I. GENERAL PRINCIPLES A.

CONCEPT OF REMEDIAL LAW

REMEDIAL LAW
It is a branch of law that prescribes the methods of
enforcing rights and obligations created by
substantive law. It provides a procedural system for
obtaining redress for the invasion of rights and
violations of duties. It also prescribes rules as to how
suits are filed, tried and decided upon by the courts.
A. CONCEPT OF REMEDIAL LAW
B. SUBSTANTIVE LAW AS B. SUBSTANTIVE LAW AS
DISTINGUISHED FROM REMEDIAL LAW
DISTINGUISHED FROM REMEDIAL
C. RULE-MAKING POWER OF THE
SUPREME COURT
LAW
SUBSTANTIVE LAW
Creates, defines and regulates rights and duties
concerning life, liberty or property which when
violated gives rise to a cause of action.

1. Limitations on the rule-making power

pf the Supreme Court
2. Power of the Supreme Court to amend
and suspend procedural rules

D. NATURE OF PHILIPPINE COURTS

C. RULE-MAKING POWER OF THE
SUPREME COURT

1. Meaning of a court
2. Court as distinguished from a judge
3. Classification of Philippine courts
4. Courts of original and appellate
jurisdiction 1. LIMITATIONS ON THE RULE-
5. Courts of general and special jurisdiction
6. Constitutional and statutory courts
MAKING POWER OF THE SUPREME
7. Courts of law and equity COURT
8. Principle of judicial hierarchy
9. Doctrine of non-interference or doctrine
of judicial stability

1
SEC 5 [5], ARTICLE VIII JUDICIAL DEPARTMENT
1. The rules shall provide a simplified and
inexpensive procedure for the speedy disposition
of cases
2. The rules shall be uniform for courts of the same
grade.
3. The rules shall not diminish, increase, or modify
substantive rights
2. POWER OF THE SUPREME COURT
TO AMEND AND SUSPEND
PROCEDURAL RULES
The courts have the power to relax or suspend
technical or procedural rules or to except a case from
their operation when compelling reasons so warrant
or when the purpose of justice requires it; what
constitutes good and sufficient cause that would
merit suspension of the rules is discretionary upon
the courts. (Commissioner of Internal Revenue v.
Migrant Pagbilao Corporation, G.R. No. 159593,
2006)
What impel the Court to set aside its rules is not the
party’s empty invocations of liberality but the merits
of a party’s position so that the same may not be
obstructed by mere deficiencies in form. (Munoz v.
People, G.R. No. 162772, 2008)
Compliance with the procedural rules is the general
rule, and abandonment thereof should only be done
in the most exceptional circumstances. (Pilapil v.
Heirs of Briones, G.R. No. 150175, 2007)
The Supreme Court may promulgate procedural rules
in all courts.26 It has the sole prerogative to amend,
repeal or even establish new rules for a more
simplified and inexpensive process, and the speedy
disposition of cases. In the rules governing appeals
to it and to the Court of Appeals, particularly Rules
42,27 4328 and 45,29 the Court allows extensions of
time, based on justifiable and compelling reasons, for
parties to file their appeals. These extensions may
consist of 15 days or more.
To standardize the appeal periods provided in the
Rules and to afford litigants fair opportunity to appeal
their cases, the Court deems it practical to allow a
fresh period of 15 days within which to file the notice
of appeal in the Regional Trial Court, counted from
receipt of the order dismissing a motion for a new
trial or motion for reconsideration (Neypes v. Court of
Appeals, G.R. No. 141524)
Its constitutional power to promulgate rules of
practice and procedure and to amend or repeal the
same necessarily carries with it the power to overturn
judicial precedents on points of remedial law through
the amendment of the Rules of Court. (Pinga v. Heirs
of Santiago, G.R. No. 170354, 2006)
CONSTITUTIONAL POWERS
Sec 5 [5], Article VIII Judicial Department
The Supreme Court shall have the power to
promulgate rules concerning the protection and
enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to
the practice of law, the Integrated Bar, and legal
assistance to the under-privileged.
Cases where the rules of court will not be
applicable
The Rules Will NOT be Applicable in the
Following Cases:
1. Election Cases;
2. Land Registration;
3. Cadastral Cases;
4. Naturalization;
5. Insolvency proceedings; and
6. Other cases not provided for in the Rules of
Court.
Exception:
The Rules of Court will be applicable in the
abovementioned cases by analogy or in a suppletory
character and whenever practicable and convenient.
D. NATURE OF PHILIPPINE COURTS
1. MEANING OF A COURT
It is an organ of the government belonging to the
judicial department the function of which is the
application of the laws to controversies brought
before it as well as the public administration of
justice. (Black’s, 5th Edition, 356 as cited in Riano,
Civil Procedure: A Restatement for the bar, 2nd ed,
2009)
It is noted that where an administrative tribunal’s
function partakes of the judicial, its exercise is styled
“QUASI-JUDICIAL”, but such administrative agencies
are NOT considered courts; they are neither part of
the judicial system nor are they deemed judicial
tribunals. (De Leon, Administrative Law: Text and
Cases, 6th ed, 2010)
2. COURT AS DISTINGUISHED FROM
A JUDGE
JUDGE
A public officer appointed to preside over a court for
the purpose of administering law.
2

Although the terms have often been erroneously
used interchangeably, they are not strictly
synonymous as they have the following distinctions:
INFERIOR COURTS are those which are
subordinate to other courts and whose judgments
and decrees can be reviewed by the higher tribunals.
Courts of Record and Not of Record
A COURT OF RECORD is one keeping a written
account of its proceedings which import verity, or
which is so denominated by the statute of its
creation.

A COURT NOT OF RECORD is one which is not

COURT JUDGE keeping a written account of its proceedings.

PROBATE COURTS
Courts whose basic jurisdiction is to administer
justice in matters relating to decedent estates.

4. COURTS OF ORIGINAL AND

APPELLATE JURISDICTION
A tribunal officially Is simply an officer of
assembled under such tribunal; a public
authority of law; an office officer

Is an organ of the Person who sits on the

government with a court
personality separate and
distinct from the judge
ORIGINAL COURTS are those wherein a case
arises. On the other hand, APPELLATE COURTS
are those wherein a case is reviewed.

5. COURTS OF GENERAL AND

SPECIAL JURISDICTION

The continuity of a court and the efficacy of its
proceedings are not affected by the death,
resignation, or cessation from the service of the
judge presiding over it. In other words, the judge may
resign, become incapacitated, or be disqualified to
hold office, but the court remains.
GENERAL COURTS are courts which take
cognizance of all cases, civil or criminal, of a
particular nature, or courts whose judgment are
conclusive until modified or reversed on direct attack,
and who are competent to decide on their own
jurisdiction.

3. CLASSIFICATION OF PHILIPPINE SPECIAL COURTS are those which can take

COURTS
Superior and Inferior Courts
SUPERIOR COURTS are courts with controlling
authority over some other court or courts, and with
certain original jurisdiction of its own.
cognizance of special jurisdiction for a particular
purpose, or are clothed with special powers for the
performance of specified duties, beyond which they
have no authority of any kind.
EXCLUSIVE vs. CONCURRENT JURISDICTION

3
EXCLUSIVE JURISDICTION – courts which have
jurisdiction over a subject matter to the exclusion of
other courts.
CONCURRENTJURISDICTION – courts which have
jurisdiction over the same subject matter and within
the same territory and wherein litigants may in the
first instance resort to either court indifferently.
6. CONSTITUTIONAL AND
STATUTORY COURTS
CONSTITUTIONAL COURTS are created by the
Constitution (i.e. the Supreme Court) while
STATUTORY COURTS are created by mere statute.
7. COURTS OF LAW AND EQUITY
A COURT OF LAW is any tribunal duly administering
the laws of the land.
The principle also bars a court from reviewing or
interfering with the judgment of a co-equal court over
which it has no appellate jurisdiction or power of
review. (Villamor v. Salas, G.R. No. L-101041, 1991)
This doctrine applies with equal force to
administrative bodies; when the law provides for an
appeal from the decision of an administrative body to
the Supreme Court or Court of Appeals, it means that
such body is co-equal with the Regional Trial Court in
terms of rank and stature, and logically beyond the
control of the latter. (Philippine Sinter Corporation v.
Cagayan Electric Power and Light Co., Inc., G.R. No.
127371, 2002)
Exceptions: THIRD-PARTY CLAIM
a. Execution through a separate action. (Rule 39,
Section 16)
b. Preliminary Attachment (Rule 57, Section 14)
c. Replevin, through intervention since the main
action is still pending. (Rule 60, Section 7)

A COURT OF EQUITY is one which administers END OF TOPIC

justice according to the rules and principles of equity.

8. PRINCIPLE OF JUDICIAL
HEIRARCHY

The judicial system follows a ladderized scheme

which in essence requires the lower courts initially
decide on a case before it is considered by a higher
court. II. JURISDICTION
A higher court will not entertain direct resort to it
unless the redress cannot be obtained in the
appropriate courts. (Santiago v. Vasquez, G.R. Nos.
99289-90, 1993)

9. DOCTRINE OF NON-
INTERFERENCE OR DOCTRINE
OF JUDICIAL STABILITY
This principle holds that courts of equal and
coordinate jurisdiction cannot interfere with each
other’s orders. (Lapu-lapu Development and Housing
Corporation v. Group Management Corporation, G.R. A. JURISDICTION OVER THE PARTIES
No. 141407, 2002)

Hence, a Regional Trial Court has no power or

authority to nullify or enjoin the enforcement of a writ
of possession issued by another Regional Trial
Court. (Suico Industrial Corporation v. Court of
Appeals, G.R. No. 123050, 1999) 1. How jurisdiction over the plaintiff is
acquired

4
 2. How jurisdiction over the defendant is 1. Supreme Court
acquired 2. Court of Appeals
3. Court of Tax Appeals
4. Sandiganbayan
5. Regional Trial Courts
6. Family Courts
7. Metropolitan Trial Courts/Municipal Trial
Courts
B. JURISDICTION OVER THE 8. Shariah Courts
SUBJECT MATTER

F. JURISDICTION OVER SMALL

1. Meaning of jurisdiction over the subject CLAIMS, CASES COVERED BY THE
matter RULES ON SUMMARY
2. Jurisdiction versus the exercise of PROCEDURE AND BARANGAY
jurisdiction
3. Error of jurisdiction as distinguished CONCILIATION
from error of judgment G. TOTALITY RULE
4. How jurisdiction is conferred and
determined JURISDICTION
5. Doctrine of primary jurisdiction
6. Doctrine of adherence of jurisdiction
7. Objections to jurisdiction over the
subject matter
8. Effect of estoppel on objections to
jurisdiction
The power and authority of the court to hear, try and
decide a case. It is also the power to enforce its
determination as it is only through the judgment and
its execution that the power of the court is made
efficacious and its jurisdiction complete.

C. JURISDICTION OVER THE ISSUES It is not the power of the judge but of the court.

A. JURISDICTION OVER THE

PARTIES

D. JURISDICTION OVER THE RES OR

PROPERTY IN LITIGATION

The manner by which the court acquires jurisdiction

over the parties depends on whether the party is
the plaintiff or the defendant and is a matter of
procedural law
E. JURISDICTION OF COURTS

5

The following modes of acquisition of jurisdiction
apply to BOTH ordinary and special civil actions like
mandamus or unlawful detainer cases:
1. HOW JURISDICTION OVER THE
PLAINTIFF IS ACQUIRED:
Jurisdiction over the plaintiff is acquired by his filing
of the complaint or petition, even through his counsel.
2. HOW JURISDICTION OVER THE
DEFENDANT IS ACQUIRED
Jurisdiction over the defendant is obtained either by a
valid service of summons upon him or by his
voluntary submission to the court’s authority. It is
required only in an action in personam.
Submission to the court’s jurisdiction takes the form
of an appearance that seeks affirmative relief except
when the relief sought is for the purpose of objecting
to the jurisdiction of the court over the person of the
defendant.
Lack of jurisdiction over the defendant may be raised
as a ground for a motion to dismiss.
If a motion has been filed and objection to the lack of
jurisdiction, which ground was already available at
the time of filing, was not pleaded, it is DEEMED
WAIVED pursuant to the omnibus motion rule.
However when it appears from the pleadings or the
evidence on record that the court has no jurisdiction
over the subject matter, that there is another action
pending between the same parties for the same
cause, or that the action is barred by a prior judgment
or by stature of limitations, the COURT SHALL
DISMISS THE CLAIM.
If no motion to dismiss has been filed at all, the
objection of lack of jurisdiction over the person may
be pleaded as an affirmative defense in the
defendant’s answer.
B. JURISDICTION OVER THE
SUBJECT MATTER
The item with respect to which the controversy has
arisen, or concerning which the wrong has been
done, and it is ordinarily the right, the thing, or the
contract under dispute.
1. MEANING OF JURISDICTION OVER
THE SUBJECT MATTER:
It is the power to deal with the general subject
involved in the action. It refers to jurisdiction of the
class of cases to which the particular case belongs.
2. JURISDICTION vs. EXERCISE OF
JURISDICTION
JURISDICTION is the power or authority of the court
EXERCISE OF JURISDICTION refers to the exercise
of this power or authority.
Jurisdiction is the authority to decide a case and not
the decision rendered therein. (Republic of the
Philippines v. Asset Privatization Trust, G.R. No.
141241, 2005)
Where there is jurisdiction over the subject matter,
the decision on all other questions arising in the case
is but an exercise of jurisdiction. (Republic of the
Philippines v. Asset Privatization Trust, G.R. No.
141241, 2005)
3. ERROR OF JURISDICTION AS
DISTINGUISHED FROM ERROR OF
JUDGMENT
ERROR OF JUDGMENT
One which the court may commit in the exercise of
its jurisdiction.
As long as the court acts within its jurisdiction, any
alleged errors committed in the exercise of its
discretion will amount to nothing more than mere
errors of judgment which are correctible by appeal.
(Cabrera v. Lapid, G.R. No. 129098, 2006); these
errors include errors of procedure or mistakes in the
court’s findings. (Banco Filipino Savings and
Mortgage Bank v. Court of Appeals, G.R. No.
132703, 2000)
ERROR OF JURISDICTION
On the other hand, an error of jurisdiction is one
where the act complained of was issued by the court
without or in excess of jurisdiction. (Cabrera v. Lapid,
G.R. No. 129098, 2006)
It may happen either when a court exercises a
jurisdiction not conferred upon it by law or when the
court, although with jurisdiction, acts in excess of its
jurisdiction or with grave abuse of discretion
6
amounting to lack of jurisdiction. (GSIS v. Olisa, G.R.
No. 126874, 1999)
Errors of jurisdiction are correctible only by the
extraordinary writ of certiorari. (Tolentino v. Leviste,
G.R. No. 156118, 2004)
4. HOW JURISDICTION IS CONFERRED
AND DETERMINED
How Jurisdiction is conferred
Jurisdiction over the subject matter is conferred by
law which may either be the Constitution or a statute.
The law that confers such jurisdiction refers to a
substantive law, not a procedural law.
Such Jurisdiction CANNOT be conferred by the
Following:
1. Administrative policy of any court;
2. A court’s unilateral assumption of jurisdiction;
3. An erroneous belief by the court that it has
jurisdiction; and
4. The parties by agreement, silence, acquiescence
or consent.
How Jurisdiction is Determined
Jurisdiction over the subject matter is determined by
the allegations of the complaint. It is not determined
either by the defenses of by the pieces of evidence
presented in the trial.
Jurisdiction is based on the allegations in the
initiatory pleading and the defenses in the answer are
deemed irrelevant and immaterial in its
determination. De la Cruz v. Court of Appeals, [G.R.
No. 139442, December 6, 2006]
Thus, if by the averments of the complaint, the court
has jurisdiction, it does not lose that jurisdiction just
because the defendant makes a contrary allegation
in his motion or answer or because the court believes
that the plaintiff’s claims are ridiculous and therefore,
untrue. [Tomas Claudio Memorial College, Inc., v.
Court of Appeals, G.R. No. 124262, 1999]
5. DOCTRINE OF PRIMARY
JURISDICTION
Under this doctrine, courts will not resolve a
controversy involving a question which is within the
jurisdiction of an administrative tribunal, especially
where the question demands the exercise of sound
administrative discretion requiring the special
knowledge, experience and services of the
administrative tribunal to determine technical and
intricate matters of fact. (Paloma v. Mora, G.R. No.
157783, 2005)
The doctrine of primary jurisdiction precludes the
courts from resolving a controversy over which
jurisdiction has initially been lodged in an
administrative body of special competence.
(See also Sta. Ana v. Carpo, GR No. 164340, 2008)
The practice is to refer specialized disputes to
administrative agencies of specialized competence
and the courts will not determine a controversy prior
to the resolution of the question by the administrative
tribunal. (Fabia v. Court of Appeals, G.R. No.
132684, 2002)
6. DOCTRINE OF ADHERENCE OF
JURISDICTION (CONTINUITY OF
JURISDICTION)
Once jurisdiction has attached, it cannot be ousted
by subsequent happenings or events, although of a
character which would have prevented jurisdiction
from attaching in the first instance; the court, once
jurisdiction has been acquired, retains that
jurisdiction until it finally disposes of the case.
(Baritua v. Mercader, G.R. No. 136048, 2001)
7. OBJECTIONS TO JURISDICTION
OVER SUBJECT MATTER
The earliest opportunity of a party to raise the issue
of jurisdiction is in a motion to dismiss filed before
the filing or service of an answer. Failure to raise
such objection shall NOT be deemed as a waiver.
Unlike lack of jurisdiction over the person, failure to
include the defense of lack of jurisdiction over the
subject matter in a motion to dismiss, when such
ground was already available at the time of filing,
does NOT bar the defendant to subsequently raise it
as an affirmative defense.
7
If no motion to dismiss has been filed, such defense
may be raised as an affirmative defense in the
answer.
Thus, the prevailing rule is that jurisdiction over the
subject matter may be raised at ANY stage of the
proceedings, even for the first time on appeal.
(Calimlim v. Ramirez, G.R. No. L-34362, 1982)
dismiss based on lack of jurisdiction would render the
effort, time and expenses of the parties for naught.
(Bernardo v. Heirs of Villegas, G.R. No. 183357,
2010)
C. JURISDICTION OVER THE
ISSUES

Furthermore, courts may take cognizance of the

issue even if not raised by the parties themselves.
(Asia International Auctioneers, Inc. v. Parayno, G.R.
No. 163445, 2007)

When the court dismisses the complaint based on

such ground, its only authority is to dismiss the
complaint and not to refer or forward the case to
another court with the proper jurisdiction.

8. EFFECTS OF ESTOPPEL ON
OBJECTIONS TO JURISDICTION The power of the court to try and decide the issues
raised in the pleadings of the parties.
While it is true that jurisdiction over the subject matter
may be raised at any stage of the proceedings, it is
nevertheless settled that a party may be barred from
raising it on the ground of estoppel.

The doctrine of estoppel by laches in relation to

objections to jurisdiction first appeared in the
landmark case of (Tijam v. Sibonghanoy, G.R. No. L-
21450, 1968)

The fact pattern common among cases wherein the

Court invoked estoppel to prevent a party from
questioning jurisdiction is a party’s active
participation in all stages of a case which is
tantamount to recognition of court’s jurisdiction.
The general rule as it has always been, is that the
issue of jurisdiction may be raised at any stage of the
proceedings, even on appeal, and is not lost by
waiver or by estoppel. Estoppel by laches, to bar a
litigant from asserting the court’s absence or lack of
jurisdiction, only supervenes in exceptional cases
similar to the factual milieu of Tijam v. Sibonghanoy.
The fact that a person attempts to invoke
unauthorized jurisdiction of a court does not estop
him from thereafter challenging its jurisdiction over
the subject matter, since such jurisdiction must arise
by law and not by mere consent of the parties.
(Figueroa v. People, GR No. 147406, 2008)
Courts are not only courts of law but also of equity.
Thus, where the respondent did not vigorously
question the jurisdiction of the court and instead
actively participated for ten years, a motion to
An ISSUE is a disputed point or question to which
parties to an action have narrowed down their
several allegations and upon which they are desirous
of obtaining a decision.
With respect to an issue raised by the pleadings, an
issue arises because the material allegations of a
claiming party are specifically denied by the
defending party.
How conferred and determined:
General Rule: It is conferred and determined by the
pleadings of the parties that present the issues to be
tried and determine whether or not the issues are of
fact or of law. Whether or not a court has jurisdiction
over a specific issue is a question that requires
nothing but an examination of the pleadings.
Exceptions:
It may be conferred:

8
1. By stipulation of the parties - as when in the
pre-trial, the parties enter into stipulations of facts
and documents or enter into an agreement
simplifying the issues of the case.
2. By waiver or failure to object to the
presentation of evidence on a matter not raised
in the pleadings; the parties try with the other
party’s express or implied consent issues not
raised by the pleadings; such issues shall be
treated in all respects as if they had been raised
in the pleadings.

