribed by law.” (Sec. 1, Rule 115)

XII. ARRAIGNMENT (RULE 116)

Q: What is arraignment?

A: Arraignment is the formal mode and manner of implementing the constitutional right of an accused to
be informed of the nature and cause of the accusation against him. The purpose of arraignment is, thus,
to apprise the accused of the possible loss of freedom, even of his life, depending on the nature of the
crime imputed to him, or at the very least to inform him of why the prosecuting arm of the State is
mobilized against him. (Taglay vs. Judge Trabajo Daray, G.R. No/ 164258, August 22, 2012)
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Q: What are the remedies before arraignment? (Bar Exam)

A: a) Motion to Conduct Preliminary Investigation (Sec. 7. Rule 112);

b) Motion to Withdraw Complaint or Information (Sec, 7, DOJ No. 70)
c) Arrest with Warrant/ Motion for Judicial Determination of Probable Cause/ Motion to Quash
Warrant of Arrest (Rule 113);
d) Bail/Petition for Bail/Motion for Reduction of Bail/Recognizance (Rule 114);
e) Motion for Bill of Particulars (Sec. 9, Rule 116);
f) Motion to Suspend Arraignment (Sec. 11, Rule 116) ;
g) Motion for Bill of Particulars (Sec. 9, Rule 116);
h) Motion To Dismiss in Case of a Strategic Lawsuit Against Public Participation (Sec. 1, Rule 19
Part IV of the Rules of Procedure for Environmental Cases)

Q: What are the remedies before plea?

A: a) Amendment of Complaint or Information (Sec. 14, Rule 110);

b) Motion to Quash Complaint or Information (Sec. 3, Rule 117);
c) Bail

Q: What is the effect of conditional arraignment on the dismissal of the action?

A: As correctly pointed out in the challenged Resolution, the dismissal of the estafa and the corruption
cases was made upon petitioners ex parte Motion for the withdrawal of the Informations. Petitioner does
not dispute the fact that private respondent was not notified of this Motion. Neither was a hearing held
thereon.

On the other hand, private respondent has amply shown that he learned of the Motion only after
cases had been dismissed. It is clear that the dismissal, having been secured by petitioner without the
express consent of the accused, does not tantamount to a waiver of the right against double jeopardy. But
it does unequivocally show the fourth requisite for the proper invocation of such right.

In a nutshell, the alleged conditions attached to an arraignment must be unmistakable, express,

informed and enlightened. They must be expressly stated in the Order disposing of the arraignment.
Otherwise, the plea should be deemed to be simple and unconditional. (People of The Philippines Vs
Mario K. Espinosa GR Nos. 153714-20 August 15, 2003)

Q: How will the arraignment of the accused be made?

A: The accused must be arraigned in the following manner:

1) He shall be arraigned before the court where the complaint or information was filed or assigned
for trial;
2) It shall be made in open court by the judge or clerk by furnishing the accused with a copy of
the complaint or information, reading the same in the language or dialect known to him; and
3) Asking him whether he pleads guilty or not guilty;
4) The prosecution may call at the trial witnesses other than those named in the complaint or
information. (Sec. 1, Rule 116)

Q: What is the rule on appearances during arraignment?

A: The accused must be present at the arraignment and must personally enter his plea. Both arraignment
and plea shall be made of record, but failure to do so shall not affect the validity of the proceedings. (Sec.
1, Rule 116)

Q: What is the effect if the accused refuses to enter a plea?

A: When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered
for him.

Q: What is the rule if the accused presents an exculpatory evidence?

A: When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed
withdrawn and a plea of not guilty shall be entered for him.

Q: What is the purpose of the appearance of the private offended party?

A: The private offended party shall be required to appear at the arraignment for purposes of:
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1) Plea bargaining;
2) Determination of civil liability; and
3) Other matters requiring his presence.

Q: What is the effect of failure of private offended party to appear?

A: In case of failure of the offended party to appear despite due notice, the court may allow the accused
to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the
conformity of the trial prosecutor alone.

Is plea bargaining allowed in case of violation of Comprehensive Dangerous Drug Act of

2002 (R.A. 9165)?

A: Yes. The Honorable Supreme Court deem it proper to declare as invalid the prohibition
against plea bargaining on drugs cases until and unless it is made part of the rules of procedure
through an administrative circular duty issued for the purpose, and violates the constitutional
right of the accused to equal protection before the laws. (Salvador Estipona, JR. Y Asuela, vs.
Hon Frank E. Lobrigo, Presiding Justice of the Regional Trial Court, Branch 3, Legazpi City, Al-
bay and the People of the Philippines, G.R. No. 226679, August 15, 2017)

Q: What are the duties of the court if the accused pleads guilty to a capital offense?

A: When the accused pleads guilty to a capital offense, the court shall:

1) Conduct a searching inquiry into the voluntariness and full comprehension of the
consequences of his plea; and
2) Shall require the prosecution to prove his guilt and the precise degree of culpability;
3) The accused may present evidence in his behalf.” (Sec. 3, Rule 116)

Q: What is the rule if the accused pleads guilty to a non-capital offense?

A: When the accused pleads guilty to a non-capital offense, the court may receive evidence
from the parties to determine the penalty to be imposed. Sec. 4, Rule 116)

Q: What are the grounds for the suspension of arraignment?

A: 1) Accused is suffering from mental illness in which he cannot comprehend the import of
arraignment, in which case he shall be confined to a mental institution;
2) When there is a prejudicial question;
3) When there is a pending petition for review before the DOJ or Office of the President which
should not exceed 60 days from filing.

Q: Can the court proceed with the arraignment after the 60 day period pendency of the Petition for
Review before the Department of Justice?

A; YES. Rule 116, Section 11 of the Revised Rules of Criminal Procedure pertains to a suspension of an
arraignment in case of a pending petition for review before the Department of Justice. It does not suspend
the execution of a warrant of arrest for the purpose of acquiring jurisdiction over the person of an
accused. this Court's rule merely requires a maximum 60-day period of suspension counted from the filing
of a petition with the reviewing office. Consequently, therefore, after the expiration of the 60-day
period, "the trial court is bound to arraign the accused or to deny the motion to defer arraignment.
(Mayor “Jong”Amado Corpus vs Judge Ramon Pamular, G.R. No. 186403, September 5, 2018)

Q: What Is the effect of the filing of the Petition for Review before the DOJ or Office of the
President on the jurisdiction of the court?

A: Under Section 11 (c) of Rule 116 of the Rules of Court, the arraignment shall be suspended for a
period not exceeding 60 days when a reinvestigation or review is being conducted at either the
Department of Justice or the Office of the President. However, we should stress that the court does
not lose control of the proceedings by reason of such review. Once it had assumed jurisdiction, it
is not handcuffed by any resolution of the reviewing prosecuting authority. Neither is it deprived
of its jurisdiction by such resolution. The principles established in Crespo v. Mogul still stands, as
follows:

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by
the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court,
the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the
92

merits proceed for the proper determination of the case. (Elizabeth N. Orola Vda. De Salabas V. Hon.
Eduardo R. Ermita, Hon. Manuel B. Gaite, P/Insp. Clarence Don Gail, P/Insp. Jonathan Lorilla,  Po3 Allen
Winston Hulleza And Po2 Bernardo Cimatu, G.R. No. 182090, February 1, 2016)

Q: What are the duties of the court in case accused pleads guilty to a capital offense?