D. JURISDICTION OVER THE RES

OR PROPERTY IN LITIGATION

Jurisdiction over the res or property in litigation is

acquired either by seizure of the property under legal
process or as a result of the institution of legal
proceedings, in which the power of the court is
recognized and made effective.

In civil actions, particularly actions in rem or quasi in

rem, jurisdiction over the res and the subject matter
is sufficient to vest jurisdiction in the court even in the
absence of jurisdiction over the person of the
defendant.

9
 E. JURISDICTION OF COURTS

NOTE: The Jurisdiction tables below are taken from Feria †, Justice Jose Y. and Atty. Maria Concepcion S.
Noche. Civil Procedure Annotated. Vol. 1. 2013 Ed. Quezon City: Central Book Supply, Inc., 2013. 665-
700.

1. SUPREME COURT (Feria and Noche, pp.665-668)

SUPREME COURT

I. ORIGINAL JURISDICTION

A. Original and Exclusive

Petitions for the issuance of writs of certiorari, prohibition and mandamus against:

1. Court of Appeals.
2. Commission on Elections.
3. Commission on Audit.
4. Sandiganbayan.
5. Court of Tax Appeals.
B. Original and Concurrent

1. With the CA 1. Petitions for the issuance of writs of certiorari, prohibition and mandamus against:

a. NLRC. [However, the petitions should be filed with the CA; otherwise, they shall be
dismissed.]
b. CSC.
c. Quasi-Judicial Agencies. [However, the petitions should be filed with the CA.]
d. RTC and lower courts.

2. Petitions for the issuance of a writ of kalikasan.

2. With the 1. Petition for writ of amparo.

CA, SB and 2. Petition for writ of habeas data.
RTC

3. With the CA 1. Petitions for habeas corpus and quo warranto.

and RTC 2. Petitions for the issuance of writs of certiorari, prohibition and mandamus against lower
courts or bodies.
3. Petitions for the issuance of writ of continuing mandamus in environmental cases.
4. With the Actions affecting ambassadors, other public ministers and consuls.
RTC

II. APPELLATE JURISDICTION

1. Appeal by From the RTC or the SB in all criminal cases in which the penalty imposed is reclusion
Notice of perpetua or higher, and those involving other offenses which, although not so punished,
Appeal arose out of the same occurrence or which may have been committed by the accused on
the same occasion, as that giving rise to the more serious offense, regardless of whether
the accused are charged principals, accomplices or accessories, or whether they have
been tried jointly or separately.

By appeal, the SC reviews the questions of law and of fact decided by the court a quo.

2. Appeal by Appeals from the:

Petition for 1. Court of Appeals
Review on 2. Sandiganbayan - on pure questions of law, except in cases where the penalty
Certiorari imposed is reclusion perpetua, life imprisonment or death
3. Court of Tax Appeals.
4. Regional Trial Courts - exercising original jurisdiction in the following cases:

a. If no question of fact is involved and the cases involves:

(i) Constitutionality or validity of any treaty, international or executive

 agreement, law, presidential decree, proclamation, order,
instruction, ordinance or regulation in question;
(ii) Legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto; or
(iii) Jurisdiction of lower courts is in issue.

(Note: If, in addition to constitutional, tax, or jurisdictional questions, the cases

mentioned in (i), (ii) and (iii) above also involve questions of fact or mixed
questions of fact and law, the aggrieved party shall appeal to the CA; and the final
judgment or decision of the latter may be reviewed, revised, reversed, modified or
affirmed by the SC on writ of certiorari)

b. All cases in which only errors of questions of law are involved.

3. Special Decision, order or ruling of:

Civil Action 1. Commission on Elections.
of 2. Commission on Audit.
Certiorari
within 30
days

2. COURT OF APPEALS (Feria and Noche, pp. 669-672)

 COURT OF APPEALS

I. ORIGINAL JURISDICTION

A. Original and Exclusive

Actions for annulment of judgments of the RTC on the grounds of extrinsic fraud and lack of jurisdiction.

B. Original and Concurrent

1. With the SC 1. Petitions for the issuance of writs of certiorari, prohibition and mandamus against:
 a. NLRC. [However, the petitions should be filed with the CA; otherwise, they shall
be dismissed.]
b. CSC.
c. Quasi-Judicial Agencies. [However, the petitions should be filed with the CA.]
d. RTC and lower courts.

2. Petitions for the issuance of a writ of kalikasan.

2. With the SC, 1. Petition for writ of amparo.

SB, and RTC 2. Petition for writ of habeas data.

3. With the SC 1. Petitions for habeas corpus and quo warranto.

and RTC 2. Petitions for the issuance of writs of certiorari, prohibition and mandamus
against lower courts or bodies.
3. Petitions for the issuance of writ of continuing mandamus in environmental
cases.

II. APPELLATE JURISDICTION

Exclusive Appellate
1. Ordinary Appeal Appeals from:
by Notice of 1. RTC in the exercise of its original jurisdiction, except in all cases where
Appeal or Record only questions of law are raised or involved, which are appealable to the
on Appeal SC by petition for review on certiorari in accordance with Rule 45.
2. RTC on constitutional and jurisdictional questions which involve questions
of fact.
3. Family Courts.

2. Appeal by Petition An appeal may be taken to the CA whether the appeal involves questions of fact,
for Review mixed questions of fact and law, or questions of law, in the following cases:

Regular
1. Appeals from RTC in the exercise of its appellate jurisdiction.
Special
1. Appeals from CSC.
2. Appeals from Quasi-Judicial Agencies:

a. Securities and Exchange Commission

b. Office of the President
c. Land Registration Authority
d. Social Security Commission
e. Civil and Aeronautics Board
f. Intellectual Property Office
g. National Electrification Administration
h. Energy Regulatory Commission
i. National Telecommunications Commission
j. Department of Agrarian Reform under RA 6657
k. Government Service Insurance System
l. Employees’ Compensation Commission
m. Insurance Commission
n. Philippine Atomic Energy Commission
o. Board of Investments
p. Construction Industry Arbitration Commission
q. Voluntary Arbitrators authorized by law
r. Ombudsman, in administrative disciplinary cases
 s. National Commission on Indigenous Peoples

From the judgments or final orders or resolutions of the CA, the aggrieved party may
appeal by certiorari to the SC as provided in Rule 45.

Judgments and final orders of the CTA en banc are now appealable to the SC
through a petition for review under Rule 45, pursuant to RA 9282.

3. SANDIGANBAYAN

SANDIGANBAYAN
(as amended by Section 4, R.A. 10660, promulgated April 16, 2015)

A. EXCLUSIVE ORIGINAL
1. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, otherwise known as An Act Declaring Forfeiture in favor of the State
any Property Found to have been Unlawfully Acquired by any Public Officer or Employee and Providing for
the Proceedings therefor, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where
one or more of the accused are officials occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the commission of the offense:

a. Officials of the executive branch occupying the positions of regional director and higher, otherwise
classified as Grade ’27’ and higher, of the Compensation and Position Classification Act of 1989
(Republic Act No. 6758), specifically including:

i. Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial

treasurers, assessors, engineers, and other provincial department heads:
ii. City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors,
engineers, and other city department heads;
iii. Officials of the diplomatic service occupying the position of consul and higher;
iv. Philippine army and air force colonels, naval captains, and all officers of higher rank;
v. Officers of the Philippine National Police while occupying the position of provincial director and
those holding the rank of senior superintendent and higher;
vi. City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of
the Ombudsman and special prosecutor;
vii. Presidents, directors or trustees, or managers of government-owned or controlled corporations,
state universities or educational institutions or foundations.

b. Members of Congress and officials thereof classified as Grade ’27’ and higher under the
Compensation and Position Classification Act of 1989;
c. Members of the judiciary without prejudice to the provisions of the Constitution;
d. Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of the
Constitution; and
e. All other national and local officials classified as Grade ’27’ and higher under the Compensation and
Position Classification Act of 1989.

Note: In case private individuals are charged as co-principals, accomplices or accessories with the public
officers or employees, including those employed in government-owned or controlled corporations, they
shall be tried jointly with said public officers and employees in the proper courts which shall exercise
exclusive jurisdiction over them.
 Note: In cases where none of the accused are occupying positions corresponding to Salary Grade ’27’ or
higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above,
exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial
court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended.

2. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials
and employees mentioned in subsection a. of this section in relation to their office.

3. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986.

Note: Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the
corresponding civil action for the recovery of civil liability shall at all times be simultaneously instituted with, and
jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the
criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the
filing of such civil action separately from the criminal action shall be recognized. 

Note: Where the civil action had heretofore been filed separately but judgment therein has not yet been
rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil
action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for
consolidation and joint determination with the criminal action, otherwise the separate civil action shall be
deemed abandoned.
4. Petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and
other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature,
including quo warranto, arising or that may arise in cases filed or which may be filed under Executive
Order Nos. 1, 2, 14 and 14-A, issued in 1986.

Note: That the jurisdiction over these petitions shall not be exclusive of the Supreme Court.

B. EXCLUSIVE APPELLATE

The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of
Regional Trial Courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as
provided in R.A. 10660.

Note: The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the
Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the
Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases
elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the
Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed
pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

4. COURT OF TAX APPEALS (Feria and Noche, pp.676-680)

COURT OF TAX APPEALS

A. EXCLUSIVE APPELLATE JURISDICTION: By APPEAL

1. Decisions from the COMMISSIONER OF INTERNAL REVENUE

- in cases involving disputed assessments, refunds of internal revenue taxes, fees or other
charges, penalties in relation thereto, or other matters arising under the National Internal
Revenue Code (NIRC) or other laws administered by the Bureau of Internal Revenue (BIR).

2. Inaction by the COMMISSIONER INTERNAL REVENUE

- in cases involving disputed assessments, refunds of internal revenue taxes, fees or other
charges, penalties in relation thereto, or other matters arising under the NIRC or other laws
administered by the BIR, where the NIRC provides a specific period of action, in which case the
inaction shall be deemed a denial.

3. Decisions, orders or resolutions of REGIONAL TRIAL COURTS

- in local tax cases originally decided or resolved by them in the exercise of their original and
appellate jurisdiction.
4. Decisions of the COMMISSIONER OF CUSTOMS

- in cases involving liability for custom duties, fees or other money charges, seizure, detention or
release of property affected, fines, forfeitures or other penalties in relation thereto, or other
matters arising under the Customs Law or other laws administered by the Bureau of Customs.

5. Decisions of the CENTRAL BOARD OF ASSESSMENT APPEALS in the exercise of its appellate
jurisdiction

- over cases involving the assessment and taxation of real property originally decided by the
provincial or city board of assessment appeals.

6. Decisions of the SECRETARY OF FINANCE

- on customs cases elevated to him/her automatically for review from decisions of the
Commissioner of Customs which are adverse to the Government under Section 2315 of the Tariff
and Customs Code.

7. Decisions of the SECRETARY OF TRADE AND INDUSTRY

 - in the case of non-agricultural product, commodity or article; and
Decisions of the SECRETARY OF AGRICULTURE
- in the case of agricultural product, commodity or article involving dumping and countervailing
duties under Sections 301 and 302, respectively, of the Tariff and Customs Code and safeguard
measures under the RA 8800, where either party may appeal the decision to impose or not to
impose said duties.

B. CRIMINAL CASES

1. Exclusive Original Criminal cases arising from violations of the:

Jurisdiction

1. National Internal Revenue Code.

2. Tariff and Customs Code.
3. Other laws administered by the BIR or the Bureau of Customs.

Provided, however, that offenses or felonies mentioned in this paragraph where the
principal amount of taxes and fees, exclusive of charges and penalties, claimed in
less than P1M or where there is no specified amount claimed shall be tried by the
regular courts and the jurisdiction of the CTA shall be appellate.

Any provision of law or the Rules of Court to the contrary notwithstanding, the
criminal action and the corresponding civil action for the recovery of civil liability for
taxes and penalties shall be at all times be simultaneously instituted with, and jointly
determined in the same proceeding by the CTA, the filing of the criminal action
being deemed to necessarily carry with it the filing of the civil action, and no right to
reserve the filing of such civil action separately from the criminal action will be
recognized.
2. Exclusive 1. Over appeals from the judgments, resolutions or orders of the RTC in tax
Appellate cases originally decided by them, in their respective territorial jurisdiction.
Jurisdiction 2. Over petitions for review of the judgments, resolutions or orders of the RTC in
the exercise of their appellate jurisdiction over tax cases originally decided the
MeTC, MTC and MCTC in their respective jurisdiction.

3. TAX COLLECTION CASES

1. Exclusive Original Cases involving final and executory assessment for taxes, fees, charges and
Jurisdiction penalties: Provided, however, that collection cases where the principal amount of
taxes and fees, exclusive of charges and penalties, claimed is less than P1M shall
be tried by the proper MTC, MeTC and RTC.

2. Exclusive In tax collection cases:

Appellate
Jurisdiction

1. Over appeals from the judgments, resolutions or orders of the RTC in tax
collection cases originally decided by them, in their respective territorial
jurisdiction.
2. Over petitions for review of judgments, resolutions or orders of the RTC in
the exercise of their appellate jurisdiction over tax collection cases originally
decided the MeTC, MTC and MCTC in their respective jurisdiction.

5. REGIONAL TRIAL COURTS (Feria and Noche, pp. 680-684)

IMPORTANT:

REGIONAL TRIAL COURTS

I. ORIGINAL JURISDICTION

A. Original and Exclusive

1. CIVIL Cases 1. Civil actions in which the subject of litigation is incapable of pecuniary estimation
3. Civil actions which involve the title to, or possession of, REAL property, or any
interest therein, where the assessed value of the property involved exceeds P20K,
or P50K if in Metro Manila, except actions forcible entry and unlawful detainer
which are cognizable by the MeTC, MTC, MCTC.
3. Actions in admiralty and maritime jurisdiction where the demand or claim exceeds
P300K, or P400K if in Metro Manila.
4. Matters of probate, both testate and intestate, where the gross value of the estate
exceeds P300K, or P400K if in Metro Manila.
5. Cases not within the exclusive jurisdiction of any court, tribunal, person or body
exercising judicial or quasi-judicial functions.
6. Actions involving the contract of marriage and marital relations.
7. Civil actions and special proceedings falling within the exclusive original jurisdiction
of a Juvenile and Domestic Relations Court and of the Special Agrarian Courts as
now provided by law.
8. Other cases in which the demand, exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs or the value of the property in
controversy, exceeds P300K, or P400K if in Metro Manila.
 IMPORTANT: If the claim for damages is the main cause of action, the amount
thereof shall be considered in determining the jurisdiction of the court.

2. CRIMINAL Criminal cases not within the exclusive jurisdiction of any court, tribunal or body, such
Cases as the following:

1. Penalty provided by law exceeds 6 years imprisonment, irrespective of fine.

2. Under (a) above not falling under the original jurisdiction of the Sandiganbayan
where none of the principal accused are occupying positions corresponding to
salary grade “27” or higher, or military and PNP officers occupying the rank of
superintendent or higher, or their equivalent.
3. Only penalty provided by law is a fine exceeding P4K.
4. Violations of the:

a. Comprehensive Dangerous Drugs Act of 2002.

b. Anti-Violence against Women and their Children Act of 2004 (specifically,
those involving violence against women and children as defined under
Section 5).
c. Comprehensive Agrarian Reform Law.
d. Omnibus Election Code.

N.B.: Family Courts have exclusive original jurisdiction over criminal cases where one
or more of the accused is below 18 years old, or when one or more of the victims is a
minor at the time of the commission of the offense.
3. OTHER Cases 1. Actions for recognition and enforcement of an arbitration agreement or for
vacation, setting aside, correction or modification of an arbitral award, and any
application with a court for arbitration assistance and supervision.
2. Actions for determination of just compensation to land under the CARL.
3. R.A. 10660 (promulgated April 16, 2015):

The REGIONAL TRIAL COURT shall have exclusive original jurisdiction where the
information involving civil and criminal cases filed pursuant to and in connection
with Executive Order Nos. 1, 2, 14 and 14-A (1986):
a. Does not allege any damage to the government or any bribery; or
b. Alleges damage to the government or bribery arising from the same or closely
related transactions or acts in an amount not exceeding One million pesos
(P1,000,000.00).

Note: Subject to the rules promulgated by the Supreme Court, the cases falling
under the jurisdiction of the Regional Trial Court under Section 4 of R.A. 10660
shall be tried in a judicial region other than where the official holds office.

B. Original and Concurrent

1. With the SC Actions affecting ambassadors and other public ministers and consuls.
2. With the SC 1. Issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas
and CA corpus, and injunction which may be enforced in any part of their respective
regions.
2. Petition for the issuance of writ of continuing mandamus in environmental cases.

3. With the SC, 1. Petition for writ of amparo.

CA and SB 2. Petition for writ of habeas data.

4. With the Claims not exceeding P100K. This is applicable if subject of the action is incapable of
Insurance pecuniary estimation; otherwise, jurisdiction is concurrent with the MeTC.
Commissioner

II. APPELLATE JURISDICTION

Cases decided by the MeTC, MTC, MTCC and MCTC in their respective territorial Jurisdiction.

III. SPECIAL JURISDICTION

The SC may designate certain branches of the RTC to handle exclusively criminal cases, juvenile and
domestic relations cases, agrarian cases, urban land reform cases which do not fall under the jurisdiction of
quasi-judicial bodies and agencies, and/or such other special cases as the SC may determine in the interest of
a speedy and efficient administration of justice.

6. FAMILY COURTS (Feria and Noche, pp. 690-692)

FAMILY COURTS

ORIGINAL AND EXCLUSIVE JURISDICTION

1. Criminal cases where one or more of the accused is 15≤x<18 years old, or where one or more of the
victims is a minor at the time of the commission of the offense: provided, that if the minor is found
guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may
have incurred. The sentence, however, shall be suspended without need of application pursuant to
the Child and Youth Welfare Code (PD 603).
2. Petitions for guardianship, custody of children, habeas corpus in relation to the latter.
3. Petitions for adoption of children and revocation thereof.
4. Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital
status and property relations of husband and wife or those living together under different status and
agreements, and petitions for dissolution of conjugal partnership or gains
5. Petitions for support and/or acknowledgment.
6. Summary judicial proceedings brought under the provisions of the Family Code of the Philippines
(E.O No. 209).
7. Petitions for declaration of status of children as abandoned, dependent or neglected children; petitions
for voluntary or involuntary commitment of children; the suspension, termination, or restoration of
parental authority and other cases cognizable under the Child and Youth Welfare Code (PD 603),
Authorizing the Ministry of Social Services and Development to Take Protective Custody of Child
Prostitutes and Sexually Exploited Children, and for Other Purposes (E.O. 56), and other related
laws.
8. Petitions for constitution of the family home.
9. Cases against minors cognizable under the Comprehensive Dangerous Drugs Act of 2005.
10. Violations of Special Protection of Children against Child Abuse, Exploitation and Discrimination Act
(RA 7610), as amended by RA 7658 and RA 9231.
11. Cases of domestic violence against:

a. Women – which are acts of gender-based violence that results, or are likely to result in
physical, sexual or psychological harm or suffering to women; and other forms of physical
abuse such as battering or threats and coercion which violate a woman’s personhood,
integrity and freedom of movement; and
b. Children – which include the commission of all forms of abuse, neglect, cruelty, exploitation,
violence, and discrimination and all other conditions prejudicial to their development

If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings
and the corresponding penalties.
 If any question involving any of the above matters should arise as an incident in any case pending in
the regular courts, said incident shall be determined in that court.