A: Under this Rule, three things are enjoined upon the trial court when plea of guilty to capital offense is
entered: (a) the court must conduct a searching inquiry into the voluntariness of the plea and the
accused’s full comprehension of the consequences thereof; (b) the court must require the prosecution to
present evidence to prove the guilt of the accused and the precise degree of his culpability; and (c) the
court must ask the accused if he desires to present evidence on his behalf and allow him to do so if he
desires. (People of the Philippines vs. Elegio Nadera, Jr. y Sadsad, 324 SCRA 490)

Q: Is mere warning of the gravity of offense is sufficient?

A: A mere warning that the accused faces the supreme penalty of death is insufficient, for more often than
not, an accused pleads guilty upon bad advice or because he hopes for a lenient treatment or a higher
penalty. (People vs. Nadera Jr., 324 SCRA 490)

MOTION TO QUASH (RULE 117)

Q: What is “Hypothetical Admission Rule”?

A: A motion to quash the information is the 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 for defects which
are apparent in the face of the information. It is the hypothetical admission of the facts alleged in the
information. The fundamental test in determining the sufficiency of the material averments in an
Information is whether or not the facts alleged therein, which are hypothetically admitted, would establish
the essential elements of the crime defined by law. Evidence alliunde or matters extrinsic of the
information are not to be considered. To be sure, a motion to quash should be based on a defect in the
information which is evident on its face. (People of the Philippines vs. Edgardo V. Odtuhan, G.R. No.
191566, July 17, 2013)

Q: What is the nature of a Motion to Quash criminal complaint or information?

A: It is a litigated and omnibus motion which requires that all grounds for objection should be raised in the
said motion.

Q: What are the exceptions to the rule on omnibus motion?

A: a) that the grounds does not constitute an offense;

b) that the court trying the case has no jurisdiction over the offense charged;
c) that the criminal action or liability has been extinguished; and
d) that the 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. (Sec. 9, Rule 117)

Q: When to file a motion to quash complaint or information?

A: At any time before entering his plea, the accused may move to quash the complaint or information.

Q: What is the effect of failure to object on the illegality of arrest by filing a motion quash?

A: In this case, petitioner failed to raise any objection as to his warrantless arrest before he entered his
plea of "not guilty." Petitioner likewise did not move to quash the information against him prior to his
arraignment. Petitioner then actively participated in the trial of his case before the RTC. Therefore,
petitioner is deemed to have voluntarily submitted himself to the jurisdiction of the RTC and
waived any objection to the jurisdiction of the RTC based on a defect in his arrest, and he is
estopped from raising such an objection to have the judgment of conviction rendered by the RTC
reversed and set aside. (Rolando Dacanay Y Lacaste V. People Of The Philippines, G.R. No. 199018,
September 27, 2017)

Q: What are the grounds for the quashal of complaint or information?

A: The grounds on which a complaint or information may be quashed are:

(a) That the facts charged do not constitute an offense;

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(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for various offenses
is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or justification;
(i) That the 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.

Q: What is duty of the court if there is a motion to quash on the ground of defect in the
information?

A: If a motion to quash is based on a defect in the information that can be cured by amendment, the court
shall order that an amendment be made. Rule 117, Section 4 of the Rules of Court states:

SEC. 4. Amendment of complaint or information. - If the motion to quash is based on an alleged

defect of the complaint or information which can be cured by amendment, the court shall order
that an amendment be made.

If it is based on the ground that the facts charged do not constitute an offense, the
prosecution shall be given by the court an opportunity to correct the defect by amendment. The
motion shall be granted if the prosecution fails to make the amendment, or the complaint or
information still suffers from the same defect despite the amendment. (Virginia Dio V. People Of
The Philippines And Timothy Desmond, G.R. No. 208146, June 8, 2016)

Q: What is the rule in case the court issued an Order sustaining the Motion to Quash?

A: An order sustaining the motion to quash is not a bar to another prosecution for the same offense
unless the motion was based on the grounds specified in section 3 (g) and (i) of this Rule.

Q: What are the grounds which will bar another prosecution?

A: In case the motion to quash filed by the accused was granted by the court, it shall have the effect
of not barring another prosecution of the offense, except when the ground is:

a) that the criminal liability has been extinguished; and

b) double jeopardy

Q: What are the elements of double jeopardy?

A: Section 7, Rule 117 of the Rules of Court provides for the requisites for double jeopardy to set in: (1) a
first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a
second jeopardy is for the same offense as the first. A first jeopardy attaches only (a) after valid
indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered;
and (e) when the accused has been acquitted or convicted, or the case be dismissed or otherwise
terminated without his express consent. (Philippine National Bank vs. Lilian S. Soriano, G.R. No. 164051,
October 3, 2012)

Q: What are the exceptions to double jeopardy?

A: However, the conviction of the accused shall not be a bar to another prosecution for an offense which
necessarily includes the offense charged in the former complaint or information under any of the following
instances:

(a) the graver offense developed due to supervening facts arising from the same act or omission
constituting the former charge;
(b) the facts constituting the graver charge became known or were discovered only after a plea
was entered in the former complaint or information; or
(c) the plea of guilty to the lesser offense was made without the consent of the prosecutor and of
the offended party except as provided in section 1(f) of Rule 116.
(d) Another recognized exception is petition for Certiorari grounded on grave abuse of discretion
on the part of the court, and lack of due process on the part of the prosecutor.

Case Law:
94

However, the rule against double jeopardy cannot be properly invoked in a Rule 65 petition,
predicated on two (2) exceptional grounds, namely: in a judgment of acquittal rendered with grave
abuse of discretion by the court; and where the prosecution had been deprived of due process.
The rule against double jeopardy does not apply in these instances because a Rule 65 petition
does not involve a review of facts and law on the merits in the manner done in an appeal. In
certiorari proceedings, judicial review does not examine and assess the evidence of the parties nor weigh
the probative value of the evidence. It does not include an inquiry on the correctness of the evaluation of
the evidence. A review under Rule 65 only asks the question of whether there has been a validly
rendered decision, not the question of whether the decision is legally correct. In other words, the focus of
the review is to determine whether the judgment is per se void on jurisdictional grounds. (Arnold James
M. Ysidoro vs. Hon. Teresita J. Leonardo-de Castro, et al., G.R. No. 171513, February 6, 2012)

Q: What is the remedy after Motion to Quash is granted?

A: Thus, if the defect can be cured by amendment or if it is based on the ground that the facts charged
do not constitute an offense, the prosecution is given by the court the opportunity to correct the defect by
amendment. If the motion to quash is sustained, the court may order that another complaint or information
be filed except when the information is quashed on the ground of extinction of criminal liability or double
jeopardy. (People of the Philippines vs. Edgardo V. Odtuhan, G.R. No. 191566, July 17, 2013)

Q: Is declaration of nullity of prior marriage a ground for quashal of criminal information for
bigamy?

A: NO. The declaration of nullity of prior marriage is not a proper ground for motion to quash the bigamy
case. The respondent is still liable because what makes a person criminally liable for bigamy is when he
contracts a second or subsequent marriage during the subsistence of a valid marriage. He who contracts
a second marriage before the judicial declaration of the nullity of the first marriage assumes the risk of
being prosecuted for bigamy. (People of the Philippines v. Edgardo Udtuhan Gr. 191566, July 17, 2013)

Q: What is the rule on Revival of Provisionally Dismissed Cases under the Continuous Trial Rule?

Q: What is the rule on provisional dismissal?

A: A case shall not be provisionally dismissed except with the express consent of the accused and
with notice to the offended party.

1) Offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount,
or both, shall become permanent one (1) year after issuance of the order without the case having
been revived;

2) With respect to offenses punishable by imprisonment of more than six (6) years, their
provisional dismissal shall become permanent two (2) years after issuance of the order without the
case having been revived. (Sec. 8, Rule 117)

Case Law:

In sum, this Court is of the considered view that the subject dismissal of the criminal cases was
provisional in nature and that the cases presently sought to be prosecuted by the respondent are mere
revival or re-opening of the dismissed cases. The present controversy, being one involving, “provisional
dismissal” and revival of criminal cases, falling within the purview of the prescriptive period provided
under Section 8, Rule 117 of the 2000 Revised Rules of Criminal Procedure. The second paragraph of
the said provision is couched in clear, simple and categorical words. It mandates that for offenses
punishable by imprisonment of more than six (6) years, as the subject criminal cases, their
provisional dismissal shall become permanent two (2) years after the issuance of the order
without the case having been revived. to revive the criminal cases are not definitely barred by the two-
year prescriptive period provided therein. (People of the Philippines, et al. vs. Panfilo Lacson, G.R. No.
149453, May 28, 2002)

XV. PRE- TRIAL CONFERENCE (RULE 118)

Q: When to conduct pre-trial conference in criminal cases?

A: In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan
Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial
95

Court, the court shall, after arraignment and within thirty (30) days from the date the court
acquires jurisdiction over the person of the accused, unless a shorter period is provided for in
special laws or circulars of the Supreme Court, order a pre-trial conference to consider the
following:

Q: What is the purpose of pre-trial conference?

A: The court conducting the pre-trial conference shall consider the following:

(a) plea bargaining;

(b) stipulation of facts;
(c) marking for identification of evidence of the parties;
(d) waiver of objections to admissibility of evidence;
(e) modification of the order of trial if the accused admits the charge but interposes a
lawful defense; and
(f) such matters as will promote a fair and expeditious trial of the criminal and civil
aspects of the case. (Sec. 1, Rule 118)

Q: What are the Distinctions Between A Pre-Trial in A Civil and A Criminal Case? (Bar Exam)

Pre- trial in Criminal Case (Rule 118) Pre- trial in Criminal Case (Rule 18)

a) Pre-trial in a criminal case is ordered by the court a) Pre-trial in a civil case is set when the plaintiff
and no motion to set the case for pre-trial is required moves ex parte to set the case for pre-trial (Section 1,
from either the prosecution or the defense. (Section 1, Rule 18 of the Rules of Court).
Rule 118 of the Rules of Court).

b) In a criminal case, the pre-trial is ordered
by the court after arraignment and within thirty (30)
days from the date the court has acquired jurisdiction
over the person of the accused (Section 1, Rule 118 of
the Rules of Court)
c) Pre-trial in a criminal case does not include the
considering of the possibility of amicable settlement of
criminal liability as one of its purposes, except when
the law allows the case be compromises (Section 1,
Rule 118).
The motion to set the case for pre-trial in a civil case is
made after the last pleading has been served and
filed, or the period to file the same has already lapsed
(Section 1, Rule 18 of the Rules of Court).
c) Pre-trial in a civil case considers the possibility of an
amicable settlement as an important objective of the
proceedings (Section 2[a], Rule 18).

d) In a criminal case, all agreements or admissions
made or entered during the pre-trial conference shall
be reduced in writing and signed by the accused and
counsel; otherwise, they cannot be used against the
accused (Section 2, Rule 118).
e) The sanctions in a criminal case are imposed upon
the counsel for the accused or the prosecutor (Section
3, Rule 118).
e) pre-trial brief in criminal cases is not required.
d) In a civil case, the agreements and admissions
made in pre-trial are not required to be signed by the
parties and their counsels. They are to be contained in
the record of pre-trial and the pre-trial order (Section
7, Rule 18).
d) The sanctions for non-appearance in a pre-trial
conference are imposed upon the plaintiff or the
defendant in a civil case (Section 4, Rule 18.
e) Filing of pre-trial brief is required in civil cases
(Sec.6, Rule 18)

Q: Is Judicial Affidavit Rule applicable in criminal cases?

A: (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 of
A.M. No. 12-8-8-SC, Judicial Affidavit Rule)

XV. TRIAL (RULE 119)

Q: When is an essential witness considered absent?

A: Essential witness shall be considered absent when his whereabouts are unknown or his whereabouts
cannot be determined by due diligence. (Sec. 3, Rule 119)
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Q: When is an essential witness unavailable?

A: He shall be considered unavailable whenever his whereabouts are known but his presence for trial
cannot be obtained by due diligence. (Sec. 3, Rule 119)

Q: What is the remedy of the accused if he was not brought to trial within the time limit?

A: If the accused is not brought to trial within the time limit required by Section 1(g), Rule 116 and Section
1, as extended by Section 6 of this Rule, the information may be dismissed on motion of the accused
on the ground of denial of his right to speedy trial. (Sec. 9, Rule 119)

Q: What is the order of trial in criminal cases?

A: The trial shall proceed in the following order:

(a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil
liability.
(b) The accused may present evidence to prove his defense and damages, if any, arising, from
the issuance of a provisional remedy in the case.
(c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal
evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing
upon the main issue.
(d) Upon admission of evidence of the parties, the case shall be deemed submitted for decision
unless the court directs them to argue orally or to submit written memoranda.
(e) When the accused admits the act or omission charged in the complaint or information
but interposes a lawful defense, the order of trial may be modified.
f) After the defense had already rested it case, the prosecution may present rebuttal
evidence. (Sec 11, Rule 119)

Q: What is the nature of the change of order of trial?

A: Rule 119, Section 3(e) does not require such a change in the order of trial but only allows it in
the discretion of the court. — The present rule is a response to the early case of Alejandro vs. Pepito in
which we ruled that even in situations where the pleas of self-defense is raised, the constitutional
provision that no person shall be held to answer for a criminal offense without due process still requires
that in the presentation of evidence the prosecution must go forward and present all its proof in the first
instance before the accused is required to substantiate his defense because the latter is presumed
innocent until the contrary is proved. The change found in the present rule is based on the theory that by
pleading self defense, the accused admits the killing and therefore the burden of justification is now on
him. Rule 119, Section 3(e) does not require such a change in the order of trial but only allows it in the
discretion of the court. This can be seen in the use of the permissive “may.” (People of the Philippines vs.
SPO1 Romulo Gutierrez, Jr., 302 SCRA 643)

Q: Where will the conduct of conditional examination of the prosecution witness be made?

A: Rule 119 categorically states that the conditional examination of a prosecution witness shall be
made before the court where the case is pending. Contrary to petitioners’ contention, there is nothing
in the rule which may remotely be interpreted to mean that such requirement applies only to cases where
the witness is within the jurisdiction of said court and not when he is kilometres away, as in the present
case. Therefore, the court may not introduce exceptions or conditions. Neither may it engraft into the law
(or the Rules) qualifications not contemplated. When the words are clear and categorical, there is no
room for interpretation. There is only room for application. (Concepcion Cuenco Vda. De Manguerra v.
Raul Risos, G.R. No. 152643, August 28, 2008)

Q: Will Rule 23 in taking of deposition by written interrogatories be applicable in a suppletory

manner when the accused was convicted of a crime with a penalty of death in a foreign country?

A: First, Sec. 15, Rule 119 of the Revised Rules of Criminal Procedure requiring prosecution witnesses
who are either sick or infirm or has left the Philippines without any date of return, to deliver their testimony
in open court cannot be applied to the private complainant, because her situation as a death row convict
in a foreign country incapacitates her from making decisions, on her own, to take the witness stand. Such
decision to testify and the manner by which her testimony is to be given depends on the
Indonesian authorities before whom she was sentenced to suffer the supreme penalty of
death;      
 
Second, considering the inapplicability of Sec. 15, Rule 119 of the Revised Rules of
Criminal Procedure, the Court found it appropriate to apply in a suppletory manner, Sec. 23 of the
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Revised Rules of Court for the taking of the private complainant's deposition upon written
interrogatories. Sec. 1, Rule 23 of the Revised Rules of Court specifically provides that the
deposition of a person confined in prison may be taken only by leave of court upon such terms as
the court prescribes;  (People of the Philippines vs. Maria Cristina P. Sergio and Julius Lacanilao, G.R.
No. 240053, October 9, 2019)

Q: What are the requisites for the discharge of the accused as a state witness available?