7. MUNICIPAL TRIAL COURTS – MeTC, MTC and MCTC (Feria and Noche, pp.685-689)

MUNICIPAL TRIAL COURTS

I. ORIGINAL JURISDICTION

2. Original and Exclusive

1. CIVIL cases 1. Civil actions and probate proceedings, testate and intestate, including the grant
of provisional remedies in proper cases, where the value of the personal
property, estate or amount of demand does NOT exceed P300K, or P400K if in
Metro Manila, exclusive of interest, damages of whatever kind, attorney’s fees,
litigation expenses, and costs, the amount of which must be specifically alleged.
However, interest, damages of whatever kind, attorney’s fees, litigation
expenses, and costs shall be included in the determination of the filing fees.
2. Admiralty and maritime cases where the demand or claim does NOT exceed
P300K, or P400K if in Metro Manila.

Where there are several claims or causes of action between the same or
different parties, embodied in the same complaint, the amount of the demand
shall be the totality of the claims in all the causes of action irrespective of
whether the causes of action arose out of the same or different transactions.

3. Forcible entry and unlawful detainer, with jurisdiction to determine the issue of
ownership only to resolve the issue of possession.
4. Civil actions which involve title to, or possession of, REAL property, or any
interest therein where the assessed value of the property or interest therein
does NOT exceed P20K, or P50K if in Metro Manila, exclusive of interest,
damages of whatever kind, attorney’s fees, litigation expenses, and costs. In
cases of land not declared for taxation purposes, the value of such property
shall be determined by the assessed value of the adjacent lots.
5. Inclusion and exclusion of voters.

2. CRIMINAL cases EXCEPT in cases falling within the exclusive original jurisdiction of the RTC or SB—
1. Violations of city or municipal ordinances committed within their respective
territorial jurisdiction.
2. Offenses punishable with imprisonment NOT exceeding 6 years irrespective of
the amount of fine, and regardless of other imposable accessory or other
penalties, including the civil liability arising from such offenses or predicated
thereon, irrespective of kind, nature, value or amount thereof.
3. Offenses under (2) above include those NOT falling within the exclusive original
jurisdiction of the SB where none of the accused is occupying positions
corresponding to salary grade “27” or higher.
4. Offenses involving damage to property through criminal negligence.
 5. In cases where the only penalty provided by law is a fine of not more than P4K.

II. DELEGATED JURISDICTION

Cadastral or land registration cases covering lots where there is no controversy or opposition, or contested lots
where the value of which does NOT exceed P100K, such value to be ascertained by the affidavit of the
claimant or by agreement of the respective claimants if there are more than one, or from the corresponding tax
declaration of the real property.

III. SPECIAL JURISDICTION

In the absence of all the RTC Judges in a province of city—

1. Hear and decide petitions for writ of habeas corpus.

2. Hear and decide applications for bail in criminal cases.

IV. SUMMARY PROCEDURE

1. CIVIL cases 1. Forcible entry and unlawful detainer, irrespective of the amount of damages or
unpaid rentals sought to be recovered.
2. All other cases, except probate proceedings, where the total amount of the
plaintiff's claim does not exceed one hundred thousand pesos (P100,000) or two
hundred thousand pesos (P200,000) in Metropolitan Manila, exclusive of
interest and costs. (A.M. No. 02-11-09-SC)

2. CRIMINAL cases 1. Traffic violations.

2. Rental law violations.
3. Violations of city or municipal ordinances.
4. Violations of B.P. 22 (Bouncing Checks Law).
5. All other cases where penalty does NOT exceed 6 months and/or fine of P1K.

8. THE COURTS OF MUSLIM MINDANAO

1. THE SHARI’AH APPELLATE COURT (Feria and Noche, p. 697)

THE SHARI’AH APPELLATE COURT

 I. ORIGINAL JURISDICTION

Petitions for certiorari, prohibition, mandamus, habeas corpus, and other auxiliary writs and processes only in
aid of its appellate jurisdiction

II. APPELLATE JURISDICTION

All cases tried in the Shari’ah District Courts as established by law

2. THE SHARI’AH DISTRICT COURT (Feria and Noche, pp. 698-699)

 THE SHARI’AH DISTRICT COURT

I. ORIGINAL JURISDICTION

1. Original and 1. All cases involving the custody, guardianship, legitimacy, paternity and filiation
Exclusive arising under the Code of Muslim Personal Laws of the Philippines (PD
1083).
2. All cases involving the disposition, distribution and settlement of the estate of
deceased Muslims, probate of wills, issuance of letters of administration or
appointment of administrators or executors, regardless of the nature or the
aggregate value of the property.
3. Petitions for the declaration of absence and death and for the cancellation or
correction of entries in the Muslim Registries mentioned in Title VI of Book 2
of PD 1083.
4. All actions arising from customary contracts in which the parties are Muslims,
if they have not specified which law shall govern their relations.
5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus,
and all other auxiliary writs and processes in aid of its appellate jurisdiction.

2. Original and 1. Petitions by Muslims for the constitution of a family home, change of name
Concurrent with and commitment of an insane person to an asylum.
Civil Courts 2. All other personal and real actions NOT mentioned in paragraph 1(4)
above wherein the parties involved are Muslims except those for forcible
entry and unlawful detainer, which shall fall under the exclusive original
jurisdiction of the MTC.
3. All special civil actions for interpleader or declaratory relief wherein the
parties are Muslims or the property involved belongs exclusively to
Muslims.
 II. APPELLATE JURISDICTION

Over all cases tried in the Shari’ah Circuit Courts within their territorial jurisdiction.

3. THE SHARI’AH CIRCUIT COURTS (Feria and Noche, pp. 699-700)

THE SHARI’AH CIRCUIT COURTS

ORIGINAL and EXCLUSIVE JURISDICTION

1. All cases involving offenses denied and punished under the Code of Muslim Personal Laws of the
Philippines (PD 1083).
2. All civil actions and proceedings between parties who are Muslims or have been married in accordance
with Article 13 of PD 1083 involving disputes relating to:

a. Marriage;
b. Divorce under PD 1083;
c. Betrothal or breach of contract to marry;
d. Customary dower (marh);
e. Disposition and distribution of property upon divorce;
f. Maintenance and support, and consolatory gifts (mut’a); and
g. Restitution of marital rights.

3. All cases involving disputes relative to communal properties.

4. THE TRIBAL COURTS (Feria and Noche, p. 700)

 THE TRIBAL COURTS

1. Determine, settle and decide controversies and enforce decisions involving personal, family and property
rights in accordance with the tribal codes of the tribal communities.
2. Exercise exclusive jurisdiction over crimes committed by members of indigenous cultural communities
where the imposable penalty as prescribed by RPC or other pertinent laws does NOT exceed
imprisonment of 6 years or a fine NOT exceeding P50K or both such imprisonment and fine and where the
offended party or parties are also members of the indigenous cultural community concerned.
F. JURISDICTION OVER SMALL
CLAIMS, CASES COVERED BY
THE RULES ON SUMMARY
PROCEDURE AND BARANGAY
CONCILIATION
SMALL CLAIMS
Actions before the Metropolitan Trial Courts,
Municipal Trial Courts in Cities, Municipal Trial
Courts and Municipal Circuit Trial Courts for
payment of money where the value of the claim
does not exceed One Hundred Thousand Pesos
(P100,000.00), exclusive of interest and costs.
Cases Covered:
1. Purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment or
reimbursement of sum of money; and
2. The civil aspect of criminal actions, either filed
before the institution of the criminal action, or
reserved upon the filing of the criminal action in
court. (Rule 111 of the Revised Rules of
Criminal Procedure)
Claims or Demands Covered:
1. For money owed under any of the following:
b) Quasi-contract; or
c) Contract.
3. The enforcement of a barangay amicable
settlement or an arbitration award involving a
money claim covered by the Rule
KATARUNGANG PAMBARANGAY
(A.C. No. 14-93)
General Rule:
ALL disputes between individuals/natural persons
are subject to Barangay conciliation pursuant to the
Revised Katarungang Pambarangay Law and prior
recourse thereto is a pre-condition before filing a
complaint in court or any government offices is
allowed.
There must have been confrontation between the
parties before the lupon chairman or pangkat and a
showing that there was no settlement reached or
that it was repudiated by the parties before a
complaint, petition, action or proceeding may be
filed or instituted in court or in a government office
for adjudication.

Exceptions:
1. Where one party is the government, or any
subdivision or instrumentality thereof;
2. Where one party is a public officer or employee
a) Contract of Lease; and the dispute relates to the performance of his
b) Contract of Loan; official functions;
c) Contract of Services; 3. Where the dispute involves real properties
d) Contract of Sale; or located in different cities and municipalities,
e) Contract of Mortgage. unless the parties thereto agree to submit their
difference to amicable settlement by an
appropriate Lupon;
4. Any complaint by or against corporations,
partnerships or juridical entities, since only
individuals shall be parties to Barangay
conciliation proceedings either as complainants
2. For damages arising from any of the following: or respondents [Sec. 1, Rule VI, Katarungang
Pambarangay Rules];
5. Disputes involving parties who actually reside in
barangays of different cities or municipalities,
except where such barangay units adjoin each
other and the parties thereto agree to submit

a) Fault or negligence;

40
 their differences to amicable settlement by an
appropriate Lupon;
6. Offenses for which the law prescribes a
maximum penalty of imprisonment exceeding
one [1] year or a fine of over P5, 000.00;
7. Offenses where there is no private offended
party;
8. Disputes where urgent legal action is necessary
to prevent injustice from being committed or
further continued, specifically the following:
a) Criminal cases where accused is under
police custody or detention [Sec. 412 (b) (1),
Revised Katarungang Pambarangay Law];
b) Petitions for habeas corpus by a person
illegally deprived of his rightful custody over
another or a person illegally deprived of or on
acting in his behalf;
c) Actions coupled with provisional remedies
such as preliminary injunction, attachment,
delivery of personal property and support
during the pendency of the action;
d) Actions which may be barred by the Statute
of Limitations.      agree in writing to have the matter in dispute
9. Any class of disputes, which the President may
determine in the interest of justice or upon the
recommendation of the Secretary of Justice;
10. Where the dispute arises from the
Comprehensive Agrarian Reform Law (Secs.
46 & 47, R. A. 6657);
11. Labor disputes or controversies arising from
employer-employee relations (Montoya v.
Escayo, et al., G.R. No. 82211-12, 1989); (Art.
226, Labor Code)
12. Actions to annul judgment upon a compromise
that may be filed directly in court (Sanchez v.
Tupaz, G.R. No. 76690, 1988)
A case filed in court WITHOUT compliance with
prior Barangay conciliation, which is a pre-condition
for formal adjudication, may be dismissed upon
motion of defendant/s on the ground of failure to
comply with a condition precedent. The non-referral
of a case for barangay conciliation is not
jurisdictional in nature, thus it necessitates a motion
to dismiss before it may be considered by the Court.
A prior recourse to Barangay conciliation is a pre-
condition before filing a complaint in court or any
government offices.  Non-compliance with the said
condition precedent could affect the sufficiency of
the plaintiff’s cause of action and make his
complaint vulnerable to dismissal on ground of lack
of cause of action or prematurity; but the same
would not prevent a court of competent jurisdiction
from exercising its power of adjudication over the
case before it, where the defendants failed to object
to such exercise of jurisdiction. (Sps. Santos v. Sps.
Lumbao, G.R. No. 169129, 2007)
Interruption of Prescriptive Period:
While the dispute under mediation, conciliation, or
arbitration, the prescriptive periods for offenses and
cause of action under existing laws shall be
interrupted upon filing of the complaint with the
Punong Barangay.
Agreement to Arbitrate:
The parties may, at any stage of the proceedings,
decided by arbitration by the Lupon Chairman or
Pangkat.
RULE ON SUMMARY PROCEDURE
The rule shall govern the summary procedure in the
Metropolitan Trial Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts, and the Municipal
Circuit Trial Courts in cases falling within their
jurisdiction.
Cases Covered:
1. Civil Cases
a) All cases of forcible entry and unlawful
detainer, irrespective of the amount of
damages or unpaid rentals sough to be
recovered. Where attorney’s fees are
41
 awarded, the same shall not exceed twenty
thousand pesos (P20,000)
b) All other cases, except probate
proceedings, where the total amount of the
plaintiff's claim does not exceed one hundred
thousand pesos (P100,000) or two hundred
thousand pesos (P200,000) in Metropolitan
Manila, exclusive of interest and costs. (A.M.
No. 02-11-09-SC)
2. Criminal Cases
a) Violations of traffic laws, rules and
regulations;
b) Violations of the rental law;
c) Violations of municipal or city ordinances;
d) Violations of B.P. 22 (Bouncing Checks Law)
e) All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding six (6) months,
or a fine not exceeding (P1,000), or both,
irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability
arising therefrom; Provided, however, that in
offenses involving damage to property
through criminal negligence, this Rule shall
govern where the imposable fine does not
exceed ten thousand pesos (P10,000).
Exception:
The Rule on Summary Proceedings shall not apply
to a civil case where the plaintiff’s cause of action is
pleaded in the same complaint with another cause
of action subject to the ordinary procedure.
Nor is it applicable to a criminal case where the
offense charged is necessarily related to another
criminal case subject to the ordinary procedure.
Prohibited Pleadings:
1. Motion to dismiss the complaint or to quash the
complaint or information except on the ground
of a) lack of jurisdiction over the subject matter,
or b) failure to comply with the preceding
section;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of
judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third party complaints; and
12. Interventions.
Appeal:
The judgment or final order shall be appealable to
the appropriate Regional Trial Court.
The decision of the Regional Trial Court in civil
cases governed by this Rule, including forcible entry
and unlawful detainer, shall be immediately
executory, without prejudice to further appeal that
may be taken therefrom.
Execution Pending Appeal
On motion of the prevailing party with notice to the
adverse party filed in the trial court while it has
jurisdiction over the case and is in possession of
either the original record or the record on appeal, as
the case may be, at the time of the filing of such
motion, said court may, in its discretion, order
execution of a judgment or final order even before
the expiration of the period to appeal. After the trial
court has lost jurisdiction the motion for execution
pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good
reasons to be stated in a special order after due
hearing. (Rule 39, Section 2)
42

G. TOTALITY RULE
Under this rule, where there are several claims or
causes of action between the same or different
parties, embodied in the same complaint, the
amount of the demands shall be the totality of the
claims in all the causes of action, irrespective of
whether the causes of action arose out of the same
or different transactions.
Concepts in jurisdiction –
Hierarchy of courts
Petitions for the issuance of a writ of certiorari
against the acts or issuances of a court, tribunal or
any government agency should be filed with the
Regional Trial Court. The jurisdiction of the RTC
over petitions for certiorari is concurrent with the
Supreme Court.
However, such concurrence does not allow
unrestricted freedom of choice of the court forum. A
direct invocation of the Supreme Court’s original
jurisdiction to issue this writ should be allowed only
when there are special and important reasons,
clearly and specifically set out in the petition.(First
United v. Poro Point, GR No. 178799, 2009)
SC power to discipline judiciary employees
The CSC has administrative jurisdiction over the
civil service. However, the Constitution provides
that the Supreme Court is given exclusive
administrative supervision over all courts and
judicial personnel. By virtue of this power, it is only
the Supreme Court that can oversee the judges’
and court personnel’s compliance with all laws,
rules and regulations. No other branch of
government may intrude into this power, without
running afoul of the doctrine of separation of
powers.
Administrative jurisdiction over a court employee
belongs to the Supreme Court, regardless of
whether the offense was committed before or after
employment in the judiciary.(Sarah Ampong v. CSC
GR No. 167916, 26 August 2008)
Intra-corporate case
Not every allegation of fraud done in a corporate
setting or perpetrated by corporate officers will bring
the case within the special commercial court’s
jurisdiction. There must be sufficient nexus showing
that the corporation’s nature, structure, or powers
were used to facilitate the fraudulent device or
scheme.
In cases governed by the Interim Rules of
Procedure on Intra-Corporate Controversies, a bill
of particulars is a prohibited pleading. It is essential
for the complaint to show on its face what are
claimed to be the fraudulent corporate acts if the
complainant wishes to invoke the court’s special
commercial jurisdiction. (Oscar Reyes v. RTC
Makati, GR No. 265744, 2008)
Basis for determining jurisdiction for real actions
With the modifications introduced by R.A. No. 7691
in 1994, the jurisdiction of the first level courts has
been expanded to include jurisdiction over other
real actions where the assessed value does not
exceed P20,000, P50,000 where the action is filed
in Metro Manila. The first level courts thus have
exclusive original jurisdiction over accion publiciana
and accion reivindicatoria where the assessed
value of the real property does not exceed the
aforestated amounts. Accordingly, the jurisdictional
element is the assessed value of the property.
(Barrera v. Legaspo, GR No. 174346, 2008 )
Referral to Lupon when appropriate
The barangay justice system is accomplished
through a proceeding before the barangay courts
which is essentially arbitration in character; and to
make it truly effective, it should also be compulsory.
It would be wholly in keeping with the underlying
philosophy of Presidential Decree No. 1508
(Katarungang Pambarangay Law), if an out-of-court
settlement of the case is reached voluntarily by the
parties. To ensure this objective, Section 6 of
Presidential Decree No. 1508 requires the parties to
undergo a conciliation process before the Lupon
Chairman or the Pangkat ng Tagapagkasundo as a
precondition to filing a complaint in court subject to
43
certain exceptions. The said section has been
declared compulsory in nature. (Wee v. De Castro,
GR No. 176405, 2008 )

Referral to Lupon NOT jurisdictional

It is true that the precise technical effect of failure to
comply with the requirement of Section 412 of the
Local Government Code on barangay conciliation is
much the same effect produced by non-exhaustion
of administrative remedies—the complaint becomes
afflicted with the vice of pre-maturity; and the
controversy there alleged is not ripe for judicial
determination. Nevertheless, the conciliation
process is not a jurisdictional requirement, so that
non-compliance therewith cannot affect the
jurisdiction which the court has otherwise acquired
over the subject matter or over the person of the
defendant.
(Aquino v. Aure, GR No. 253567, 2008)

END OF TOPIC

44
 B. CAUSE OF ACTION

1. Meaning of cause of action

CIVIL PROCEDURE 2. Right of action versus cause of
action
3. Failure to state a cause of
action
4. Test of the sufficiency of a
cause of action
5. Splitting a single cause of
action and its effects
6. Joinder and misjoinder of
causes of action

A. ACTIONS

1. Meaning of ordinary civil

actions
2. Meaning of special civil actions
3. Meaning of criminal actions C. PARTIES TO CIVIL ACTIONS
4. Civil actions versus special
proceedings
5. Personal actions and real
actions
6. Local and transitory actions
7. Actions in rem, in personam 1. Real parties in interest;
and quasi in rem indispensable parties;
8. Independent Civil Actions Representatives as parties;
necessary parties; indigent
parties; alternative defendants
2. Compulsory and permissive
joinder of parties
3. Misjoinder and non-joinder of
parties
4. Class suit

45
 5. Suits against entities without 1. Kinds of pleadings
juridical personality
6. Effect of death of party litigant

a. Complaint
b. Answer

i. Negative defenses
ii. Negative pregnant
D. VENUE iii. Affirmative defenses

1. Venue versus jurisdiction c. Counterclaims

2. Venue of real actions
3. Venue of personal actions
4. Venue of actions against non-
residents
5. When the rules on venue do not
apply i. Compulsory
6. Effects of stipulations on venue counterclaim
ii. Permissive
counterclaim
iii. Effect on the
counterclaim when the
complaint is dismissed

d. Cross-claims
e. Third (fourth, etc.) party
E. PLEADINGS complaints
f. Complaint-in-intervention
g. Reply