A: When two or more persons are jointly charged with the commission of any offense, upon motion of the
prosecution before resting its case, the court may direct one or more of the accused to be discharged with
their consent so that they may be witnesses for the state when, after requiring the prosecution to present
evidence and the sworn statement of each proposed state witness at a hearing in support of the
discharge, the court is satisfied that:

(a) There is absolute necessity for the testimony of the accused whose discharge is requested;
(b) There is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving moral turpitude.

Q: What is the effect of discharge of the accused?

A: The order indicated in the preceding section shall amount to

1) An acquittal of the discharged accused; and

2) Shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to
testify against his co-accused in accordance with his sworn statement constituting the basis for his
discharge. (Sec. 18, Rule 119)

Q: What is the effect of the denial of the motion to discharge as a state witness on the testimony
of the applicant?

A: Section 17 or Rule 119 of the Rules of Court provides that testimony of the witness during the
discharge proceeding will only be inadmissible if the court denies the motion to discharge the
accused as a state witness. However, the motion hearing in this case had already concluded and the
motion for discharge, approved. Thus, whatever transpired during the hearing is already automatically
deemed part of the records of criminal case and admissible in evidence pursuant to the rule. Mendiola’s
testimony was not incomplete. The contents of his lengthy narration were more than sufficient to establish
his possession of all the necessary qualifications to be eligible as a state witness. (People of the
Philippines vs Roger Dominguez, G.R. No. 229420, February 19, 2018)

Q: Is there an instance where the testimony of the applicant for a state witness is admissible?

A: Section 18, Rule 119 of the Rules of Court requires the accused to testify again during trial proper after
he qualifies as a state witness. However, non-compliance would only prevent the order of discharge from
operating as an acquittal; it does not speak of any penalty to the effect of rendering all the testimonies of
the state witness during the discharge proceeding inadmissible. On the contrary, the testimonies and
admissions of a state witness during the discharge proceedings may be admitted as evidence to
impute criminal liability against him should he fail or refuse to testify in accordance with his
sworn statement constituting the basis for the discharge, militating against the claim of
inadmissibility. (People of the Philippines vs Roger Dominguez, G.R. No. 229420, February 19, 2018)

Q: What is the effect in case of mistake in charging the proper offense?

A: When it becomes manifest at any time before judgment that a mistake has been made in
charging the proper offense and the accused cannot be convicted of the offense charged or any other
offense necessarily included therein it has the effect that,

1) The accused shall not be discharged if there appears good cause to detain him;
2) In such case, the court shall commit the accused to answer for the proper offense and dismiss
the original case upon the filing of the proper information. (Sec. 19, Rule 119)

Q: When is joint trial allowed?

A: Joint trial is permissible “where the [actions] arise from the same act, event or transaction,
involve the same or like issues, and depend largely or substantially on the same evidence,
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provided that the court has jurisdiction over the cases to be consolidated and that a joint trial will
not give one party an undue advantage or prejudice the substantial rights of any of the parties
(Romulo L. Neri vs. Sandiganbayan, GR No. 202243, August 7, 2013)

Q: What is demurrer to evidence?

A: A demurrer to evidence is defined as “an objection by one of the parties in an action, to the effect that
the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out
a case or sustain the issue.” (Gutib vs. Court of Appeals, 371 Phil. 293, 300 [1999]) The party demurring
challenges the sufficiency of the whole evidence to sustain a verdict. (Ong vs. People, G.R. No. 140904,
9 October 2000, 342 SCRA 372, 383, citing Gutib vs. CA, supra.) In passing upon the sufficiency of the
evidence raised in a demurrer, the court is merely required to ascertain whether there is competent or
sufficient proof to sustain the indictment or to support a verdict of guilt. (Choa vs. Choa, 441 Phil. 175,
183 [2002], citing Ong vs. People, supra; and Gutib vs. CA, supra.; Juan G. Rivera, vs. People of the
Philippines, G.R. No. 163996, June 9, 2005)

Q: What is the course of action of the court after the prosecution has rested its case?

A: After the prosecution has rested its case, the court shall inquire from the accused if he/she desires to
move for leave of court to file a demurrer to evidence, or to proceed with the presentation of his/her
evidence. (Rules on Continuous Trial In Criminal Cases)

Q: Can the accused move for an oral motion for leave of court?

A: Yes. If the accused orally moves for leave of court to file a demurrer to evidence, the court shall orally
resolve the same.

Q: What is the effect if the motion for leave is denied?

A: If the motion for leave is denied, the court shall issue an order for the accused to present and
terminate his/her evidence on the dates previously scheduled and agreed upon, and to orally offer and
rest his/her case on the day his/her last witness is presented.

Q: What is the effect if the accused insist on filing of demurrer to evidence despite denial?

A: If despite the denial of the motion for leave, the accused insists on filing to demurrer to evidence, the
previously scheduled dates for the accused to present evidence shall be cancelled.

Q: When to file a demurrer to evidence? When to file the comment?

A: The demurrer to evidence shall be filed within a non-extendible period of ten (10) calendar days from
the date leave of court is granted, and the corresponding comment shall be filed within a non-extendible
period of ten (10) calendar days counted from the date of receipt of the demurrer to evidence.

Q: When to resolve the demurrer?

A: The demurrer shall be resolved by the court within a non-extendible period of thirty (30) calendar days
from date of the filing of the comment of lapse of the ten (10)-day period to file the same.

Q: What is the effect if the motion for leave is granted, but the demurrer is denied?

A: If the motion for leave of court to file demurrer to evidence is granted, and the subsequent demurrer to
evidence is denied, the accused shall likewise present and terminate his/her evidence (one day apart,
morning and afternoon) and shall orally offer and rest his/her case on the day his/her witness is
presented.

Q: What is the course of action of the court?

A: The court shall rule on the oral offer of evidence of the accused and the comment or objection of the
prosecution on the same day of the offer.

Q: Remedy of the accused if demurrer to evidence is granted

A: In a nutshell, the remedy from an order of dismissal upon demurrer to evidence is a petition
for certiorari under Rule 65 grounded on grave abuse of discretion amounting to lack or excess of
jurisdiction or denial of due process which renders the consequent order of acquittal null and void. It being
a nullity, the dismissal order does not result in jeopardy. (Rosemarie Eribal Bowden, represented by
Florencio C. Eribal, Sr. vs. Donald William Alfred Bowden, G.R. No. 228739, July 17, 2019)
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Q: What is the coverage of the Order granting demurrer to evidence?

A: In criminal cases, the demurrer to evidence partakes of the nature of a motion to dismiss the case for
failure of the prosecution to prove his guilt beyond reasonable doubt. In a case where the accused files a
demurrer to evidence without leave of court, he thereby waives his right to present evidence and submits
the case for decision on the basis of the evidence of the prosecution. On the other hand, if the accused is
granted leave to file a demurrer to evidence, he has the right to adduce evidence not only on criminal
aspect but also on the civil aspect of the case if his demurrer is denied by the court. (People v. Emelio
Tolentino y Estrella, G.R. No. 176385, February 26, 2008)

XVI. JUDGMENT (RULE 120)

Q: What are the contents of a judgment of conviction?