46
2. Pleadings allowed in small i. Condition precedent
claim cases and cases ii. Fraud, mistake, malice,
intent, knowledge and
covered by the Rules on other condition of the
Summary Procedure mind, judgments,
3. Parts of a pleading official documents or
acts

a. Caption
b. Signature and address b. Pleading an actionable
document
c. Verification and certification
against forum shopping c. Specific denials

i. Requirements of a i. Effect of failure to

corporation executing make specific denials
the ii. When a specific denial
verification/certificatio requires an oath
n of non-forum
shopping

5. Effect of failure to plead

d. Effect of the signature of

counsel in a pleading

a. Failure to plead defenses and

objections
b. Failure to plead a compulsory
4. Allegations in a pleading counterclaim and cross-claim

a. Manner of making allegations 6. Default

47
 a. When a declaration of default 8. Amendment
is proper
b. Effect of an order of default
c. Relief from an order of default
d. Effect of a partial default
e. Extent of relief
f. Actions where default are not a. Amendment as a matter of
allowed right
b. Amendments by leave of court
c. Formal amendment
d. Amendments to conform to or
authorize presentation of
evidence
7. Filing and service of pleadings e. Different from supplemental
pleadings
f. Effect of amended pleading

a. Payment of docket fees

b. Filing versus service of
pleadings
c. Periods of filing of pleadings
d. Manner of filing
e. Modes of service

F. SUMMONS

i. Personal service
ii. Service by mail
iii. Substituted service
iv. Service of judgments,
final orders or 1. Nature and purpose of
resolutions summons in relation to
v. Priorities in modes of actions in personam, in rem
service and filing and quasi in rem
vi. When service is
deemed complete
2. Voluntary appearance
vii. Proof of filing and 3. Personal service
service 4. Substituted service
5. Constructive service (by
publication)

48
 a. Service upon a defendant
where his identity is
unknown or where his
whereabouts are
unknown
b. Service upon residents
temporarily outside the
Philippines
2. Motions for bill of particulars
6. Extra-territorial service, when
allowed
7. Service upon prisoners and
minors
8. Proof of service
3. Motion to dismiss
G. MOTIONS
1. Motions in general
a. Definition of a motion
b. Motions versus pleadings
c. Contents and form of motions
d. Notice of hearing and hearing
of motions
e. Omnibus motion rule
f. Litigated and ex parte motions
g. Pro-forma motions
a. Purpose and when applied for
b. Actions of the court
c. Compliance with the order and
effect of noncompliance
d. Effect on the period to file a
responsive pleading
a. Grounds
b. Resolution of motion
c. Remedies of plaintiff when the
complaint is dismissed
d. Remedies of the defendant
when the motion is denied
e. Effect of dismissal of
complaint on certain grounds
f. When grounds pleaded as
affirmative defenses
g. Bar by dismissal
49
 h. Distinguished from demurrer
to evidence under Rule 33
H. DISMISSAL OF ACTIONS
1. Concept of pre-trial
2. Nature and purpose
3. Notice of pre-trial
4. Appearance of parties; effect of
failure to appear
5. Pre-trial brief; effect of failure to
appear
6. Distinction between pre-trial in
civil case and pre-trial in
criminal case
7. Alternative Dispute Resolution
(ADR)

a. Special Rules of Court on ADR

(A.M. No. 07-11-08-SC)
1. Dismissal upon notice by
plaintiff; two-dismissal rule
2. Dismissal upon motion by
plaintiff; effect on existing
counterclaim
3. Dismissal due to the fault of
plaintiff
4. Dismissal of counterclaim,
cross-claim or third-party
complaint

J. INTERVENTION

1. Requisites for intervention

2. Time to intervene
3. Remedy for the denial of motion
to intervene
I. PRE-TRIAL

50

K. SUBPOENA
1. Subpoena duces tecum
2. Subpoena ad testificandum
3. Service of subpoena
4. Compelling attendance
witnesses; contempt
5. Quashing of subpoena
L. MODES OF DISCOVERY
1. Depositions pending action;
depositions before action or
pending appeal
a. Meaning of deposition
b. Uses; scope of examination
c. When may objections to
admissibility be made
d. When may taking of deposition
be terminated or its scope
limited
2. Written interrogatories to
adverse parties
of
a. Consequences of refusal to
answer
b. Effect of failure to serve
written interrogatories
3. Request for admission
a. Implied admission by adverse
party
b. Consequences of failure to
answer request for admission
c. Effect of admission
d. Effect of failure to file and
serve request for admission
51
 4. Production or inspection of 6. Delegation of reception of
documents or things evidence
5. Physical and mental 7. Trial by commissioners
examination of persons
6. Consequences of refusal to
comply with modes of
discovery

a. Reference by consent or
ordered on motion
b. Powers of the commissioner
c. Commissioner’s report; notice
to parties and hearing on the
report

M. TRIAL

1. Adjournments and N. DEMURRER TO EVIDENCE

postponements
2. Requisites of motion to
postpone trial

1. Ground
2. Effect of denial
3. Effect of grant
a. For absence of evidence 4. Waiver of right to present
b. For illness of party or counsel evidence
5. Demurrer to evidence in a civil
case versus demurrer to
evidence in a criminal case

3. Agreed statement of facts

4. Order of trial; reversal of order
5. Consolidation or severance of
hearing or trial

52
O. JUDGMENTS AND FINAL 1. Motion for new trial or
ORDERS reconsideration

1. Judgment without trial a. Grounds

2. Contents of a judgment b. When to file
3. Judgment on the pleadings c. Denial of the motion; effect
4. Summary judgments d. Grant of the motion; effect
e. Remedy when motion is
denied, fresh 15-day period
rule

a. For the claimant

b. For the defendant
c. When the case not fully
adjudicated
2. Appeals in general
d. Affidavits and attachments

a. Judgments and final orders

subject to appeal
5. Judgment on the pleadings
b. Matters not appealable
versus summary judgments
c. Remedy against judgments
6. Rendition of judgments and and orders which are not
final orders appealable
7. Entry of judgment and final d. Modes of appeal
order

i. Ordinary appeal
ii. Petition for review
iii. Petition for review on
certiorari

P. POST-JUDGMENT REMEDIES

53
 e. Issues to be raised on appeal a. Grounds for annulment
f. Period of appeal b. Period to file action
g. Perfection of appeal c. Effects of judgment of
h. Appeal from judgments or final annulment
orders of the MTC
i. Appeal from judgments or final
orders of the RTC
j. Appeal from judgments or final
orders of the CA
k. Appeal from judgments or final 5. Collateral attack of judgments
orders of the CTA
l. Review of final judgments or
final orders of the Comelec
m. Review of final judgments or
final orders of the
Ombudsman
n. Review of final judgments or
final orders of the NLRC
o. Review of final judgments or
final orders of quasi-judicial
agencies

Q. EXECUTION, SATISFACTION
AND EFFECT OF JUDGMENTS

3. Relief from judgments, orders

and other proceedings

1. Difference between finality of

judgment for purposes of
appeal; for purposes of
a. Grounds for availing of the execution
remedy 2. When execution shall issue
b. Time to file petition
c. Contents of petition

a. Execution as a matter of right

b. Discretionary execution
4. Annulment of judgments or final
orders and resolutions

54
3. How a judgment is executed 9. Effect of judgment or final
orders
10. Enforcement and effect of
foreign judgments or final
orders

a. Execution by motion or by
independent action
b. Issuance and contents of a writ
of execution
c. Execution of judgments for
money
d. Execution of judgments for
specific acts
e. Execution of special
judgments
f. Effect of levy on third persons
R. PROVISIONAL REMEDIES

4. Properties exempt from

execution 1. Nature of provisional remedies
5. Proceedings where property is 2. Jurisdiction over provisional
claimed by third persons remedies
3. Preliminary attachment

a. In relation to third party claim

in attachment and replevin a. Grounds for issuance of writ of
attachment
b. Requisites
c. Issuance and contents of order
of attachment; affidavit and
bond
6. Rules on redemption d. Rule on prior or
contemporaneous service of
7. Examination of judgment summons
obligor when judgment is e. Manner of attaching real and
unsatisfied personal property; when
8. Examination of obligor of property attached is claimed
judgment obligor by third person
f. Discharge of attachment and
the counter-bond

55
 g. Satisfaction of judgment out of
property attached
4. Preliminary injunction
a. Cases when receiver may be
appointed
b. Requisites
c. Requirements before issuance
of an order
d. General powers of a receiver
e. Two kinds of bonds
f. Termination of receivership

a. Definitions and differences: 6. Replevin

preliminary injunction and
temporary restraining order;
status quo ante order
b. Requisites
c. Kinds of injunction
d. When writ may be issued
a. When may writ be issued
e. Grounds for issuance of
b. Requisites
preliminary injunction
c. Affidavit and bond; redelivery
f. Grounds for objection to, or for
bond
the dissolution of injunction or
restraining order d. Sheriff’s duty in the
implementation of the writ;
g. Duration of TRO
when property is claimed by
h. In relation to R.A. 8975, ban on third party
issuance of TRO or writ of
injunction in cases involving
government infrastructure
projects
i. Rule on prior or
contemporaneous service of
summons in relation to
attachment

S. SPECIAL CIVIL ACTIONS

5. Receivership

1. Nature of special civil actions

56
2. Ordinary civil actions versus 6. Review of judgments and final
special civil actions orders or resolution of the
3. Jurisdiction and venue Comelec and COA
4. Interpleader

a. Application of Rule 65 under

a. Requisites for interpleader Rule 64
b. When to file b. Distinction in the application of
Rule 65 to judgments of the
Comelec and COA and the
application of Rule 65 to other
tribunals, persons and officers

5. Declaratory reliefs and similar

remedies

7. Certiorari, prohibition and

mandamus

a. Who may file the action

b. Requisites of action for
declaratory relief
c. When court may refuse to a. Definitions and distinctions
make judicial declaration
d. Conversion to ordinary action
e. Proceedings considered as
similar remedies

i. Certiorari
distinguished from
peal by certiorari
ii. Prohibition and
i. Reformation of an mandamus
instrument distinguished from
ii. Consolidation of injunction
ownership
iii. Quieting of title to real
property

b. Requisites

57
 c. When petition for certiorari, a. Matters to allege in complaint
prohibition and mandamus is for expropriation
proper b. Two stages in every action for
d. Injunctive relief expropriation
e. Exceptions to filing of motion c. When plaintiff can immediately
for reconsideration before enter into possession of the
filing petition real property, in relation to
f. Reliefs petitioner is entitled to R.A. 8974
g. Actions/omissions of MTC/RTC d. New system of immediate
in election cases payment of initial just
h. When and where to file petition compensation
i. Effects of filing of an
e. Defenses and objections
unmeritorious petition f. Order of expropriation
g. Ascertainment of just
compensation
h. Appointment of
commissioners;
commissioner’s report; court
action upon commissioner’s
8. Quo warranto report
i. Rights of plaintiff upon
judgment and payment
j. Effect of recording of judgment

a. Distinguish from quo warranto

in the omnibus election code
b. When government commence
an action against individuals 10. Foreclosure of real estate
c. When individual may mortgage
commence an action
d. Judgment in quo warranto
action
e. Rights of a person adjudged
entitled to public office

a. Judgment on foreclosure for

payment or sale
b. Sale of mortgaged property;
effect
c. Disposition of proceeds of sale
9. Expropriation d. Deficiency judgment

58
 i. Instances when court a. Definitions and distinction
cannot render b. Distinguished from accion
deficiency judgment
publiciana, accion
reivindicatoria and accion
interdictal
c. How to determine jurisdiction
in accion publiciana, accion
reivindicatoria and accion
interdictal
e. Judicial foreclosure versus
extrajudicial foreclosure d. Who may institute the action
and when; against whom the
f. Equity of redemption versus
action may be maintained
right of redemption
e. Pleadings allowed
f. Action on the complaint
g. When demand is necessary
h. Preliminary injunction and
preliminary mandatory
injunction
11. Partition i. Resolving defense of
ownership
j. How to stay the immediate
execution of judgment
k. Summary procedure,
prohibited pleadings
a. Who may file complaint; who
should be made defendants
b. Matters to allege in the
complaint for partition
c. Two stages in every action for
partition 13. Contempt
d. Order of partition and partition
by agreement
e. Partition by commissioners;
appointment of
commissioners,
commissioner’s report; court
action upon commissioner’s a. Kinds of contempt
report b. Purpose and nature of each
f. Judgment and its effects c. Remedy against direct
g. Partition of personal property contempt; penalty
h. Prescription of action d. Remedy against indirect
contempt; penalty
e. How contempt proceedings are
commenced
f. Acts deemed punishable as
indirect contempt
12. Forcible entry and unlawful g. When imprisonment shall be
imposed
detainer

59
 h. Contempt against quasi- 4. CIVIL ACTIONS VERSUS SPECIAL
judicial bodies PROCEEDINGS
5. PERSONAL ACTIONS AND REAL
ACTIONS
6. LOCAL AND TRANSITORY
ACTIONS
7. ACTIONS IN REM, IN PERSONAM
AND QUASI IN REM

1. MEANING OF ORDINARY CIVIL

ACTIONS

It is a formal demand of one’s legal rights in a court

of justice in a manner prescribed by the court for by
the law. It is governed by ordinary rules.

2. MEANING OF SPECIAL CIVIL

ACTIONS

A special civil action contains special features not

found in ordinary civil actions. It is also governed
by ordinary rules but subject to specific rules
prescribed (Rules 62-71).

3. MEANING OF CRIMINAL ACTIONS

A criminal action is one by which the State

prosecutes a person for an act or omission
punishable by law.

4. CIVIL ACTIONS VERSUS SPECIAL

PROCEEDINGS

A. ACTIONS A CIVIL ACTION is one by which a party sues

another for the enforcement or protection of a right,
or the prevention or redress of a wrong.
Proceedings are to be regarded as civil when the
purpose is primarily compensatory.

On the other hand, the purpose of a SPECIAL

1. MEANING OF ORDINARY CIVIL
ACTIONS
2. MEANING OF SPECIAL CIVIL
ACTIONS
3. MEANING OF CRIMINAL ACTIONS
PROCEEDING is to establish a status, a right or a
particular fact.
5. PERSONAL ACTIONS AND REAL
ACTIONS
REAL ACTION - when it affects title to or
possession of real property or an interest therein.

60

PERSONAL ACTION - on the other hand, when
personal property is sought to be recovered or
where damages for breach of contract are sought,
the action is personal.
While a real action is founded on privity of real
estate, a personal action is founded on privity of
contract.
6. LOCAL AND TRANSITORY
ACTIONS
The distinction between a real and personal action
is significant in determining the venue of an action.
A real action is LOCAL, i.e., its venue depends
upon the location of the property involved in the
litigation. It is filed in the court where the property
or any part thereof is situated. An example of such
action is recovery of real property.
A personal action is TRANSITORY, i.e., its venue
depends upon the residence of the plaintiff or the
defendant at the option of the plaintiff. An example
of such action is recovery of sum of money.
7. ACTIONS IN REM, IN PERSONAM
AND QUASI IN REM
The distinction is important to determine whether or
not jurisdiction over the person of the defendant is
required and consequently to determine the type of
summons to be employed.
a) In Rem
1. A proceeding to determine the state or condition
of a thing.
2. Directed against the thing itself.
3. Jurisdiction over the person of the defendant is
not required.
4. Judgment is binding on the whole world.
Examples: probate and cadastral proceedings.
b) In Personam
1. An action to impose a responsibility or liability
upon a person directly.
2. Directed against a particular person.
3. Jurisdiction over the person of the defendant is
required.
4. Judgment is binding only upon the parties
impleaded or their successors in interest.
Examples: actions for specific performance and
actions for breach of contract.
c) Quasi In Rem
1. It is a proceeding, the purpose of which is to
subject the interest of a named defendant over a
particular property to an obligation or lien
burdening it.
2. Directed against particular persons.
3. Jurisdiction over the person of the defendant is
not required as long as jurisdiction over the res
is acquired.
4. Judgment is binding upon the particular persons.
Examples: actions for partition and foreclosure of
real estate mortgages.
In what cases NOT applicable:
1. Election cases,
2. Land registration,
3. Cadastral,
4. Naturalization;
5. Insolvency proceedings; and
6. Cases not herein provided for, except by
analogy or in a suppletory character.
Commencement of action
An action commences upon filing of the complaint in
court. For additional defendants, the action is
commenced upon filing of the amended complaint.
To vest the court with jurisdiction over the subject
matter, however, the complaint should be filed AND
the docket fees should be paid. This is also
applicable to permissive counterclaims, pleadings
and third party claims. (Sun Insurance Office Ltd. v.
Asuncion GR No. 79937-38, 1989)
Note: The date of mailing is the date of
commencement of action in cases where the action
is commenced by registered mail.
Construction
These rules shall be liberally construed in order to
promote their objective of securing a just, speedy
and inexpensive disposition of every action and
proceeding.
The courts have the power to relax or suspend
technical or procedural rules or to except a case
from their operation when compelling reasons so
61
warrant or when the purpose of justice requires it;
what constitutes good and sufficient cause that
would merit suspension of the rules is discretionary
upon the courts. (Commissioner of Internal
Revenue v. Migrant Pagbilao Corporation, G.R. No.
159593, 2006)
The liberal interpretation and application of rules
apply only in proper cases of demonstrable merit
and under justifiable causes and circumstances.
The Court cannot be expected to be liberal or
indulgent when petitioner is without a valid
explanation for failure to submit a verification with
her appeal to the SEC en banc. (Rural Bank of
Seven Lakes v. Dan, G.R. No. 174109, 2008)
Procedural laws do not come within the legal
conception of a retroactive law, or the general rule
against the retroactive operation of statutes. (Makati
Ins. v. Reyes, G.R. No. 167403, 2008)
However, reglementary periods, rules on forum
shopping and rules on service of summons must be
followed strictly.
Exception to the exception: When justice so
warrants or upon showing that it would cause
injustice.
8. INDEPENDENT CIVIL ACTIONS
Definition
Independent civil actions refer to those provided for
in Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines.
Purpose: To make the court’s disposition of the
criminal case of no effect whatsoever on the
separate civil case.
Requisites
1. May be brought by the offended party;
2. Shall proceed independently of criminal action;
and
3. Shall require only a preponderance of
evidence. (Rule 111, Section 3)
Note: An offended party cannot recover damages
twice for the same act or omission charged in the
criminal action. (Rule 111, Section 3)
Recall
Article 32, Civil Code
General Rule
Violation, impediment or impairment of a person’s
rights and liberties by any public officer or
employee, or any private individual.
Exception
Not demandable from a judge unless his act or
omission constitutes a violation of the Penal Code
or other penal statute.
Note: The indemnity shall include moral damages.
Exemplary damages may also be adjudicated.
Article 33, Civil Code
Cases of defamation, fraud, and physical injuries a
civil action for damages, entirely separate and
distinct from the criminal action.
Article 34, Civil Code
When a member of a city or municipal police force
refuses or fails to render aid or protection to any
person in case of danger to life or property, such
peace officer shall be primarily liable for damages,
and the city or municipality shall be subsidiarily
responsible therefor.
Article 2176, Civil Code
Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter
(Quasi-Delicts).
62
END OF TOPIC
B. CAUSE OF ACTION
(Rule 2)
1. MEANING OF CAUSE OF ACTION
2. RIGHT OF ACTION VERSUS CAUSE
OF ACTION
3. FAILURE TO STATE A CAUSE OF
ACTION
4. TEST OF THE SUFFICIENCY OF A
CAUSE OF ACTION
5. SPLITTING A SINGLE CAUSE OF
ACTION AND ITS EFFECTS
6. JOINDER AND MISJOINDER OF
CAUSES OF ACTION
Basis of Ordinary Civil Actions
Every ordinary civil action must be based on a
cause of action.
1. MEANING OF CAUSE OF ACTION
CAUSE OF ACTION is the act or omission by
which a party violates the rights of another, the
elements of which are as follows:
1. Legal right of the plaintiff;
2. Correlative obligation of the defendant to respect
plaintiff’s right;
3. Act or omission of the defendant in violation of
plaintiff’s legal right.
Whether one is a party or not in a contract is not
determinative of the existence of a cause of action
—participation in a contract is not an element in
considering whether or not a complaint states a
cause of action because even a third party outside
the contract can have a cause of action against
either or both contracting parties. (Camarines Sur
IV Electric Cooperative, Inc. v. Aquino, G.R. No.
167691, 2008)
The phrase “financial and business difficulties”
in the complaint is a vague notion, ambiguous in
concept. With no “particular injury” alleged in the
complaint, there is no delict or wrongful act or
omission attributable to the petitioner that would
violate the primary rights of the respondent and
there is failure to state a cause of action. (Vinzons-
Chato v. Fortune, G.R. No. 141309, 2008)
63

2. RIGHT OF ACTION VERSUS
CAUSE OF ACTION
CAUSE OF ACTION
A delict or wrongful act or omission committed by
the defendant in violation of the primary rights of the
plaintiff.
RIGHT OF ACTION
A remedial right or right to relief granted by law to a
party to institute an action against a person who has
committed a delict or wrong against him/her; it is the
right of a person to bring and prosecute an action to
obtain a judgment, the elements of which are as
follows:
1. There must be a cause of action;
2. Compliance with all the conditions precedents;
and
3. Action must be instituted by the proper party.
While the “cause of action” is the reason for the
action (e.g. breach of contract), the “right of action”
is the remedy or means afforded or the consequent
relief (e.g., filing a civil action for recovery of
damages on the ground of breach of contract).
While a cause of action depends on substantive
law, the right of action is a matter of procedure (a
remedial right) and depends on the pleadings filed
by the parties.
Lastly, a cause of action is not affected by
affirmative defenses (fraud, prescription, estoppel
etc.). On the other hand, a right of action may be
lost or waived (e.g. through prescription if a
complaint is not filed within the prescriptive period.)
3. FAILURE TO STATE A CAUSE OF
ACTION
It refers to insufficiency in the allegations of the
complaint. To avoid dismissal, the cause of action
must unmistakably be stated or alleged in the
complaint or that all the elements of the cause of
action required by substantive law must clearly
appear from the mere reading of the complaint.
The curing effect under Section 5 is applicable only
if a cause of action in fact exists at the time the
complaint is filed, but the complaint is defective for
failure to allege the essential facts. For example, if a
complaint failed to allege the fulfillment of a
condition precedent upon which the cause of action
depends, evidence showing that such condition had
already been fulfilled when the complaint was filed
may be presented during the trial, and the complaint
may accordingly be amended thereafter. It thus
follows that a complaint whose cause of action has
not yet accrued cannot be cured or remedied by an
amended or supplemental pleading alleging the
existence or accrual of a cause of action while the
case is pending. Such an action is prematurely
brought and is, therefore, a groundless suit, which
should be dismissed by the court upon proper
motion seasonably filed by the defendant. The
underlying reason for this rule is that a person
should not be summoned before the public tribunals
to answer for complaints which are immature.
(Swagman v. Court of Appeals, G.R. No. 161135,
2005)
4. TEST OF SUFFICIENCY OF A
CAUSE OF ACTION
The test of the sufficiency of the facts alleged in the
complaint as constituting a cause of action is
whether or not admitting the facts alleged, the court
could render a valid verdict in accordance with the
prayer of the complaint.
If the allegations in the complaint furnish sufficient
basis by which the complaint can be maintained,
the same should not be dismissed regardless of the
defense that may be assessed by the defendants.
(Ceroferr Realty Corp. v. Court of Appeals, G.R. No.
139539, 2002)
Anticipatory Breach
As a general rule, a contract to do several things at
several times is divisible in its nature. This kind of
obligation authorizes successive actions and a
judgment recovered for a single breach does not
bar a suit for a subsequent breach. If the obligor
manifests an unqualified and positive refusal to
64
perform a contract, though the performance of the
same is not yet due, and the renunciation goes to
the whole contract, it may be treated as a complete
breach, which will entitle the injured party to bring
his action at once. In this case, the breach is
considered a total breach and there can only be one
action and the plaintiff must recover all his damages
therein (Blos- soms & Co. v. Manila Gas
Corporation, 55 Phil. 226,240-241)
One suit for a single cause of action
A party may not institute more than 1 suit for a
single cause of action
The true rule which determines whether a party has
only a single and entire cause of action, or has a
severable demand for which he may maintain
separate suits, is whether the entire amount arises
from one and the same act or contract or the
several parts arise from distinct and different acts or
contracts. (BPI Family v. Vda. De Coscolluela, G.R.
No. 167724, 2006)
5. SPLITTING A SINGLE CAUSE OF
ACTION AND ITS EFFECTS
Splitting a single cause of action is the act of
instituting two or more suits for the same cause of
action.
The pleader divides a single cause of action, claim
or demand into two or more parts, brings a suit for
one of such parts with the intent to reserve the rest
for another separate action. (Quadra v. Court of
Appeals, G.R. No. 147593, 2006)
It is to be noted that splitting a cause of action is
NOT allowed by the Rules of Court and such
prohibition applies not only to complaints but also to
counterclaims and cross-claims. (Mariscal v. Court
of Appeals, G.R. No. 123926, 1999)
If two or more suits are instituted for a single cause
of action, the filing of one or a judgment upon the
merits in any of one is available as a ground for
dismissal of others. The remedy then of the
defendant is to file a motion to dismiss.
Hence, if the first action is pending when the
second action is filed, the latter may be dismissed
based on LITIS PENDENTIA. On the other hand, if
a final judgment had been rendered in the first
action when the second action is filed, the latter
may be dismissed based on RES JUDICATA. Note
that it need not be the second action filed that
should be dismissed.
JOINDER AND MISJOINDER OF CAUSES OF
ACTION
A party may in one pleading assert, in the
alternative or otherwise, as many causes of action
as he may have against an opposing party, subject
to the following conditions:
(a) The party joining the causes of action shall
comply with the rules on joinder of parties;
(b) The joinder shall not include special civil actions
or actions governed by special rules;
(c) Where the causes of action are between the
same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the
Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and
the venue lies therein; and
(d) Where the claims in all the causes action are
principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.
(Rule 2, Section 5)
The assertion of as many causes of action as a
party may have against another in one pleading
alone. It is not compulsory, but merely permissive.
It is the process of uniting two or more demands or
rights of action in one action.
When there are two or more defendants, or one or
more plaintiffs, the causes of action against the
defendants can only be joined if there is compliance
with the rules on joinder of parties. (Flores v.
Mallare-Philipps, G.R. No. L-66620, 1986)
However, joinder does NOT include special civil
actions or those actions governed by special rules,
i.e., ejectment, REM foreclosure and partition.
And where the causes of action are between the
same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the
65
Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and C. PARTIES TO CIVIL ACTION
the venue lies therein (Section5(c), Rule 2. (Rule 3)
TOTALITY RULE
Note: Rule will only apply if ALL cases of action
are for recovery of money

When there are several claims or causes of actions

between the same or different parties, embodied in
the same complaint, the amount of the demand
shall be the totality of the claims in all causes of
action, irrespective of whether the causes of action
arose out of the same or different transaction.

The aggregate amount claimed shall be the test of

jurisdiction. (Section 5(c), Rules of Court)
1. REAL PARTIES IN INTEREST;
The Jurisdictional Amount Excludes:
INDISPENSABLE PARTIES;
1. Interest; REPRESENTATIVES AS PARTIES;
2. Damages of whatever kind; NECESSARY PARTIES; INDIGENT
3. Attorney’s fees; and PARTIES; ALTERNATIVE
4. Litigation expenses and costs. DEFENDANTS
Misjoinder of causes of action 2. COMPULSORY AND PERMISSIVE
When there is a misjoinder of causes of action, the JOINDER OF PARTIES
erroneously joined cause of action can be severed 3. MISJOINDER AND NON-JOINDER
and proceeded with separately upon motion by a OF PARTIES
party or upon the court’s own initiative.
4. CLASS SUIT
When after severance the case falls outside the 5. SUITS AGAINST ENTITIES
jurisdiction of the court, the case may be dismissed WITHOUT JURIDICAL
motu propio or on motion. PERSONALITY
Note that unlike splitting of cause of action, a
6. EFFECT OF DEATH OF PARTY
misjoinder is NOT a ground for the dismissal of an LITIGANT
action.

If no one objects to the misjoinder, it would be

tried and decided together with the other
causes of action.

END OF TOPIC
Who May Be Parties: (NJE)
Only the following may be parties to a civil action
1. Natural persons;
2. Juridical persons; and

66
3. Entities authorized by law.
PLAINTIFF
The JURIDICAL persons who may be parties to
a civil action:
1. The State and its political subdivisions;
2. Other corporations, institutions and entities for
public interest or purpose, created by law; and
3. Corporations, partnerships and associations for
private interest or purpose to which the law
DEFENDANT grants a juridical personality, separate and
distinct from that of each shareholder, partner or
member (Art. 44, Civil Code)

Entities authorized by law to be parties:

1. A corporation by estoppel;
2. A contract of partnership having a capital of
three thousand pesos or more but which fails to
Generally refers to the Does not only refer to comply with the registration requirements;
claiming party or more the original defending 3. Estate of a deceased person;
appropriately, the party. 4. A legitimate labor organization;
original claiming party, 5. The Roman Catholic Church; and
and is the one who files 6. A dissolved corporation for suits that occur
the complaint. within 3 years after its dissolution and suits in
connection with the settlement and closure of its
affairs (Riano 2014 p. 264)

Remedies when a party impleaded is not

authorized to be a party:
1. If PLAINTIFF- a motion to dismiss may be filed
on the round that the plaintiff has no legal
The term may refer to If a counterclaim is filed capacity to sue. (Sec. 1 [d], Rule 16, ROC)
the claiming party, the against the original 2. If DEFENDANT- the complaint may be
counter-claimant, the plaintiff, the latter dismissed on the ground of failure to state a
cross-claimant or the becomes a defendant cause of action. (Rule 16, Sec. 1[g],)
third-party plaintiff. and the former, a
plaintiff in the 1. REAL PARTIES IN INTEREST;
counterclaim. INDISPENSABLE PARTIES;
REPRESENTATIVES AS PARTIES;
NECESSARY PARTIES; INDIGENT
PARTIES; ALTERNATIVE
DEFENDANTS

It may also apply to a It may also pertain to a

defendant who files a defendant in a
counterclaim, a cross- counterclaim, the cross-
claim or a third party defendant, or the third-
complaint. (Rule 3, party defendant. (Rule
Section 1) 3, Section 1)

67
Real Party in Interest
One who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the
avails of the suit. (Rule 3, Section 2)
“Interest,” within the meaning of the rule, means
material interest, an interest in issue and to be
affected by the decree, as distinguished from mere
interest in the question involved, or a mere
incidental interest. (Republic v. Coalbrine
International Philippines, Inc., G.R. No. 161838,
2010)
His interest must be real which is a present
substantial interest as distinguished from a mere
expectancy or a future, contingent subordinate or
consequential interest (Rayo v. Metrobank, G.R.
No. 165142, 2007)
[We find] no merit to petitioners contention that they
are not real parties-in-interest since they are not
parties nor signatories to the contract and hence
should not have been impleaded as defendants. It
is undeniable that petitioner Chan is an heir of
Ramon Chan and, together with petitioner Co, was
a successor-in-interest to the restaurant business of
the late Ramon Chan. Both continued to operate
the business after the death of Ramon. Thus, they
are real parties-in-interest in the case filed by
private respondent, notwithstanding that they are
not signatories to the Contract of Lease. (Sui Man
Hui Chan v. Court of Appeals, G.R. No. 147999,
2004)
Every action must be prosecuted and defended in
the name of the real party-in-interest.
The purposes of the requirement for the real party
in interest prosecuting or defending an action at law
are:
(a) To prevent the prosecution of actions by
persons without any right, title or interest in the
case;
(b) To require that the actual party entitled to legal
relief be the one to prosecute the action;
(c) To avoid a multiplicity of suits; and
(d) To discourage litigation and keep it within
certain bounds, pursuant to sound public
policy. (Stronghold Insurance Company, Inc. v.
Cuenca, G.R. No. 173297, 2013)
General Rule: Only parties to a contract may sue.
Exceptions:
1. A beneficiary of a stipulation pour autrui may
demand fulfillment of the contract. (Art. 1311,
Civil Code)
2. Those who are not principally or subsidiarily
obligated in a contract ma show the detriment
that could result from it i.e., when contracts
entered into in fraud of creditors may be
rescinded when the creditors cannot collect the
claims due them. (Art. 1318, Civil Code)
The attorney in fact of the principal plaintiff filed the
complaint in his residence. An attorney in fact is not
a real party in interest. Hence, his residence is
immaterial. A real party in interest is the party who,
by the substantive law has the right sought to be
enforced. Nowhere in Rule 3, Sec. 3 is it stated or
implied that the representative is likewise deemed
as the real party in interest. The Rule simply states
that in actions which are allowed to be prosecuted
or defended by a representative, the beneficiary
shall be deemed the real party in interest and
hence, should be included in the title of the case.
(Ang v. Ang, 22 August 2012, 678 SCRA 699.)
Indispensable Party
A real party-in-interest without whom NO final
determination can be had of an action. They are
those with such an interest in the controversy that a
final adjudication cannot be made, in his absence,
without injuring or affecting that interest. (Rule 3,
Section 7)
Without the presence of this party the judgment of a
court cannot attain real finality. (Servicewide
Specialists, Inc. v. Court of Appeals, G.R. No.
110048, 1999)
Absence of an indispensable party renders all
subsequent actions of the court null and void for
want of authority to act, not only as to the absent
parties but even as those present. (MWSS v. Court
of Appeals, G.R. No. 126000, 1998)
When an indispensable party is not before the
court, the action should be dismissed. However,
outright dismissal is not the immediate remedy for
failure to implead an indispensable party; parties
may be dropped or added at any stage upon motion
of any party or on court’s own initiative; only when
the order of the court to implead an indispensable
party goes unheeded may the case be dismissed.
(Riano, 2014, p. 279)
In an action for the cancellation of memorandum
annotated at the back of a certificate of title, the
persons considered as indispensable include those
68
whose liens appear as annotations pursuant to
Section 108 of Presidential Decree (PD) No. 1529.
The reason behind the compulsory joinder of
indispensable parties is the complete determination
of all possible issues, not only between the parties
themselves but also as regards other persons who
may be affected by the judgment. (Crisologo v.
JEWM Agro 3 March 2014, 717 SCRA 644)
NOTE: While the general rule is that joinder of
parties is permissive, it becomes compulsory when
the one involved is an indispensable party.
Necessary Party
A necessary party is not an indispensable party. He
is ought to be joined as a party if COMPLETE relief
is to be accorded as to those already parties; he
should be joined whenever possible.
The non-inclusion of a necessary party does NOT
prevent the court from proceeding in the action, and
the judgment rendered therein shall be without
prejudice to the rights of such necessary party.
(Agro Conglomerates, Inc. v. CA, G.R. No. 117660,
2000)
Distinction between an Indispensable and a Where the obligation of the parties is solidary, either
Necessary Party
Indispensable Party Necessary Party
Must be joined under any Should be joined
and all conditions whenever possible
No final decree can be A final decree can be
had in case of absence had despite absence
(Riano, 2014, p. 281)
Duty of a Pleader When a Necessary Party is
NOT Joined:
1. Set forth the name of the said necessary party, if
known; and
2. State the reason why the necessary party is
omitted (Rule 3, Section 9)
NOTE: If the reason given for the non-joinder of the
necessary party is found by the court to be
unmeritorious, it may order the pleader to join the
omitted party if jurisdiction over his person may be
obtained. Failure to comply with such order without
justifiable cause shall be deemed a waiver of the
claim against such party. (Rule 3, Section 9)
of the parties is indispensable, and the other is not
even a necessary party because complete relief is
available from either. (Cerezo v. Tuazon, G.R. No.
141538, 2004)
Representatives as Parties
Even where the action is allowed to be prosecuted
or defended by a representative party or someone
acting in a fiduciary capacity, the beneficiary shall
be included in the title of the case and shall be
deemed to be the real party in interest (Rule 3,
Section 3)
NOTE: Impleading the beneficiary as a party is
mandatory
Indigent Party
A party may be authorized to litigate as an indigent
if the court is satisfied that the party is one who has
no money or property sufficient and available for
food, shelter and basic necessities.
The application and the hearing to litigate as an
indigent litigant may be made ex parte.
If one is authorized to litigate as an indigent, such
authority shall include an exemption from the
69
payment of docket fees, and of transcripts of
stenographic notes, which the court may order to be
furnished by him
However, the amount of the docket and other lawful
fees, which the indigent was exempt from paying,
shall be lien on the judgment rendered in the case
favorable to the indigent
A lien on the judgment shall not arise if the court
provides otherwise. (Rule 3, Section 21)
When an application to litigate as an indigent litigant
is filed, the court shall determine if the applicant
complies with the income and property standards
prescribed in the present Section 19 of Rule 141—
that is, the applicant’s gross income and that of the
applicant’s immediate family do not exceed an
amount double the monthly minimum wage of an
employee; and the applicant does not own real
property with a fair market value of more than Three
Hundred Thousand Pesos (PhP 300,000.00).
If the trial court finds that the applicant meets the
income and property requirements, the authority to
litigate as indigent litigant is automatically granted
and the grant is a matter of right. However, if the
trial court finds that one or both requirements have
not been met, then it would set a hearing to enable
the applicant to prove that the applicant has “no
money or property sufficient and available for food,
shelter and basic necessities for himself and his
family.” (Spouses Algura v. LGU, GR No. 150135,
2006)
Alternative Defendant
Where the plaintiff cannot definitely identify who
among two or more persons should be impleaded
as a defendant, he may join all of them as
defendants in the alternative, although a right to
relief against one may be inconsistent with a right of
relief against the other. (Rule 3, Section 13)
Spouses as Parties
Husband and wife shall sue or be sued jointly
except when the litigation pertains to the exclusive
property of a spouse or when there is
abandonment.
Minors or Incompetents as Parties
A suit may be brought by OR against a minor or
incompetent but with the assistance of his parents
or his guardian. (Rule 3, Section 4)
2. COMPULSORY AND PERMISSIVE
JOINDER OF PARTIES
General Rule: Joinder of parties is not compulsory,
but merely permissive.
Exception: When it refers to joinder of
indispensable parties. (Rule 3, Section 7)
Requisites for Joinder of Parties:
1. The right to relief should arise out of the SAME
transaction or series of transactions; and
2. That there exists a common question of law or
fact.
NOTE: Same transaction means that it pertains to
transactions connected with the same subject
matter of the suit.
NOTE: The plaintiff is mandated to implead all the
indispensable parties, considering that the absence
of one such party renders all subsequent actions of
the court null and void for want of authority to act,
not only as to the absent parties, but even as to
those present. (Riano, 2014, p. 278)
3. MISJOINDER AND NON-JOINDER
OF PARTIES
A party is MISJOINED when he is made a party to
the action although he should not be impleaded.
A party is NOT JOINED when he is supposed to be
joined but is not impleaded in the action.
Neither of the two is a ground for the dismissal of an
action, as parties may be dropped or added by
order of the court or on motion of any party OR on
its own initiative at any stage of the action and on
such terms as are just.
In contract, in misjoinder of cause of action, the
court can order severance. There is no rule on
consolidation. (Rule 3, Section 11)
NOTE: However, the failure to obey the order of the
court to drop or add a party is a ground for the
dismissal of the complaint, because it is a
disobedience to the order of a court.
4. CLASS SUIT
70
A class suit is an action where one or more may
sue for the benefit of all if the requisites for said
action are complied with.
An action does not become a class suit merely
because it is designated as such in the pleadings; it
depends upon the attendant facts. (Banda v.
Ermita, 618 SCRA 488)
Requisites of a Class Suit:
1. Subject matter of the controversy of common or
general interest to many persons;
2. Persons are so numerous that it is
impracticable to join all as parties;
3. The parties actually before the court are
sufficiently numerous and representative; and
4. The representatives sue or defend for the
benefit of all.
COMMON INTEREST – as a requisite for a class
suit to prosper, common interest in the subject
matter (e.g. money, land, chattel) of the litigation is
required. It does not pertain to the delict or wrong
committed by the defendant.
5. SUITS AGAINST ENTITIES
WITHOUT JURIDICAL
PERSONALITY
When two or more persons not organized as an
entity with juridical personality enter into a
transaction, they may be sued under the name by
which they are generally or commonly known.
Under the same provision, the responsive pleading
of the entity sued must disclose the names and
addresses of its members since they are the
persons ultimately liable to the plaintiff. (Rule 3,
Section 15)
NOTE: These entities may be a defendant but not a
plaintiff as the provision states “may be sued.”
An unlicensed foreign corporation doing business in
the Philippines cannot sue before Philippine
courts. On the other hand, an unlicensed foreign
corporation not doing business in the Philippines
can sue before Philippine courts. (Van Zuiden v.
GTVL, G.R. No. 147905, 2007)
6. EFFECT OF DEATH OF PARTY
LITIGANT
The death of the client extinguishes the attorney-
client relationship and divests a counsel of his
authority to represent the client; neither does he
become the counsel of the heirs of the deceased
unless said heirs engage his services.
Whenever a party to a pending action dies, and the
claim is not thereby extinguished, it shall be the
duty of his counsel to inform the court within thirty
(30) days after such death of the fact thereof, and to
give the name and address of his legal
representative or representatives. Failure of counsel
to comply with this duty shall be a ground for
disciplinary action. The heirs of the deceased may
be allowed to 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.( Rule 3, Section 16)
The purpose behind this rule is the protection of the
right to due process of every party to the litigation
who may be affected by the intervening death. The
deceased litigant is herself or himself protected as
he/she continues to be properly represented in the
suit through the duly appointed legal representative
of his estate.
The rule on substitution in case of death of a party
is governed by Section 16, Rule 3 of the 1997 Rules
of Civil Procedure, as amended, which provides:
Section 16. Death of a party; duty of counsel.—
Whenever a party to a pending action dies, and the
claim is not thereby extinguished, it shall be the
duty of his counsel to inform the court within thirty
(30) days after such death of the fact thereof, and to
give the name and address of his legal
representative or representatives. Failure of counsel
to comply with this duty shall be a ground for
disciplinary action. The heirs of the deceased may
be allowed to be substituted for the deceased,
without requiring the appointment of an executor or
71
administrator and the court may appoint a guardian
ad litem for the minor heirs. (Sumaljag v. Literato,
GR No. 149787, 2008
Duty of the Counsel upon Death of His Client
Whenever a party to a pending action dies, it is the
duty of the counsel of the deceased party to inform
the court of such fact within 30 days after such
death.
Counsel also has the obligation to give the name
and address of the legal representative of the
deceased.
can sue before Philippine courts. (Van Zuiden v.
GTVL, G.R. No. 147905, 2007)
It Is Possible That the Court May Order the
Opposing Party to Procure the Appointment of
an Executor or Administrator for the Estate of
the Deceased When:
1. The counsel for the deceased does not name a
legal representative; or
2. There is a representative named but he fails to
appear within the specified period. (Rule 3,
Section 16)