A: If the judgment is of conviction, it shall state the following:

(1) the legal qualification of the offense constituted by the acts committed by the accused and the
aggravating or 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; and (4) the civil liability or damages caused by his
wrongful act or 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 or waived.

Q: What are the contents of a judgment of acquittal?

A: In case the judgment is of acquittal, it shall state:

1) whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or
2) It merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall
determine if the act or omission from which the civil liability might arise did not exist. (Sec. 2, Rule 120)

Q: What is the effect of the judgment of acquittal on the civil liability ex delicto?

A: Consistent with this, the Rules of Court requires that in judgments of acquittal the court must state
whether "the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely
failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or
omission from which the civil liability might arise did not exist."

A civil action filed for the purpose of enforcing civil liability ex delicto, even if mandatorily
instituted with the corresponding criminal action, survives an acquittal when it is based on the
presence of reasonable doubt. In these instances, while the evidence presented does not
establish the fact of the crime with moral certainty, the civil action still prevails for as long as the
greater weight of evidence tilts in favor of a finding of liability. (Gloria S. Dy V. People Of The
Philippines, Mandy Commodities Co., Inc., Represented By Its President, William Mandy, G.R. No.
189081, August 10, 2016)

Q: What are the effects in case accused failed to object when there are two or more offenses in
the complaint or information?

A: When two or more offenses are charged in a single complaint or information but the accused fails to
object to it before trial, the court may:

1) Convict him of as many offenses as are charged and proved; and

2) Impose on him the penalty for each offense, setting out separately the findings of fact and law
in each offense. (Sec. 3, Rule 120)

Q: What is the rule on variance of offense charged and proved?

A: In view thereof, petitioners may, in theory, still be held liable for Illegal Possession of Dangerous Drugs
under Section 11, Article II of RA 9165 by virtue of the variance doctrine as enunciated in Section 4 of
Rule 120 of the Rules of Court. The rule is that when there is a variance between the offense
charged in the complaint or information, and that proved or established by the evidence, and the
offense as charged necessarily includes the offense proved, the accused shall be convicted of the
offense proved included in that which is charged. An offense charged necessarily includes that
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which is proved, when some of the essential elements or ingredients of the former, as alleged in
the complaint or information, constitute the latter. On this score, the transport of the illegal drugs
would necessarily entail the possession thereof. (Nor Jelamin Musa, Ivan Usop Bito, and Monsour
Abdulrakman Abdilla vs. People of the Philippines, G.R. No. 242132, September 25, 2019)

Q: What is the effect if there is variance in the facts charged and proved?

A: A variance in the mode of commission of the offense is binding upon the accused if he fails to object to
evidence showing that the crime was committed in a different manner than what was alleged. While the
information clearly states that the crime was committed by appellant's insertion of his penis inside AAA's
vagina, the latter solemnly testified on the witness stand that appellant merely put his penis in her mouth.
Nevertheless, appellant failed to register any objection that the Information alleged a different mode of the
commission of the crime of rape. Thus, appellant's conviction for rape by sexual assault must be
sustained, the variance notwithstanding. (People Vs. Gullermo Lomaque, Gr 189297, June 5, 2013)

Q: Can the accused be convicted of rape by sexual assault when the offense charged is rape
through carnal knowledge?

A: No. However, since the charge in the Information for the December 2003 incident is rape through
carnal knowledge, Pareja cannot be found guilty of rape by sexual assault even though it was proven
during trial. This is due to the material differences and substantial distinctions between the two modes of
rape; thus, the first mode is not necessarily included in the second, and vice-versa. Consequently, to
convict Pareja of rape by sexual assault when what he was charged with was rape through carnal
knowledge, would be to violate his constitutional right to be informed of the nature and cause of the
accusation against him.

Nevertheless, Pareja may be convicted of the lesser crime of acts of lasciviousness under
the variance doctrine embodied in Section 4, in relation to Section 5, Rule 120 of the Rules of
Criminal Procedure,52 to wit:

SEC. 4. Judgment in case of variance between allegation and proof. – When there is a variance
between the offense charged in the complaint or information and that proved, and the offense as charged
is included in or necessarily includes the offense proved, the accused shall be convicted of the offense
proved which is included in the offense charged, or of the offense charged which is included in the
offense proved.

SEC. 5. When an offense includes or is included in another. – An offense charged necessarily

includes the offense proved when some of the essential elements or ingredients of the former, as alleged
in the complaint or information, constitute the latter. And an offense charged is necessarily included in the
offense proved, when the essential ingredients of the former constitute or form part of those constituting
the latter. (People Of The Philippines Vs. Bernabe Pareja Y Cruz, G.R. No. 202122, January 15, 2014)

Q: Can the accused charged with estafa under Art. 315 of the RPC be convicted of the crime of
Other deceit under Art. 318?

A: YES. As a rule, an accused can only be convicted of the crime with which he or she is charged. This
rule proceeds from the Constitutional guarantee that an accused shall always be informed of the nature
and cause of the accusation against him or her. An exception to this is Rule 120, Section 4 of the Revised
Rules of Criminal Procedure where if there is a variance between the offense charged and the offense
proved, an accused may be convicted of the offense proved if it is included in the offense charged. An
accused may also be convicted of the offense charged if it is necessarily included in the offense proved.

In the present case, the crime of other deceits under Article 318 of the Revised Penal Code
is necessarily included in the crime of estafa by means of deceit under Article 315(2)(a) of the
Revised Penal Code. Therefore, petitioner may be convicted of other deceits under Article 318 of
the Revised Penal Code. (Maria Osorio vs People of the Philippines, G.R. No. 207711, July 2, 2018)

Q: When can a judgment be modified?

A: A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes
final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final
after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally
satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for
probation.

Q: How will the judgment be promulgated?

The judgment is promulgated in the following manner, to wit:

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1) By reading it in the presence of the accused and any judge of the court in which it was
rendered;
2) However, if the conviction is for a light offense, the judgment may be pronounced in the
presence of his counsel or representative;
3) When the judge is absent or outside the province or city, the judgment may be promulgated by
the clerk of court.

Q: Is presence of a counsel required during promulgation of judgment?

A: Section 6, Rule 120 of the Revised Rules of Criminal Procedure, as amended, provides: “The
judgment is promulgated by reading it in the presence of the accused and any judge of the court
in which it was rendered. However, if the conviction is for a light offense, the judgment may be
pronounced in the presence of his counsel or representative.” There is nothing in the rules that
requires the presence of counsel for the promulgation of the judgment of conviction to be valid.
While notice must be served on accused and his counsel, the latter’s absence during the promulgation of
judgment would not affect the validity of the promulgation. Indeed, no substantial right of the accused on
the merits was prejudiced by such absence of his counsel when the sentence was pronounced. (Marino
B. Icdang v. Sandiganbayan, et al, G.R. No. 185960, January 25, 2012)

Q: What is the effect if the accused failed to appear during the promulgation of judgment?

A: Section 6, Rule 120 of the Rules of Criminal Procedure expressly indicates, the promulgation of the
judgment of conviction may be done in absentia. The accused in such case is allowed a period of 15 days
from notice of the judgment to him or his counsel within which to appeal; otherwise, the decision becomes
final. The accused who fails to appear at the promulgation of the judgment of conviction loses the
remedies available under the Rules of Court against the judgment, specifically: (a) the filing of a
motion for new trial or for reconsideration (Rule 121), and (b) an appeal from the judgment of
conviction (Rule 122). However, the Rules of Court permits him to regain his standing in court in
order to avail himself of these remedies within 15 days from the date of promulgation of the
judgment conditioned upon: (a) his surrender; and (b) his filing of a motion for leave of court to
avail himself of the remedies, stating therein the reason for his absence. Should the trial court find
that his absence was for a justifiable cause, he should .be allowed to avail himself of the remedies within
15 days from notice of the order finding his absence justified and allowing him the available remedies
from the judgment of conviction. (Horacio Salvador vs. Lisa Chua, G.R. No. 212865, July 15, 2015,
BERSAMIN, J)

Q: Does Sec. 6, Rule 120 takes away the substantive right of the accused?