Such duty is MANDATORY and failure to comply is

a ground for disciplinary action

Actions of the Court upon Notice of Death

Upon receipt of the notice of death, the court shall
determine whether or not the claim is extinguished All court charges in procuring such appointment, if
by such death. defrayed by the opposing party may be recovered
as costs. (Rule 3, Section 17)
Examples of claims NOT extinguished by death
are: END OF TOPIC
1. Recovery of real and personal property against
the estate;
2. Enforcement of liens on such properties; and
3. Recovery for an injury to person or property by
reason of tort or delict committed by the
deceased. (Riano, 2014, p. 289)

If the deceased left an heir and the claim is not

extinguished by death, the heir may be allowed to
be substituted for the deceased without need for an
appointment of an administrator or executor. D. VENUE
Service of summons is NOT necessary to effect
such substitution as the court shall order such legal
representative to appear and be substituted for the
deceased within thirty (30) days from notice.

Substitution of the deceased by his representative

or heir is effected by the order of substitution and its
service, and not by the amendment of the pleading
1. VENUE VERSUS JURISDICTION
Where the deceased has no heirs, the court shall 2. VENUE OF REAL ACTIONS
require the appointment of an executor or
administrator; if the heir is a minor, a guardian ad 3. VENUE OF PERSONAL ACTIONS
litem. (Rule 3, Section 16) 4. VENUE OF ACTIONS AGAINST
NON-RESIDENTS
An unlicensed foreign corporation doing business in 5. WHEN THE RULES ON VENUE DO
the Philippines cannot sue before Philippine
NOT APPLY
courts. On the other hand, an unlicensed foreign
corporation not doing business in the Philippines

72
6. EFFECTS OF STIPULATIONS ON A matter of procedural A matter of
VENUE law substantive law

1. VENUE VERSUS JURISDICTION

VENUE is the place, or the geographical area

where an action is to be filed and tried. (Manila
Railroad Company v. Attorney General, G.R. No. L-
7688, 1912) Establishes a relation Establishes a relation
between plaintiff and between the court and
JURISDICTION is the power and authority of the defendant, or petitioner the subject matter
tribunal to hear, try and decide a case. (Veneracion and respondent
v. Mancilla, G.R. No. 158238, 2006)

May be conferred by the Fixed by law and

act or agreement of the cannot be conferred
parties (e.g. the parties by agreement of the
can include the following parties
stipulation in a contract
of lease: “In case of
dispute arising from this
In the absence of qualifying or restrictive words (i.e., contract, a party shall
solely, exclusively, particularly, etc.), venue file a suit with the
stipulation is merely permissive and NOT exclusive. Regional Trial Court of
This implies that the stipulated venue will only be in Pasig City” OR “In case
addition to the venue provided for in the Rules. of dispute arising from
this contract, a party
shall file a suit
exclusively with the
Regional Trial Court of
Pasig City”

VENUE JURISDICTION

Not a ground for a motu Lack of jurisdiction

proprio dismissal (except over the subject
in cases subject to matter is a ground for
The place where the The authority to hear Summary Procedure) a motu proprio
case is to be heard or and determine a case dismissal
tried (e.g., Regional Trial
Court of Makati City or
Quezon City)

73

May be waived only in Cannot be waived
civil cases. In criminal
cases, venue is
jurisdictional.
2. VENUE OF REAL ACTIONS
It shall be commenced and tried in the proper court
which has jurisdiction over the area wherein the real
property involved, or a portion thereof, is situated.
Forcible entry and detainer actions shall be
commenced and tried in the municipal trial court of
the municipality or city wherein the real property
involved, or a portion thereof, is situated.
Real actions, as so opposed to personal actions,
are those which affect the title to or possession of
real property.  Where a contrary claim to ownership
is made by an adverse party, and where the relief
prayed for cannot be granted without the court
deciding on the merits, the issue of ownership and
title, more specifically, as to who, between the
contending parties, would have a better right to the
property, the case can only be but a real action.
(Gumabon v. Larin, G.R. No. 142523, 2001)
The Court explicitly pronounced that “[t]he court
acquires jurisdiction over any case only upon the
payment of the prescribed docket fee.” Hence, the
payment of docket fees is not only mandatory, but
also jurisdictional. A real action indisputably
involves real property. The docket fees for a real
action would still be determined in accordance with
the value of the real property involved therein; the
only difference is in what constitutes the acceptable
value. In computing the docket fees for cases
involving real properties, the courts, instead of
relying on the assessed or estimated value, would
now be using the fair market value of the real
properties (as stated in the Tax Declaration or the
Zonal Valuation of the Bureau of Internal Revenue,
whichever is higher) or, in the absence thereof, the
stated value of the same.  (Ruby Shelter v. Hon.
Formaran III, G.R. No. 175914, 2009)
An action to recover the deficiency after
extrajudicial foreclosure of a real property mortgage
is a personal action because it does not affect title
to or possession of real property, or any interest
therein.
(BPI Family v. Yujuico, G.R. 175796, 2015)
3. VENUE OF PERSONAL ACTIONS
Venue is Transitory. Hence, the Action May Be
Commenced and Tried:
1. Where the plaintiff or any of the principal
plaintiffs reside;
2. Where the defendant or any of the principal
defendants resides; or
3. In the case of a non-resident defendant, where
he may be found.
All at the election of the PLAINTIFF.
RESIDENCE means physical or actual habitation.
When there is more than one plaintiff in a personal
action case, the residences of the principal parties
should be the basis for determining proper venue.
According to Justice Feria, “the word ‘principal’ has
been added in order to prevent the plaintiff from
choosing the residence of a minor plaintiff or
defendant as the venue.” Eliminate the qualifying
term “principal” and the purpose of the Rule would
be defeated where a nominal or formal party is
impleaded in the action since the latter would not
have the degree of interest in the subject of the
action which would warrant and entail the desirably
active participation expected of litigants in a case.
(Marcos-Araneta v. Cam GR No. 154096, 2008.)
As regards the venue of derivative suits, Section 5,
Rule 1 of A.M. No. 01-2-04-SC states: SEC. 5.
Venue. All actions covered by these Rules shall be
commenced and tried in the Regional Trial Court,
which has jurisdiction over the principal office of the
corporation, partnership, or association concerned.
Where the principal office of the corporation,
partnership or association is registered in the
Securities and Exchange Commission as Metro
Manila, the action must be filed in the city or
municipality where the head office is located. (Hi-
Yield Realty, Inc. v. Court of Appeals, G.R. No.
168863, 2009)
74

4. VENUE OF ACTIONS AGAINST
NON-RESIDENTS
If Defendant Does Not Reside But IS FOUND in
the Philippines
When it is a PERSONAL action, the action may be
commenced and tried in the court of the place
where the plaintiff resides or where the defendant
may be found (e.g. If the defendant is U.S. resident,
but is on vacation in Makati, summons may be
served on defendant in Makati).
If there are several defendants, but one of them is a
resident or a nonresident but can be found in the
Philippines, the action may be commenced where
the plaintiff resides or where the resident defendant
resides or where the nonresident defendant may be
found.
When it is a REAL action (e.g., recovery of real
property), the action may be commenced where the
property or any portion thereof is situated or found.
If None of the Defendants Reside in the
Philippines and None are Found in the
Philippines
When the action affects the PERSONAL STATUS
of the PLAINTIFF, the action may be commenced
and tried in the court of the place where the plaintiff
resides.
When the action affects the PROPERTY of the
DEFENDANT located in the Philippines, the action
may be commenced where the property or any
portion thereof is situated or found.
The proper venue in an action for revival of
judgment depends on the determination of whether
the present action for revival of judgment is a real
action or a personal action. The allegations in the
complaint for revival of judgment determine whether
it is a real action or a personal action. (Infante v.
Aran Builders, G.R. No. 156596, 2006)
5. WHEN RULE ON VENUE NOT
APPLICABLE
The Rule on Venue is INAPPLICABLE in Cases
Where a specific rule or law provides otherwise.
Venue of Derivative Suits
Regional Trial Court which has jurisdiction over the
principal office of the corporation, partnership, or
association concerned.
Where the principal office of the corporation,
partnership or association is registered in the
Securities and Exchange Commission as Metro
Manila, the action must be filed in the city or
municipality where the head office is located. (Rule
1 of A.M. No. 01-2-04-SC, Section 5)
Venue of Action of Nullity of Marriage
Where plaintiff resides, where the defendant resides
or where their conjugal home is located.
Venue of Adoption
Where the prospective parents reside.
Venue of Probate
If the decedent died in the Philippines: Where the
deceased last resided at his time of death.
If the decedent died abroad: In any of the province
where he has property.
Writ of habeas corpus on residence of minor:
General Rule: Regional Trial Court where the
minor is supposed to be found.
75
 Exception: When place is unknown or
minor cannot be found, it can be filed in
the Court of Appeals or the Supreme
Court.
2. Where the parties have validly agreed in writing
before the filing of the action on the exclusive venue
thereof.
Example: “In case of dispute arising from this
contract, a party shall file a suit exclusively with the
Regional Trial Court of Pasig City”.
Venue of Libel
General rule:
The criminal and civil action for damages in cases
of written defamations shall be filed simultaneously
or separately with the RTC 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.
Exception:
Where one of the offended parties is a public
officer whose office is in the City of Manila at the
time of the commission of the offense, the action
shall be filed in the RTC of the City of Manila, or
of the city or province where the libelous article
is printed and first published, and in case such
public officer does not hold office in the City of
Manila, the action shall be filed in the RTC of the
province or city where he held office at the time
of the commission of the offense or where the
libelous article is printed and first published and
in case one of the offended parties is a private
individual, the action shall be filed in the RTC of
the province or city where he actually resides at
the time of the commission of the offense or
where the libelous matter is printed and first
published. (Article 360, Revised Penal Code)
Note: The civil action shall be filed in the same
court where the criminal action is filed and vice
versa. (Article 360, Revised Penal Code)
Note: The court where the criminal action or civil
action for damages is first filed, shall acquire
jurisdiction to the exclusion of other courts. (Article
360, Revised Penal Code)
6. EFFECTS OF STIPULATIONS ON
VENUE
The Stipulation on Venue Must Be:
1. In writing;
2. Made before the filing of the action; and
3. Exclusive as to the venue.
The mere stipulation on the venue of an action is
not enough to preclude parties from bringing a case
in other venues. In the absence of qualifying or
restrictive words, the stipulation should be
deemed as merely an agreement on an additional
forum, not as limiting venue to the specified place.
(Sps. Lantin v. Lantion, G.R. No. 160053, 2006)
If the intention of the parties were to restrict venue,
there must be accompanying language clearly and
categorically expressing their purpose and design
that actions between them be litigated only at the
place named by them. (Riano, Civil Procedure: A
Restatement for the bar, 2nd ed, 2009)
Examples of qualifying or restrictive words:
"exclusively" and "waiving for this purpose any
other venue,"  "shall only" preceding the
designation of venue, "to the exclusion of the other
courts," or words of similar import. (Auction in
Malinta, Inc. v. Luyaben, G.R. No. 173979, 2007)
Exclusive venue stipulation embodied in a contract
restricts or confines parties thereto ONLY when the
suit relates to breach of said contract. Since the
other causes of action in petitioner’s complaint do
not relate to the breach of the agreement it forged
embodying the exclusive venue stipulation, they
should not be subject to the exclusive venue. The
stipulation should be strictly confined to the specific
76
undertaking or agreement. (Uniwide v. Cruz, G.R.
No. 171456, 2007) E. PLEADINGS
If the complaint was assailing the validity of the
written instrument itself, the parties should not be
bound by the exclusive venue stipulation contained
therein and should be filed in accordance with the
general rules on venue. It would be inherently
inconsistent for a complaint of this nature to
recognize the exclusive venue stipulation when it, in
fact, precisely assails the validity of the instrument
in which such stipulation is contained. (Briones v.
Court of Appeals, G.R. No. 204444, 2015)
Waiver of Venue
The ground of improperly laid venue must be raised
seasonably, else it is deemed waived. Where the
defendant failed to either file a motion to dismiss on 1. KINDS OF PLEADINGS
the ground of improper venue or include the same
as an affirmative defense, he is deemed to have
waived his right to object to improper venue.

In the case at bench, petitioners raised at the

earliest time possible, meaning “within the time for
but before filing the answer to the complaint,” the a. Complaint
matter of improper venue. (Marcos-Araneta v. Court b. Answer
of Appeals, G.R. No. 154096, 2008)

Venue for a case for revival of judgment

The proper venue depends on the determination of
whether the present action for revival of judgment is
a real action or a personal action. Applying the
afore-quoted rules on venue, if the action for revival i. Affirmative defenses
of judgment affects title to or possession of real ii. Negative defenses
property, or interest therein, then it is a real action iii. Negative pregnant
that must be filed with the court of the place where
the real property is located. If such action does not
fall under the category of real actions, it is then a
personal action that may be filed with the court of
the place where the plaintiff or defendant resides.
(Infante v. Aran Builders, GR No. 156596, 2007 )
c. Counterclaims

END OF TOPIC
i. Compulsory counterclaim
ii. Permissive counterclaim
iii. Effect on the counterclaim when
the complaint is dismissed

77
 d. Cross-claims a. Manner of making allegations
e. Third (fourth, etc.) party complaints
f. Complaint-in-intervention
g. Reply

i. Condition precedent
ii. Fraud, mistake, malice, intent,
knowledge and other condition of
the mind, judgments, official
2. PLEADINGS ALLOWED IN SMALL documents or acts
CLAIM CASES AND CASES
COVERED BY THE RULES ON
SUMMARY PROCEDURE
3. PARTS OF A PLEADING

b. Pleading an actionable document

c. Specific denials

a. Caption
b. Signature and address
c. Verification and certification against
forum shopping i. Effect of failure to make specific
denials
ii. When a specific denial requires an
oath

i. Requirements of a corporation
executing the
verification/certification of non-
forum shopping 5. EFFECT OF FAILURE TO PLEAD

d. Effect of the signature of counsel in a a. Failure to plead defenses and

pleading objections
b. Failure to plead a compulsory
counterclaim and cross-claim

4. ALLEGATIONS IN A PLEADING

78
6. DEFAULT 8. AMENDMENT

a. When a declaration of default is proper a. Amendment as a matter of right

b. Effect of an order of default b. Amendments by leave of court
c. Relief from an order of default c. Formal amendment
d. Effect of a partial default d. Amendments to conform to or
e. Extent of relief authorize presentation of evidence
f. Actions where default are not allowed e. Different from supplemental pleadings
f. Effect of amended pleading

7. FILING AND SERVICE OF

PLEADINGS
1. KINDS OF PLEADINGS

PLEADING
The written statements of the respective claims and
defenses of the parties submitted to the court for
appropriate judgment (Section 1, Rule 6 of the
a. Payment of docket fees Rules of Court)
b. Filing versus service of pleadings
c. Periods of filing of pleadings MOTION
d. Manner of filing An application for relief other than by a pleading.
The rules that apply to pleadings shall also apply to
e. Modes of service written motions so far as concerns caption,
designation, signature, and other matters of form.
(Rule 15, Section 10)

i. Personal service
ii. Service by mail
iii. Substituted service
iv. Service of judgments, final orders
or resolutions PLEADING MOTION
v. Priorities in modes of service and
filing
vi. When service is deemed complete
vii. Proof of filing and service

79
 residences of the plaintiff and defendant must be
Is a submission of Is an application for an
stated in the complaint. (Rule 6, Section 3)
claims or defenses for order not included in the
appropriate judgment judgment
A pleading should only contain ULTIMATE FACTS,
which are essential to a party’s cause of action or
defense. It must be stated in a logical form and in a
plain and concise manner.

What are NOT Ultimate Facts:

May be initiatory Cannot be initiatory as
motions are made in a
case already filed in
court
1. Evidentiary or immaterial facts;
2. Legal conclusions, conclusions or inferences of
facts not stated, or incorrect inferences or
conclusions from facts stated;
3. The details of probative matter or particulars of
evidence, statements of law, inferences and
arguments; or
4. An allegation that a contract is valid or void is a
mere conclusion of law.

Must be written May be oral when made
in open court or in the
course of a hearing or a
trial
b. ANSWER
An answer is a pleading in which a defending party
sets forth his defenses.
It may be an answer to a complaint, a counterclaim
or a cross-claim.

Defenses

Must be filed before May be filed after

judgment judgment

(i) Affirmative Defenses

PLEADINGS ALLOWED BY THE RULES OF

COURT:
1. Complaint An affirmative defense is an allegation of a new
2. Answer matter which, while hypothetically admitting the
3. Counterclaim material allegations in the pleading of the claimant
4. Cross-claim would nevertheless prevent or bar recovery by
5. Third (fourth, etc. – party complaint) him.  The affirmative defenses include fraud, statute
6. Complaint-in-intervention of limitations, release, payment, illegality, statute of
7. Reply frauds, estoppel, former recovery, discharge in
bankruptcy, and any other matter by way of
a. COMPLAINT confession and avoidance.

The complaint is the pleading alleging the plaintiff’s Before an allegation qualifies as an affirmative
cause or causes of action.  The names and defense, it must be of such nature as to bar the
plaintiff from claiming on his cause of action

80
(Pesane Animas Mongao v. Pryce Properties
Corp., G.R. No. 156474, 2005)
(ii) NEGATIVE DEFENSES
Negative defense refer to the specific denial of the
material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
Denials in the answer must be specific, or based on
a lack of information sufficient to form a belief as to
the truth of the allegation in the complaint.
Specific Denial – A specific denial is made by
specifying each material allegation of fact, the truth
of which the defendant does not admit and,
whenever practicable, setting forth the substance of
the matters upon which he relies to support his
denial. ( UA vs. Wallem Philippines Shipping, Inc
G.R. No. 171337. July 11, 2012)
The purpose of requiring the defendant to make a
specific denial is to make him disclose the matters
alleged in the complaint which he succinctly intends
to disprove at the trial, together with the matter
which he relied upon to support the denial.
(Aquintey vs. Tibong, G.R. No. 166704. December
20, 2006)
The failure to make a specific denial will be
considered an admission of that particular allegation
in the complaint.
Denial Amounting to Admissions:
1. General Denial
A general denial is one which puts in issue all the
material averments of the complaint or petition, and
permits the defendant to prove any and all facts
which tend to negative those averments or some
one or all of them.( Loyola vs. House of
Representatives Electoral Tribunal, G.R. No.
109026. January 4, 1994.)
(iii) NEGATIVE PREGNANT
A negative implying also an affirmative and which
although is stated in a negative form, really admits
the allegations to which it relates. (Cramer v. Aiken,
63 App. D.C. 16, 68 F 2d 761, 762, 1933) This
usually arises when the leader merely repeats the
allegations in a negative form.
Where a fact is alleged with some qualifying or
modifying language, and the denial is conjunctive, a
‘negative pregnant’ exists, and only the qualification
or modification is denied, while the fact itself is
admitted. A denial in the form of a negative
pregnant is an ambiguous pleading, since it cannot
be ascertained whether it is the fact or only the
qualification that is intended to be denied. (Galofa v.
Nee Bon Sing, G.R. No. L-22018, 1968)
Example: There is a negative pregnant where a
respondent denies having “personal knowledge” of
the plaintiff’s daughter Y’s Certificate of Live Birth.
In said certificate, the plaintiff named respondent—a
“lawyer,” 38 years old—as the child’s father. And
the phrase “NOT MARRIED” is entered on the
desired information on “DATE AND PLACE OF
MARRIAGE.” A comparison of the signature
attributed to the plaintiff’s in the certificate with her
signature on the Marriage Certificate shows that
they were affixed by one and the same person.
Notatu dignum is that, as the Investigating
Commissioner noted, respondent never denied
being the father of the child. (Guevarra vs. Eala,
A.C. No. 7136., 2007)
Example: A complaint, in par. 4, alleged that the
plaintiff was unable to take actual possession of the
property because of the “unwarranted adverse
claim of rights of ownership and possession by the
defendant, alleging sale by a certain Fe of said
property to defendant, which if true, had no right
whatsoever to legally dispose the above-described
property not being the owner thereof.” In response,
the answer of the defendant stated: “The defendant
denies the material averments contained in par. 4,
the truth being, that the defendant never asserted
title of ownership to the property described in the
complaint to anybody, much less to the herein
plaintiff in virtue of any deed of conveyance
executed in favor of the defendant by one Fe, nor
claimed any possessory right over the said
property, either by himself or through another. The
Court held that there was a negative pregnant in the
defendant’s reply, which is to be construed as an
implied admission. Particularly, when the
plaintiff alleged that his inability to take actual
81
possession of the parcel of land due to "an
unwarranted adverse claim of rights of ownership
and possession by the defendant," followed by an
allegation of how such claim was exercised, the
defendant’s denial is as to "the material averments
contained in par. 4 of the Complaint," conjoined with
his disclaimer of dominical or possessory rights in
the manner alleged in the complaint. It thus
appeared that he denied the averments in par. 4,
but he did not deny the fact of ownership and right
to possession of the plaintiff. (Galofa v. Nee Bon
Sing, G.R. No. L-22018, 1968)
It does not qualify as a specific denial but is
conceded to be actually an admission. (Riano, Civil
Procedure: A Restatement for the Bar, 2nd ed, 2009)
c. COUNTERCLAIMS
A counterclaim is any claim, which a defending
party may have against an opposing party.
When a defendant files a counterclaim against the
plaintiff, he becomes the plaintiff in the counterclaim
and the original plaintiff becomes the defendant.
A counterclaim may be COMPULSORY or
PERMISSIVE.
(i) COMPULSORY COUNTERCLAIM
Elements:
1. Arises out of or is necessarily connected with
the transaction or occurrence which is the
subject matter of the opposing party’s claim;
2. It does not require for its adjudication the
presence of third parties over whom the court
cannot acquire jurisdiction;
3. The court has jurisdiction over the amount and
nature of the case; and
4. It must be cognizable by the regular courts of
justice.
To determine whether a counterclaim is compulsory
or not, the Supreme Court have devised the
following tests: (1) Are the issues of fact or law
raised by the claim and the counterclaim largely the
same? (2) Would res judicata bar a subsequent suit
on defendant’s claim absent the compulsory
counterclaim rule? (3) Will substantially the same
evidence support or refute plaintiff’s claim as well as
the defendant’s counterclaim? and (4) Is there any
logical relation between the claim and the
counterclaim? Affirmative answers to the above
queries indicate the existence of a compulsory
counterclaim. (See Financial Building v. FPA, GR
No. 133119, 2000)
Despite the lack of jurisdiction of the court to
adjudicate on the counterclaim, the same may
nevertheless be pleaded in the same action, not to
obtain affirmative relief because the court, for want
of jurisdiction cannot do so. The purpose would
merely be as a defense to weaken the plaintiff’s
claim (Maceda v. Court of Appeals, G.R. No. 83545,
1989)
A party who desires to plead a compulsory
counterclaim should NOT file a motion to dismiss. If
he files a motion to dismiss and the complaint is
dismissed there will be no chance to invoke the
counterclaim. (Riano, Civil Procedure: A
Restatement for the bar, 2nd ed, 2009)
A dismissal of the complaint does not carry with it
the dismissal of the counterclaim.
A compulsory counterclaim not initially set up
because of the pleader’s oversight, inadvertence,
excusable neglect or when justice requires, may be
set up, by leave of court by amendment of the
pleadings before judgment (Rule 11, Section 10). If
not set up in the action, the compulsory
counterclaim shall be barred (Rule 9, Section 2)
If a compulsory counterclaim matures or was
acquired by a party after serving his answer, the
compulsory counterclaim is not deemed barred and
may be pleaded by filing a supplemental answer or
pleading before judgment.
82
Difference between Counterclaims filed in the of action of the counterclaimant is not eliminated by
Municipal Trial Court and in the Regional Trial the mere dismissal of the main complaint. (Padilla v.
Court: Globe Asiatique, G.R. No. 207376, 2014)
A counterclaim filed in the Municipal Trial Court or The rule that “the additional docket fee therefor
in the Metropolitan Trial Court must be within the shall constitute a lien on the judgment” applies only
court’s jurisdiction both as to the nature and to the to damages arising after the filing of the complaint
amount of the claim. or similar pleading, for then it will not be possible for
the claimant to specify nor speculate as to the
A counterclaim filed in the Regional Trial Court may amount thereof. (GSIS v. Caballero, G.R. No.
be deemed compulsory regardless of the amount 158090, 2010)
but it must be within its jurisdiction as to nature –
i.e., an RTC cannot try an unlawful detainer case as
a counterclaim, but it may take cognizance of a
counterclaim involving an amount below its
jurisdictional threshold (i.e. small amounts). COMPULSORY PERMISSIVE
COUNTERCLAIM COUNTERCLAIM
Shall be contained in May be set up as an
the answer. If not set independent action and
up it shall be barred. will not be barred if not
contained in the answer
to the complaint.
(ii) PERMISSIVE COUNTERCLAIM

Not an initiatory An initiatory pleading

pleading

Does not require Should be

A counterclaim is permissive if any of the elements certification of forum accompanied by a
of a compulsory counterclaim is absent (see shopping certification against
above). The most commonly treated feature of a forum shopping and
permissive counterclaim is its absence of a logical whenever required by
connection with the subject matter of the complaint. law, a certificate to file
(International Container Terminal Services Inc. v. action issued by
CA, G.R. No. 90530, 1992) Lupong Tagapamayapa

In contrast, a permissive counterclaim does not

necessarily arise out of or is not directly connected
with the subject matter of the first claim; it can be
filed as a separate case altogether. There is a need
to pay for docket fees since it is seen as a different
action altogether with defendants becoming
‘plaintiffs’ in respect of such counterclaim. (Reillo v.
San Jose, G.R. No. 166393, 2009)
The counterclaim must be existing at the time of the
filing the answer, though not at the commencement
of the action for under Section 3 of the former Rule
10, the counterclaim or cross-claim must be one
which he may have “at the time” against the
opposing party. (Banco de Oro v. Court of Appeals,
G.R. No. 160354, 2005)
If the compulsory counterclaim is by reason of an
unfounded suit then it may prosper even with the
main complaint having been dismissed. The cause

83
A compulsory Must be answered by
counterclaim that the party against whom
merely reiterates it is interposed
special defenses are otherwise, he may be
deemed controverted declared in default as to The defending party has the right to prosecute the
even without a reply. the counterclaim. counterclaim in the same or separate action
notwithstanding the dismissal of the complaint, and
Issues raised in a The answer must be without regard as to the permissive or compulsory
counterclaim are made within ten (10) nature of the counterclaim. (Rule 17, Sections 2 and
deemed automatically days from service. 3)
joined by the
allegations of the d. CROSS-CLAIMS
complaint, which need
not be answered. A cross-claim is any claim by one party against a
co-party arising out of the transaction or occurrence
that is the subject matter either of the original action
or of a counterclaim therein.  
Such cross-claim may include a claim that the party
against whom it is asserted is or may be liable to
One which arises out It does not arise out of the cross-claimant for all or part of a claim asserted
or is necessarily nor is it necessarily in the action against the cross-claimant. (Section 8,
connected with the connected with the Rule 6 of the Rules of Court)
transaction or subject matter of the
occurrence that is the opposing party’s claim A cross-claim that a party has at the time the
subject matter of the answer is filed shall be contained in the answer.
opposing party’s claim
Requirements:
1. A claim by one party against a co-party;
2. Must arise out of the transaction or occurrence
that is the subject matter either of the original
No requirement for the May require for its
action or of a counterclaim; and
presence of third adjudication the
3. The cross-claimant is prejudiced by the claim
parties whom the presence of third
against him by the opposing party.
court cannot acquire parties over whom the
jurisdiction over for its court cannot acquire
adjudication jurisdiction If It is Not Set Up in the Action, It is Barred
EXCEPT:
1. When it is outside the jurisdiction of the court;
2. If the court cannot acquire jurisdiction over third
parties whose presence is necessary for the
adjudication of said cross-claim. In which case,
the cross-claim is considered PERMISSIVE;
3. Cross claim that may mature or maybe acquired
after service of the answer.

The dismissal of the complaint carries with it the

dismissal of a cross-claim which is purely defensive,
but not a cross-claim seeking an affirmative relief.
(iii) EFFECT ON THE COUNTERCLAIM
WHEN THE COMPLAINT IS Counter-counterclaims and counter-cross-
DISMISSED claims
A counter-counter claim is filed when there is a
claim against the original counterclaimant. On the
other hand, a counter-cross-claim is filed against an
original cross claimant.

84
 CROSS COUNTER- 3RD PARTY
CLAIM CLAIM COMPLAINT
Against a co- Against an Against a
arising out of another or different transaction, is
party opposing person not a
connected with the plaintiff’s claim;
party party to the
2. Whether the third-party defendant would be
action
liable to the plaintiff or to the defendant for all or
Must arise out May arise out Must be in part of the plaintiff’s claim against the original
of the of or be respect of the defendant; and
transaction necessarily opponent’s 3. Whether the third party defendant may assert
that is the connected (Plaintiff) any defenses that the third-party plaintiff has or
subject matter with the claim may have to plaintiff’s claim.
of the original transaction or
action or of a that is the
counterclaim subject matter
therein of the
opposing
party’s claim
in which case,
it is called a
compulsory
counterclaim,
or it may not,
in which case
it is called a
permissive Summons on third, fourth etc.-party defendant must
counterclaim be served for the court to obtain jurisdiction over his
person, since he is not an original party.

Where the trial court has jurisdiction over the main

case, it also has jurisdiction over the third party
complaint; regardless of the amount involved as a
third party complaint is merely auxiliary to and is a
continuation of the main action.

No need for No need for Leave of court A prerequisite to the exercise of such right is that
leave of court leave of court is required some substantive basis for a third-party claim be
found to exist, whether the basis be one of
indemnity, subrogation, contribution or other
substantive right. There must be a causal
connection between the claim of the plaintiff in his
complaint and a claim for contribution, indemnity or
other relief of the defendant against the third-party
e. THIRD, (FOURTH, ETC.) PARTY defendant.  The Court made out the following tests:
COMPLAINT (1) whether it arises out of the same transaction on
which the plaintiff’s claim is based; or whether the
A claim that a defending party may, with leave of third-party claim, although arising out of another or
court, file against a person not a party to the action, different contract or transaction, is connected with
called the third (fourth, etc.)—party defendant, for the plaintiff’s claim; (2) whether the third-party
contribution, indemnity, subrogation or any other defendant would be liable to the plaintiff or to the
relief, in respect of his opponent’s claim.  defendant for all or part of the plaintiff’s claim
against the original defendant, although the third-
Tests to Determine Whether the Third-Party party defendant’s liability arises out of another
Complaint is in Respect of Plaintiff’s Claim: transaction; and (3) whether the third-party
1. Whether it arises out of the same transaction on defendant may assert any defenses which the third-
which the plaintiff’s claim is based, or although party plaintiff has or may have to the plaintiff’s

85
claim. (Asian Construction v. Court of Appeals, G.R.
No. 160242, 2005)
Bringing new parties
This is availed of when none of the parties desired
to be brought into the action is a part of the main
action.
f. COMPLAINT-IN-INTERVENTION
INTERVENTION
A legal proceeding by w/c a person who is not a
party to the action is permitted by the court to
become a party by intervening in a pending action
after meeting the conditions and requirements of
the Rules of Court. (Riano, Civil Procedure: A
Restatement for the bar, 2nd ed, 2009)
If the purpose of the motion for intervention is to
assert a claim against either or all of the original
parties, the pleading shall be called a COMPLAINT-
IN-INTERVENTION.
Intervention is an action that is neither compulsory
nor mandatory but only optional and permissive; the
court has the full discretion in permitting or allowing
the same.
Requisites:
1 Motion for intervention must be filed before
judgment;
2. Movant must show that he has the ff. legal
interest in the (a) matter in litigation, (b) the
success of either parties, or (c) against both
parties;
3. Movant will be adversely affected by the
judgment; and
4. Intervention must NOT unduly delay or
prejudice the adjudication of the rights of the
original parties and that the movant’s rights may
not be fully protected by a separate proceeding.
(Riano, Civil Procedure: A Restatement for the
bar, 2nd ed, 2009)
The motion to intervene may be filed at any time
before rendition of judgment by the trial court.
g. REPLY
A pleading, the office or function of which is to
deny, or allege facts in denial or avoidance of
new matters alleged by way of defense in the
answer and thereby join or make issue as to such
new matters.  
If a party does not file such reply, all the new
matters alleged in the answer are deemed
controverted or denied. No admission follows from
the failure to file a reply (Section 10, Rule 6 of the
Rules of Court)
Filing of a Reply is NOT Mandatory, EXCEPT:
1. When the defense in the answer is based upon
an actionable document (Rule 8, Section 7); or
2. To set up affirmative defenses on the
counterclaim.
Thus, where the defense in the Answer is based on
an actionable document, a Reply specifically
denying it under oath must be made; otherwise, the
genuineness and due execution of the document
will be deemed admitted. (Casent Realty v.
Philbanking, G.R. No. 150731, 2007)
2. PLEADINGS ALLOWED IN SMALL
CLAIMS CASES AND CASES
COVERED BY THE RULES ON
SUMMARY PROCEDURE
The RULES OF PROCEDURE FOR SMALL
CLAIMS CASES shall apply in All Actions which
are:
1. Purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment or
reimbursement of sum of money.
2. The civil aspect of criminal actions either filed
before the institution of the criminal action, or
reserved upon the filing of the criminal action in
court. (Section 4, Rule of Procedure for Small
Claims Cases)
A small claims action is commenced by filing with
the court an accomplished and verified Statement
of Claim in duplicate, accompanied by a
Certification of Non-forum Shopping, and two (2)
86
duly certified photocopies of the actionable
document/s subject of the claim, as well as the
affidavits of witnesses and other evidence to
support the claim. (Section 5, Rule of Procedure for
Small Claims Cases)
The defendant shall file his Response and serve
the same upon the plaintiff. He shall file a
Counterclaim with the Response IF the
counterclaim is
1. Within the coverage of the Rule exclusive of
interests and costs;
2. Arises out of the same transaction or event that
is the subject matter of the plaintiff’s claim;
3. Does not require the joinder of third parties; and
4. Is not the subject of another pending action.
Prohibited Pleadings in Small Claims Cases
1. Motion to dismiss the complaint;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions
The RULE ON SUMMARY PROCEDURE shall
apply to the following:
1. All cases of forcible entry and unlawful detainer,
irrespective of the amount of damages or unpaid
rentals sought to be recovered.
2. All other cases, except probate proceedings,
where the total amount of the plaintiff’s claim
does not exceed one hundred thousand pesos
(P100,000) or two hundred thousand pesos
(P200,000) in Metropolitan Manila, exclusive of
interests and costs. (A.M. No. 02-11-09-SC)
Allowed Pleadings in Summary Procedure
Cases
1. Complaint
2. Compulsory Counterclaim
3. Cross-Claims pleaded in the Answer
4. Answers to these pleadings (Section 3, Rules on
Summary Procedure)
Prohibited Pleadings
1. Motion to dismiss the complaint or to quash the
complaint or information except on the ground of
lack of jurisdiction over the subject matter, or
failure to comply with the preceding section;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of
judgment, or for opening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third party complaints;
12. Interventions
3. PARTS OF A PLEADING
a. CAPTION
The caption contains the following:
1. The name of the court;
2. The title of the action; and
3. The docket number, if assigned.
Body
The body sets forth:
1. Its designation;
2. The allegation of the party’s claims and
defenses;
3. The reliefs prayed for; and
87
4. The date of the pleading.
b. SIGNATURE AND ADDRESS
The complaint must be signed by the plaintiff OR
counsel representing him/her indicating his/her
address.
Insufficiency in form and substance, as a ground for
dismissal of the complaint, should not be based on
the title or caption, especially when the allegations
of the pleading support an action. (Sps. Munsalud v.
NHA, G.R. No. 167181, 2008)
An UNSIGNED PLEADING produces NO LEGAL
EFFECT. The court is authorized, however, to
allow the pleader to correct the deficiency if the
pleader shows, to the satisfaction of the court, that
the failure to sign the pleading was due to the mere
inadvertence and not to delay the proceedings.
(Section 3, Rule 7 of the Rules of Court)
c. VERIFICATION and CERTIFICATION AGAINST
FORUM SHOPPING
VERIFICATION
Generally, a pleading need not be verified EXCEPT
only when verification is required by a law or by a
rule. (Rule 7, Section 4)
A pleading which is required to be verified but lacks
the proper verification shall be treated as an
unsigned pleading which produces no legal effect
and is dismissible.
However, it has been held that the requirement
regarding verification of a pleading is formal, not
jurisdictional—non-compliance with which does not
necessarily render the pleading fatally defective.
The court may order the correction of the pleading if
verification is lacking or act on the pleading
although it is not verified, if the attending
circumstances are such that the strict compliance
with the rules may be dispensed with in order that
the ends of justice may thereby be served.
(Republic v. Coalbrine International Philippines,
Inc., G.R. No. 161838, 2010)
A Pleading is verified by an AFFIDAVIT which
declares that:
1. The affiant has read the pleading; and
2. That the allegations therein are true and correct
of his personal knowledge or based on authentic
records on file. (Rule 7, Section 4)
CERTIFICATION AGAINST FORUM SHOPPING
FORUM SHOPPING
It consists of filing multiple suits in different courts,
either simultaneously or successively, involving the
same parties, to ask the courts to rule on the same
related causes and/or to grant the same or
substantially the same relief.
The CERTIFICATION AGAINST FORUM
SHOPPING is executed by the PLAINTIFF or the
PRINCIPAL PARTY under oath and must be signed
by the party himself/herself and not merely by his
attorney.
A certification against forum shopping signed by
counsel is a defective certification that is equivalent
to non-compliance with the requirement and
constitutes a valid cause for the dismissal of the
petition. (Ty-De Zuzuarregui v. Villarosa, G.R. No.
183788, 2010)
The Certification Against Forum Shopping is a
Sworn Statement Certifying to the Following
Matters:
1. That the party has not commenced any action or
filed any claim involving the same issues in any
court, tribunal, or quasi-judicial agency and, to
the best of his/her knowledge, no such other
action or claim is pending therein;
2. That if there is such other pending action or
claim, a complete statement of the present
status thereof; and
3. That if he/she should thereafter learn that the
same or similar action or claim has been filed or
is pending, he/she shall report that fact within 5
days therefrom to the court wherein his/her
complaint or initiatory pleading was been filed.
(Rule 7, Section 5)
The certificate of non-forum shopping is a
mandatory requirement in filing a complaint and
other initiatory pleadings asserting a claim or
relief. (Rule 7, Section 5)
An initiatory pleading includes:
1. Permissive counterclaim;
2. Cross-claim;
3. Third (fourth, etc.)-Party complaint;
88
4. Complaint-in-intervention; and
5. Petition or any application in which a party
asserts his claim for relief.
Failure to comply with the requirements is not
curable by mere amendment of the pleading but
shall be cause for dismissal of the case, WITHOUT
prejudice, unless otherwise provided. Dismissal
shall be UPON MOTION and AFTER hearing.
To determine Forum Shopping, the test is to see
whether, in the two or more cases pending,
there is:
1. Identity of parties;
2. Identity of rights and causes; and
3. Identity of reliefs sought.
(Huibonhoa v. Concepcion, G.R. No. 153785,
2006)
Thus, forum shopping exists when the elements of
litis pendentia are present or where a final judgment
in one case will amount to res judicata in another.
i) REQUIREMENT OF A CORPORATION
EXECUTING THE
VERIFICATION/CERTIFICATION OF
NON-FORUM SHOPPING
The certification may be executed by an authorized
person as long as he/she is duly authorized by the
corporation and has personal knowledge of the
facts required to be disclosed in the certification
against forum shopping, the certification may be
signed by the authorized lawyer. (National Steel
Corporation v. CA, G.R. No. 134468, 2002)
Where a general manager of a corporation signs
the verification and certification against forum
shopping without attaching therewith a
Corporate Secretary’s certificate or board
resolution that he is authorized to sign for and on
behalf of the petitioner-corporation, such failure is
NOT fatal to the complaint of the corporation. This
is especially true where the requisite board
resolution was subsequently submitted to the
court together with the pertinent documents. The
dismissal on a purely technical ground is frowned
upon especially if it will result in unfairness. The
rules of procedure ought not to be applied in a very
rigid, technical sense for they have been adopted to
help secure, not override, substantial justice. (Mid-
land Pasig Land Development Co. v. Mario
Tablante, G.R. No. 162924, 2010)
Effect of Submission of False Certification or
Non-Compliance with the Undertakings Therein:
1. Indirect contempt; and
2. Without prejudice to the filing of administrative
and criminal actions.
Effects of Willful and Deliberate Forum
Shopping:
1. Shall be ground for summary dismissal of the
case with;
2. Direct contempt; and
3. A cause for administrative sanctions
In order to be held liable for willful an deliberate
forum shopping, there should be, on the party’s
part, either a failure to include the certification in
one's initiatory pleading, or a misrepresentation as
89
to the pendency of another case involving the same A Counsel Shall be Subject to Disciplinary
issues, parties, and causes of actions with the Action in the Following Cases:
second complaint. But where plaintiff files his 1. When he/she deliberately files an unsigned
second complaint, after the court with jurisdiction pleading;
over the first complaint had granted a dismissal 2. When he/she signs a pleading in violation of the
order, and such dismissal order has attained finality, Rules;
the plaintiff cannot be made liable for forum 3. When he/she alleges in the pleading scandalous
shopping. (Daswani v. BDO Universal, G.R. No. or indecent matter;
190983, 2015) 4. When he/she fails to promptly report to the court
a change of his/her address. (Rule 7, Section 3)
There is substantial compliance with the rules
regarding the need for an authorized person to sign Differentiating Rules on Verification and
the certificate when a corporate officer, previously Certificate Against Forum Shopping (Fuji
empowered via board resolution to sign the Television Network v. Espiritu, G.R. No. 204944-45,
certification against forum shopping, executes a 2014) 
special power of attorney in favor of a manager of
the corporation, and it is the latter who signs the
verification and certificate against forum shopping.
In other words, the power granted by a corporation
to a corporate officer to sign the verification and
certificate may be further delegated, via special
power of attorney, to another. (Fuji Television
Network v. Espiritu, G.R. No. 204944-45, 2014) 
VERIFICATION CERTIFICATE
. AGAINST FORUM
Verification and Certification Against Forum SHOPPING
Shopping When Petitioner is a Government
Entity:
Where the petitioner is government entity created
by the Constitution, and headed by its Chairman,
there is no need for the Chairman himself to sign
the verification. Its representative, lawyer or any
person who personally knew the truth of the facts
alleged in the petition could sign the verification. Non-compliance or a Non-compliance or a
HOWEVER, with regard to the certification of non- defect therein does not defect therein, is
forum shopping, the established rule is that it must necessarily render the generally not curable by
be executed by the plaintiff or any of the principal pleading fatally its subsequent
parties and not by counsel. Failure to show such defective. The court submission or correction
authority to execute the petition on behalf of the may order its thereof, unless there is a
plaintiff or principal party renders the petition submission, correction need to relax the Rule
dismissible. (People v. Iroy, G.R. No. 187743, 2010) or act on the pleading on the ground of
depending on the "substantial compliance"
d. EFFECT OF THE SIGNATURE OF COUNSEL attending or presence of "special
IN A PLEADING circumstances. circumstances or
compelling reasons.
The signature of a counsel in a pleading
constitutes a certification by him/her that:
1. He/she has read the pleading;
2. That to the best of his/her knowledge,
information and belief there is good ground to
support it;
3. That it is not interposed for delay.
Substantially complied Must be signed by all
with when one who the plaintiffs in a case;