A: NO. We said in Jaylo, et al. v. Sandiganbayan, et al.  that Section 6, Rule 120 of the Rules, which
provides that an accused who failed to appear at the promulgation of the judgment of conviction shall lose
the remedies available against the judgment, does not take away substantive rights but merely provides
the manner through which an existing right may be implemented.

Section 6, Rule 120, of the Rules of Court, does not take away per se the right of the
convicted accused to avail of the remedies under the Rules. It is the failure of the accused to appear
without justifiable cause on the scheduled date of promulgation of the judgment of conviction that forfeits
their right to avail themselves of the remedies against the judgment. (Salvador Estipona, Jr. Y Asuela, V.
Hon. Frank E. Lobrigo, Presiding Judge of The Regional Trial Court, Branch 3, Legazpi City, Albay, And
People Of The Philippines, G.R. No. 226679, August 15, 2017)

Q: What is the effect of failure of the accused to surrender within 15 days after he failed to appear
during promulgation of judgment?

A: Clearly, petitioner lost the remedies available to him when he failed to appear at the
promulgation of judgment despite being notified of the same. He cannot shift the blame to his
counsel, for while Atty. Albura was out of line when he deliberately did not appear at the promulgation "as
a sign of protest," it was still incumbent on petitioner to attend the same. Moreover, the rule provides
that within 15 days from promulgation, the accused may still surrender and file a motion for leave
of court to avail of the remedies, after proving that his absence was for a justifiable cause .
However, the Court notes that petitioner, who was out on bail, failed to surrender himself as he was then
at large. He was only arrested on February 10, 2010. (In Re: The Writ of Habeas Corpus for Michael
Labrado Abellana (Detained at the New Bilibid Prisons, Muntinlupa City) vs. Hon. Meinrado P. Paredes,
G.R. No. 232006, July 10, 2019)

XVII. MOTION FOR NEW TRIAL/RECONSIDERATION (RULE 121)

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Q: What are the grounds for new trial?

A: (a) That errors of law or irregularities prejudicial to the substantial rights of the accused have
been committed during the trial;

(b) That new and material evidence has been discovered which the accused could not with
reasonable diligence have discovered and produced at the trial and which if introduced and admitted
would probably change the judgment.

Q: What is the ground for motion for reconsideration?

  
A: The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which
requires no further proceedings.

Q: What are the effects of granting of new trial or reconsideration?

A: In case the motion for new trial or reconsideration is granted by the court, it shall produce the
following effects:

a) When a new trial is granted on the ground of errors of law or irregularities committed
during the trial, all the proceedings and evidence affected thereby shall be set aside and taken a
new. The court may, in the interest of justice, allow the introduction of additional evidence.

b) When a new trial is granted on the ground of newly-discovered evidence, the

evidence already adduced shall stand and the newly-discovered and such other evidence as the
court may, in the interest of justice, allow to be introduced shall be taken and considered
together with the evidence already in the record.

c) In all cases, when the court grants new trial or reconsideration, the original judgment
shall be set aside or vacated and a new judgment rendered accordingly. (Sec. 6, Rule 121)

Q: Are mistakes, negligence and incompetence of a counsel a ground for motion for new trial?

A: NO. Mistakes of attorneys as to the competency of a witness, the sufficiency, relevancy, materiality, or
immateriality of certain evidence, the proper defense, or the burden of proof are not proper grounds for a
new trial. In this case, petitioners failed to convince this Court that they have a meritorious defense and
that the evidence they seek to introduce would probably lead to their acquittal. Their former counsel was
not grossly negligent. (Farouk B. Abubakar vs People of the Philippines, G.R. No. 202408, 202409,
202412, June 27, 2018)

XVIII. APPEAL (RULE 122)

Q: Is “fresh period rule” applicable in criminal case?

A: YES. he ruling in Neypes is also applicable to criminal cases regarding appeals from
convictions in criminal cases under Rule 122 of the Rules of Court. (Anselmo De Leon Cuyo v.
People of the Philippines, G.R. No. 192164, October 12, 2011)

Q: What is the effect in case the appellate court imposed a higher penalty on appealed
cases:

A: Appellate court cannot impose a higher penalty than that impose by the trial court since it
would violate his right against double jeopardy, since the judgment against him could become
subject to modification without his consent. (Philippine Rabbit Bus Lines, Inc. v. People, G.R.
No. 147703, April 14, 2004)

Q: Can the crime of Acts of lasciviousness be upgraded to Rape upon motion to reinstate
by the Office of the Solicitor General on appeal?

A: The Honorable Supreme Court in the case of People vs. Arcega has already ruled that the
crime of acts of lasciviouness cannot be upgraded to the crime of Rape from the appeal by the
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Office of the Solicitor General since the offense Rape has already been dismissed by the Court
of Appeals and to reinstate the said crime would violate to the crime of double of jeopardy.

Q: How to appeal under Rule 122?

A: (a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice of
appeal with the court which rendered the judgment or final order appealed from and by serving
a copy thereof upon the adverse party.

(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in
the exercise of its appellate jurisdiction shall be by petition for review under Rule 42.

(c) The appeal to the Supreme Court in cases where the penalty imposed by the
Regional Trial Court is reclusion perpetua, or life imprisonment, or where a lesser penalty is
imposed but for offenses committed on the same occasion or which arose out of the same
occurrence that gave rise to the more serious offense for which the penalty of death, reclusion
perpetua, or life imprisonment is imposed, shall be by filing a notice of appeal in accordance
with paragraph (a) of this section.

(d) No notice of appeal is necessary in cases where the death penalty is imposed by
the Regional Trial Court. The same shall be automatically reviewed by the Supreme Court as
provided in section 10 of this Rule. Sec. 3, Rule 122

Q: What is the mode of appeal when the penalty imposed is reclusion perpetua or life
imprisonment?

A: At the outset, the Court notes that these cases were elevated to Us on automatic review in view of the
RTC's imposition of the death penalty upon appellant in its June 25, 1997 Decision. However, with the
Court's pronouncement in the 2004 case of People vs. Mateo, providing for and making mandatory the
intermediate review by the CA of cases involving the death penalty, reclusion perpetua or life
imprisonment, the proper course of action would be to remand these cases to the appellate court for the
conduct of an intermediate review. (People of the Philippines vs. Val Delos Reyes, G.R. No. 130714 &
139634, October 16, 2012)

Q: When will the appeal be taken?

A: Section 6, Rule 122 of the Revised Rules of Criminal Procedure provides for the period when an
appeal from a judgment or final order in a criminal case should be taken, viz:

Sec. 6. When appeal to be taken. – An appeal must be taken within fifteen (15) days from
promulgation of the judgment or from notice of the final order appealed from. This period for
perfecting an appeal shall be suspended from the time a motion for new trial or reconsideration is filed
until notice of the order overruling the motions has been served upon the accused or his counsel at which
time the balance of the period begins to run.

X x x x.

In exceptional cases, the Court has in fact relaxed the period for perfecting an appeal on
grounds of substantial justice or when there are other special and meritorious circumstances and
issues.

Thus, in Remulla v. Manlongat, the Court considered the one-day late filing of the prosecution’s
notice of appeal as excusable given the diligent efforts exerted by the private prosecutor in following up its
filing with the public prosecutor. (ANITA RAMIREZ vs. PEOPLE OF THE PHILIPPINES, G.R. No.
197832, October 2, 2013)

Q: What is the effect of appeal by one or 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. (Sec. 11, Rule 122)

Q: Can the appellate court motu propio correct an error not specifically assigned on appeal?
104

A: An appeal in a criminal case "throws the whole case open for review." The underlying principle is
that errors in an appealed judgment, even if not specifically assigned, may be corrected motu
propio  by the court if the consideration of these errors is necessary to arrive at a just resolution
of the case. Nevertheless, "the right to appeal is neither a natural right nor a part of due process, it being
merely a statutory privilege which may be exercised only in the manner provided for by law. (Erwin Libo-
On Dela Cruz V. People Of The Philippines, G.R. No. 209387, January 11, 2016)

Q: Will the appeal be dismissed for failure to file memorandum?

A: NO. The failure to file the memorandum on appeal is a ground for the RTC to dismiss the appeal
ONLY in civil cases. The same rule does not apply in criminal cases, because Section 9(c) Rule 122,
imposes on the RTC the duty to decide the appeal “on the basis of the entire record of the case and of
such memoranda or briefs as may have been filed” upon the submission of the appellate memoranda or
briefs, or upon the expiration of the period to file the same. (Jose Sanico vs. People of the Philippines,
G.R. No. 198753, March 25, 2015, BERSAMIN)

SEARCH AND SEIZURE (RULE 126)

Q: What is the nature of the application for a search warrant?

A: Also, under Section 1, Rule 126, “a search warrant 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 therein and bring it before the court.” In this case, it is admitted that
the application for the search warrant was not a criminal action and the application for the search
warrant was not of the same form as that of a criminal action. Verily, the search warrant is not
similar to a criminal action but is rather a legal process that may be likened to a writ of discovery
employed by no less than the State to procure relevant evidence of a crime. In that respect, it is an
instrument or tool, issued under the State's police power and this is the reason why it must issue
in the name of the People of the Philippines. Impleading the People of the Philippines in the petition for
certiorari did not depend on whether or not an actual criminal action had already been commenced in
court against the petitioner. It cannot be denied that the search warrant in question had been issued in the
name of the People of the Philippines, and that fact rendered the People of the Philippines indispensable
parties in the special civil action for certiorari brought to nullify the questioned orders of respondent
Presiding Judge. Therefore, the CA did not abuse its discretion when it denied petitioner’s petition for
certiorari. (Charlie Te vs. Hon. Augusto Breva, G.R. No. 164974, August 5, 2015, BERSAMIN, J.)

Q: Where will the application for search warrant be filed?

A: Generally, the search warrant application must be filed with the court which has territorial
jurisdiction over the place where the offense was alleged to be committed. This, however, is not an
iron-clad rule. For compelling reasons, which must be expressly stated in the application, a search
warrant application may be filed in a court other than the one having jurisdiction over the place where the
purported offense was committed and where the search warrant shall be enforced. (Petron Gasul Lpg
Dealers Association And Totalgaz Lpg Dealers Association V. Elena Lao, Imelda Lao, Pompidou
Golangco, Jeremy Wilson Golangco, Carmen Castillo, And/Or Occupants Of Baguio Gas Corporation,
G.R. No. 205010, July 18, 2016)

Q: Is a mere tip of an informant sufficient for the arrest or search to be conducted?

A: NO. The Constitution guarantees the right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and for any purpose. A mere
tip from an unnamed informant does not vest police officers with the authority to barge into
private homes without first securing a valid warrant of arrest or search warrant. While there are
instances where arrests and searches may be made without a warrant, the Court finds that the
constitutionally-protected right against unreasonable searches and seizures was violated in the
case at bar. (Martin Villamor Y Tayson, And Victor Bonaobra Y Gianan, V. People Of The Philippines,
G.R. No. 200396, August 22, 2017, Del Castillo, J.)

Q: Can a special commercial court issue writ of search and seizure?

A: YES. SEC. 2. Special Commercial Courts in the National Capital Judicial Region with authority to
issue writs of search and seizure enforceable nationwide. — Special Commercial Courts in Quezon
City, Manila, Makati, and Pasig shall have authority to act on applications for the issuance of writs
of search and seizure in civil actions for violations of the Intellectual Property Code, which writs
shall be enforceable nationwide. The issuance of these writs shall be governed by the rules prescribed
in Re: Proposed Rule on Search and Seizure in Civil Actions for Infringement of Intellectual Property
Rights (A.M. No. 02-1-06-SC, which took effect on February 15, 2002). Within their respective territorial
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jurisdictions, the Special Commercial Courts in the judicial regions where the violation of intellectual
property rights occurred shall have concurrent jurisdiction to issue writs of search and seizure.

Q: What is the requirement in case of search warrant relative to the subject offense (scatter-shot-
warrant)?

A: The search warrant must be issued for one specific offense. One of the constitutional
requirements for the validity of a search warrant is that it must be issued based on probable cause which
must be in connection with one specific offense to prevent the issuance of a scatter-shot warrant. Further,
a search warrant must particularly describe the place to be searched and the things to be seized. The
subject search warrant failed to state the specific offense alleged committed by respondents.
Consequently, it could not have been possible for the issuing judge as well as the applicant for the search
warrant to determine that the items sought to be seized are connected to any crime. ( People of the
Philippines vs Amador Pastrana, G.R. No. 196045, February 21, 2018)

Q: Is a search warrant void if it contains several counts of offense?

A: NO. Where a person kidnapped is killed or dies as a consequence of the detention, there is only one
special complex crime for which the last paragraph of Article 267 of the Revised Penal Code provides the
maximum penalty of death. Sec. 4, Rule 126 of the Rules of Court requires that such warrant must be
issued in relation to one offense. It is not amiss to add that a search warrant that covers several counts of
a certain specific offense does not violate the one-specific offense rule. (Jaylord Dimal vs People of the
Philippines, G.R. No. 216922, April 18, 2018)

Q: May non-parties question the validity of search warrant?

A: It is not correct to say that only the parties to the application for search warrant can question its
issuance or seek suppression of evidence seized under it – the proceeding for the issuance of search
warrant does not partake of an action where a party complains of a violation of his right by another.
(Securities and Exchange Commission vs. Rizza G. Mendoza, G.R. No. 170425, April 23, 2012)

Q: How the search be made under Sec. 8, Rule 126?

A: Evidence obtained and confiscated on the occasion of such unreasonable searches and seizures are
deemed tainted and should be excluded for being the proverbial fruit of a poisonous tree.

It must, however, be clarified that a search warrant issued in accordance with the provisions of
the Revised Rules of Criminal Procedure does not give the authorities limitless discretion in implementing
the same as the same Rules provide parameters in the proper conduct of a search.

Under Section 8 Rule 126, a search under the strength of a warrant is required to be
witnessed by the lawful occupant of the premises sought to be searched. It must be stressed that
it is only upon their absence that their presence may be replaced by two persons of sufficient age
and discretion residing in the same locality. (Edmund Bulauitan y Mauayan vs. People of the
Philippines, G.R. No. 218891, September 19, 2016)

Q: What is the effect of non-compliance with the two (2) witnesses rule on search and seizure
under Sec.8, Rule 126?

A: Section 8, Rule 126 provides that the search should be witnessed by two witnesses of sufficient age
and discretion residing in the same locality only in the absence of either the lawful occupant of the
premises or any member of his family. The hierarchy among the witnesses as explicitly provided under
the law was not complied with. For one, the lawful occupants of the premises were not absent when the
police authorities implemented the search warrant. Even so, the two-witness rule was not complied with
as only one witness the barangay captain was present when the search was conducted. Failure to
comply with the safeguards provided by law in implementing the search warrant makes the search
unreasonable. Thus, the exclusionary rule applies, i.e., any evidence obtained in violation of this
constitutional mandate is inadmissible in any proceeding for any purpose. (Jorge Dabon vs People
of the Philippines, G.R. No. 208775, January 22, 2018)

Q: What are the instances of a valid warrantless search?

A: 1. Warrantless search incidental to a lawful arrest . . . ;

2. Seizure of evidence in “plain view,” . . .
3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility
reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly
reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;
4. Consented warrantless search;
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5. Customs search;
6.Stop and frisk; and
7. Exigent and emergency circumstances. (People Of The Philippines Vs. Victor Cogaed Y
Romana, G.R. No. 200334, July 30, 2014)

Q: What is the requirement in order to have a valid incidental search?

A: Under Section 5 (a), Rule 113 of the Revised Rules of Criminal Procedure, the officer himself
witnesses the crime; while in Section 5 (b) of the same, he knows for a fact that a crime has just been
committed. A valid warrantless arrest which justifies a subsequent search is one that is carried out under
the parameters of Section 5 (a), Rule 113 of the Rules of Court, which requires that the apprehending
officer must have been spurred by probable cause to arrest a person caught inflagrante delicto. (Domingo
Agyao vs People of the Philippines, G.R. No. 227366, August 1, 2018)

Q: What are the essential requirements for a search incidental to a lawful arrest?

A: What the foregoing disquisition indicates is that the arresting officers plainly ignored the constitutional
and statutory limitations prescribed for a valid search at a checkpoint. They effected the warrantless
search of the personal effects of the accused-appellant without sufficient probable cause, and on
that basis arrested her. If the arrest did not precede the search, where was the probable cause that
justified her warrantless arrest?

The conclusion is inevitable that both the warrantless arrest of the accused-appellant and the
warrantless search of her personal effects were unreasonable. The consequence is to invalidate the
search. The marijuana seized from her should be deemed inadmissible in evidence pursuant to the
exclusionary rule enunciated under Section 3(2), Article III of the Constitution. With the
confiscated marijuana being the very corpus delicti of the crime charged, the accused-appellant should be
acquitted because the evidence adduced against her was entirely inadmissible. (People of the Philippines
vs. Rosemarie Gardon-Mentoy, G.R. No. 223140, September 4, 2019)

Q: What are the requirements for a valid custom search?

A: Hence, to be a valid customs search, the requirements are: (1) the person/s conducting the search
was/were exercising police authority under customs law; (2) the search was for the enforcement of
customs law; and (3) the place searched is not a dwelling place or house. Here, the facts reveal that the
search was part of routine port security measures. The search was not conducted by persons authorized
under customs law. It was also not motivated by the provisions of the Tariff and Customs Code or other
customs laws. Although customs searches usually occur within ports or terminals, it is important that the
search must be for the enforcement of customs laws. (Erwin Libo-On Dela Cruz V. People Of The
Philippines, G.R. No. 209387, January 11, 2016)

Q: Is airport frisking a valid warrantless search?

A: YES. Persons may lose the protection if the search and seizure clause by exposure of their persons or
property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation
society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures.
With increased concern about airplane high jacking and terrorism has come increased security at the
nation’s airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their
carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these
procedures suggest the presence of suspicious objects, physical searches are conducted to determine
what the objects are. There is little question that such searches are reasonable, given their minimal
intrusiveness, the gravity of safety interests involved, and the reduced privacy expectations associated
with airline travel. (People of the Philippines vs. Hadji Socor Cadidia, GR No. 191263, October 16, 2013)

Q: Is warrantless search valid against a government employee in case of his misconduct?

A: YES. A warrantless search by a government employer of an employees’ office is justified at inception

when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty
of work-related misconduct. Thus, a search of a government employee’s files in the government-issued
computer, conducted in connection with investigation of work-related misconduct prompted by an
anonymous letter-complaint is reasonable. (Pollo v. Constantino-David, G.R. No. 181881, October 18,
2011)

Q: What is the difference between “Stop and Frisk” and Searches And Searches Incidental To
Lawful Arrest

A: “Stop and frisk” searches are often confused with searches incidental to lawful arrests under the
Rules of Court. Searches incidental to a lawful arrest require that a crime be committed in flagrante
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delicto, and the search conducted within the vicinity and within reach by the person arrested is done to
ensure that there are no weapons, as well as to preserve the evidence. On the other hand, “stop and
frisk” searches are conducted to prevent the occurrence of a crime. For instance, the search in Posadas
v. Court of Appeals was similar “to a ‘stop and frisk’ situation whose object is either to determine the
identity of a suspicious individual or to maintain the status quo momentarily while the police officer seeks
to obtain more information.” This court stated that the “stop and frisk” search should be used “[w]hen
dealing with a rapidly unfolding and potentially criminal situation in the city streets where unarguably there
is no time to secure . . . a search warrant. (People Of The Philippines Vs. Victor Cogaed Y Romana,
G.R. No. 200334, July 30, 2014)

Q: What is the requirement in order that there will be a valid search under stop-and-frisk?

A: The Court finds that the totality of the circumstances in this case is not sufficient to incite a genuine
reason that would justify a stop-and-frisk search on accused-appellant. Stop-and-frisk refers to where a
police officer observes unusual conduct which leads him reasonably to conclude in light of his experience
that criminal activity may be afoot and that the persons with whom he is dealing may be armed and
presently dangerous. An examination of the records reveals that no overt physical act could be
properly attributed to accused-appellant as to rouse suspicion in the minds of the arresting
officers that he had just committed, was committing, or was about to commit a crime. Hence, any
evidence obtained from unreasonable searches and seizures shall be inadmissible in evidence for any
purpose in any proceeding. (People of the Philippines vs Renante Comprado, G.R. No. 213225, April 4,
2018)

Q: What is the requirement for a search incidental to lawful arrest?

A: Search must precede the arrest: In a search incident to a lawful arrest, the law requires that there first
be a lawful arrest before a search can be made -- the process cannot be reversed. (Sanchez v. People,
G.R. No. 204589, November 19, 2014)

Q: What is the remedy in case of an Order quashing the search warrant?

A: An application for a search warrant is a judicial process conducted either as an incident in a main
criminal case already filed in court or in anticipation of one yet to be filed. Whether the criminal case (of
which the search warrant is an incident) has already been filed before the trial court is significant for the
purpose of determining the proper remedy from a grant or denial of a motion to quash a search warrant.
Where the search warrant is issued as an incident in a pending criminal case, the quashal of a
search warrant is merely interlocutory. There is still “something more to be done in the said criminal
case, i.e., the determination of the guilt of the accused therein.” In contrast, where a search warrant is
applied for and issued in anticipation of a criminal case yet to be filed, the order quashing the
warrant (and denial of a motion for reconsideration of the grant) ends the judicial process. There
is nothing more to be done thereafter. Here, the applications for search warrants were instituted as
principal proceedings and not as incidents to pending criminal actions. When the search warrants issued
were subsequently quashed by the Regional Trial Court, there was nothing left to be done by the trial
court. Thus, the quashal of the search warrants were final orders, not interlocutory, and an appeal may be
properly taken therefrom. (World Wide Web Corporation, et al. v. People of the Philippines, et al./Planet
Internet Corporation v. Philippine Long Distance Telephone Company,G.R. Nos. 161106/161266,
January 13, 2014.)
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