90
has ample knowledge those who did not sign i) CONDITION PRECEDENT
to swear to the truth of will be dropped as
the allegations in the parties. Under justifiable
complaint signs the circumstances, however,
verification as when all the plaintiffs
or petitioners share a
common interest and
invoke a common cause
of action or defense, the CONDITIONS PRECEDENT are matters which
signature of only one of must be complied with before a cause of action
them substantially arises. (Riano, Civil Procedure: A Restatement for
complies with the Rule. the bar, 2nd ed, 2009)

Conditions precedent and a general averment of its

occurrence must be stated in the pleading.

Otherwise, it will subject the complaint to dismissal,

even on appeal, on the ground that a condition
precedent for filing the claim has not be complied
with. (Section 1[j], Rule 16 of the Rules of Court).
4. ALLEGATIONS IN A PLEADING
Every pleading shall contain in a
methodical and logical form, a plain,
concise and direct statement of the ultimate facts
on which the party pleading relies for his claim or
defense, as the case may be, omitting the
statement of mere evidentiary facts. (Rule 8, ii) FRAUD, MISTAKE, MALICE, INTENT,
Section 1) KNOWLEDGE AND OTHER CONDITION
OF THE MIND, JUDGMENTS, OFFICIAL
a. MANNER OF MAKING ALLEGATIONS DOCUMENTS, AND ACTS

The pleading must contain only ULTIMATE FACTS,

which refer to the essential facts of the claim. It
must omit the statement of mere evidentiary facts.

The ULTIMATE FACTS are the important and

substantial facts which form the basis of the primary
right of the plaintiff and which make up the wrongful
act or omission of the defendant. If the ultimate
facts are not alleged, the cause of action would be
insufficient (Riano, Civil Procedure: A Restatement
for the bar, 2nd ed, 2009)

EVIDENTIARY FACTS – refer to those which are
necessary to prove the ultimate fact or which furnish
evidence of the existence of some other facts
In averments of fraud or mistake, the
circumstances constituting such fraud or mistake
must be stated with PARTICULARITY. Malice,
intent, knowledge or other conditions of the
mind of a person may be averred GENERALLY.
(Rule 8, Section 5)

In pleading a judgment, it is sufficient to aver the

judgment or decision without alleging matters

91
showing the jurisdiction to render judgment or
decision (Rule 8, Section 6)
In pleading a document or an act, it is sufficient to
aver that the document or act was issued or done in
compliance with law. (Rule 8, Section 9)
Facts that May be Averred Generally
1. Conditions precedent (BUT there must still be an
allegation that the specific condition precedent
has been complied with, otherwise, it will be
dismissed); (Section 3)
2. Capacity to sue or be sued; (Section 4)
3. Capacity to sue or be sued in a representative
capacity; (Section 4)
4. Legal existence of an organization (Section 4)
5. A party desiring to raise an issue as to the legal
existence or capacity of any party to sue or be
sued in a representative capacity shall do so by
SPECIFIC DENIAL which shall include
supporting particulars within the pleader’s
knowledge.
6. Malice, intent, knowledge, or other condition of
the mind; (Section 5)
7. Judgments of domestic or foreign courts,
tribunals, boards, or officers (no need to show
jurisdiction); and (Section 6)
8. Official document or act. (Section 9)
Facts that must be averred particularly
Circumstances showing FRAUD or MISTAKE in all
averments of fraud or mistake. (Section 5)
b. PLEADING AN ACTIONABLE DOCUMENT
An ACTIONABLE DOCUMENT refers to a written
instrument upon which the action or defense is
based.
Pleading an Actionable Document: The Pleader
Must
1. Set forth in the pleading the substance of the
instrument or the document, and to attach the
original or the copy of the document to the pleading
as an exhibit and which shall form part of the
pleading; or
2. Set forth in the pleading said copy of the
instrument or document (Section 7, Rule 8 of the
Rules of Court)
How to Contest an Actionable Document
1. By specific denial under oath; and
2. By setting forth what is claimed to be the facts.
Where the Actionable Document is Properly
Alleged, the Failure to Specifically Deny UNDER
OATH the Same Results in:
1. The admission of the genuineness and due
execution of said document, EXCEPT that an
oath is NOT required:
a. When the adverse party was not a party to
the instrument; or
b. When compliance with an order for an
inspection was refused.
2. The document need not be formally offered in
evidence. For it may be considered an admitted
fact. (Philamgen v. Sweet Lines, G.R. No.
87434, 1992)
Even documents submitted in an Answer must be
specifically denied under oath in a Reply, or else
the genuineness and due execution of the
documents attached to the Answer are deemed
admitted. This is the case even if it is true that a
Reply is generally optional. Thus, where a plaintiff
fails to file a Reply with specific denials under oath
of documents attached in the Answer, his failure
constitutes a judicial admission which should be
considered by the judge, even in resolving a
demurrer to evidence. (Casent Realty v.
Philbanking, G.R. No. 150731, 2007)
GENUINENESS Means that the Instrument is
1. Not spurious, counterfeit, or of different import
on its face from the one executed by the party or
92
2. That the party whose signature it hears has
signed it
3. That at the time it was signed, it was in words
and figures exactly as set out in the pleadings.
DUE EXECUTION Means that the Document Was
1. Signed voluntarily and knowingly by the party
whose signature appears thereon,
2. If signed by somebody else such representative
had the authority to do so,
3. It was duly delivered, and that the formalities
were complied.
The Following Defenses are NOT Waived
Despite Failure to Deny under Oath:
1. Payment;
2. Want or illegality of consideration;
3. Fraud;
4. Mistake;
5. Compromise;
6. Statute of Limitations;
7. Estoppel;
8. Duress; and
9. Minority or imbecility.
The aforementioned defenses are NOT inconsistent
with the genuineness and due execution of the
document.
The Following Defenses are Waived:
1. Forgery in the signature;
2. Unauthorized signature, as in the case of an
agent signing for his principal;
3. The corporation was not authorized under its
charter to sign the instrument;
4. Want of delivery; or
5. At the time the document was signed, it was not
in words and figures exactly as set out in the
pleading.
Failure to specifically deny under oath the
genuineness and due execution of an actionable
document generally implies an admission of the
same by the other party. However, such IMPLIED
ADMISSION IS DEEMED WAIVED if the party
asserting the same has allowed the adverse party
to present evidence contrary to the contents of such
document without objection. (Central Surety v.
Hodges, G.R. No. L-28633, 1971)
c. SPECIFIC DENIALS
Types of Specific Denials:
1. ABSOLUTE DENIAL – The defendant specifies
each material allegation of fact the truth of which
he does not admit and, whenever practicable,
sets forth the substance of the matters upon
which he relies to support his denial. (Rule 8,
Section 10)
2. PARTIAL DENIAL – The defendant specifies
the part of truth of which he admits and denies
only the remainder.
3. DENIAL BY DISAVOWAL OF KNOWLEDGE –
The defendant alleges that he is without
knowledge or information to form a belief as to
the truth of a material averment made in the
complaint. This must be made sincerely and in
good faith.
In a case where a copy of the mortgage deed is
attached to the complaint, it is error for the
defendants, in their answer, to deny the underlying
debt by saying that they “are without knowledge or
information sufficient to form a belief as to the truth
of the material averments.” Since a copy of the
deed was given to the defendants, it was within
their power to thoroughly attack the complaint on
the basis of more specific denials, rather than a
general denial claiming lack of knowledge as to the
truth. The rule, which specifically authorizes an
answer of the defendant that he has no knowledge
or information sufficient to form a belief to the truth
of an averment and which would have an effect of a
denial, does not apply where the fact as to which
want of knowledge is asserted is to the knowledge
of the court as plainly and necessarily within the
defendant’s knowledge that his averment of
ignorance must be palpably untrue. (Warner Barnes
v. Reyes, G.R. No. L-9531, 1958)
Where an answer states that the defendants
“specifically deny the allegations in pars. 2 and 3 of
the complaint for want of knowledge or information
sufficient to form a belief as to the truth thereof, the
truth of the matter being those alleged in the special
and affirmative defenses of the defendants...," this
is considered a valid denial, as the explanation is
93
said to be provided for in the affirmative and special
defenses. (Gaza v. Lim, G.R. No. 126863, 2003)
When a Specific Denial Does NOT Require an
Oath
1. The adverse party does not appear to be a party
to the document;
2. Compliance with an order for an inspection of
the original document is refused. (Rule 8,
Section 8)

(i) EFFECT OF FAILURE TO MAKE A Striking Out of Pleading or Matter Contained

SPECIFIC DENIAL therein is initiated
1. Upon motion by a party before responding to a
pleading;
2. Upon motion by a party within 20 days after
service of the pleading upon him if no
responsive pleading is permitted; or
3. Upon court’s own initiative at any time.

General Rule: Allegations NOT specifically denied Allegations of merely evidentiary or immaterial facts
are deemed admitted. may be expunged from the pleading or may be
stricken out upon motion.
Exceptions:
1. Allegations as to the amount of unliquidated 5. EFFECT OF FAILURE TO PLEAD
damages;
2. Allegations immaterial as to the cause of action; a. FAILURE TO PLEAD DEFENSES AND
and OBJECTIONS (Implied Admissions)
3. Conclusion of law.
General Rule: Defenses and objections not
pleaded either in a motion to dismiss or in the
answer are deemed waived. (Rule 9, Section 1)

Exceptions:
Grounds Not Deemed Waived (LLRP)
1. Lack of jurisdiction over the matter;
(ii) WHEN A SPECIFIC DENIAL REQUIRES 2. Litis pendentia;
AN OATH 3. Res judicata or
4. Prescription (Statute of limitations)

1. Denial of an actionable document (Rule 8,

Section) b. FAILURE TO PLEAD A COMPULSORY
2. Denial of allegations of usury in a complaint to COUNTERCLAIM OR CROSS-CLAIM
recover usurious interest (Rule 8, Section 11)

94
A compulsory counterclaim, or cross-claim, not set
up at the time a defending party files his answer,
shall be BARRED.
An AMENDED ANSWER is proper if the
counterclaim or cross claim ALREADY EXISTED at
the time the original answer was filed, but due to
oversight, inadvertence, or excusable neglect, it
was not set up.
A SUPPLEMENTAL ANSWER is proper if the
counterclaim or cross-claim matures or is acquired
AFTER the answer is filed.
6. DEFAULT
DEFAULT (Rule 9)
Procedural concept when the defending party fails
to file his ANSWER within the reglementary period.
It does not occur from the failure of the defendant to
attend
The defendant’s non-appearance in the hearing and
the failure to adduce evidence does NOT constitute
default when an answer has been filed within the
reglementary period. Instead, it amounts to a waiver
of the defendant’s right to object to the evidence
presented during such hearings and to cross-
examine the witness presented. (Monzon v. Sps
Relova v. Addio Properties, G.R. No. 17182, 2008)
a. WHEN A DECLARATION OF DEFAULT IS
PROPER
Requisites Before a Party May be declared in
Default:
1. There must be a MOTION TO DECLARE the
defendant in default;
2. Summons has been validly and previously
SERVED upon him
3. Defendant FAILS TO ANSWER within the time
allowed therefore;
4. There must be PROOF of such failure to
answer.
5. There must be NOTICE to the defendant by
serving upon him a copy of such motion; and
6. There must be a HEARING of the motion to
declare the defendant in default (Riano, Civil
Procedure: A Restatement for the bar, 2nd ed,
2009)
The following are the remedies of a party declared
in default:
1. Before judgment: motion under oath to set aside
order of default when failure to answer is based
on fraud, accident, mistake, excusable
negligence and the defendant has a meritorious
defense
2. Before judgment becomes final and executor:
motion for new trial
3. When judgment is final and executor: petition for
relief
4. Appeal judgment rendered against him as
contrary to evidence or law
5. Petition for certiorari to declare nullity of judgment
by default (Gomez v. Montalban, G.R. No.
174414, 2008)
The court has NO authority to motu proprio declare
the defendant in default. A MOTION to declare the
defending party MUST BE FILED by the claiming
party before a declaration of default is made by the
court. (Rule 9, Section 3)
Filing a motion to dismiss or a motion for a bill of
particulars will interrupt the running of the period to
file an answer. Thus, if these two motions are filed,
a defendant may NOT be declared in default
pending the resolution of these two motions.
General Rule: A default order and consequently, a
default judgment are triggered by the failure to file
the required answer by the defending party.
Exceptions:
Despite an answer being filed, a JUDGMENT BY
DEFAULT may still be rendered in the following
circumstances
1. If a party refuses to obey an order requiring him
to comply with the various modes of discovery;
or
95
2. If a party of officer or managing agent of a party A motion for new trial was filed with the reason
willfully fails to appear before the officer who is that the counsel employed by Perfecta was only
to take his deposition representing her and not her brothers and the
court approved this motion.
In the new trial, the brothers presented Perfecta
as a witness but the defendants opposed this
stating that since Perfecta is already declared in
ORDER OF DEFAULT JUDGMENT BY default, she cannot participate in the case any
DEFAULT capacity, even as a witness.
The court ruled for the brothers. “Loss of
Issued by the court Rendered by a court Pending” must only mean the forfeiture of one’s
upon plaintiff’s motion after a default order right as a party litigant, contestant or legal
for failure of the has been issued or adversary.
defendant to file his after it has received, ex
responsive pleading parte, plaintiff’s
within the evidence While the defendant can no longer take part in the
reglementary period trial, he is nevertheless entitled to notices of
subsequent proceedings. He may participate in the
trial not as a party but as a witness. (Cavili v.
Florendo, 9 October 1987, 154 SCRA 610)
Interlocutory Order – Final Order -
Not appealable Appealable A Party in Default is entitled to Notice of
1. Motion to declare him in default;
2. Order declaring him in default;
3. Subsequent proceedings; and
4. Service of final orders and judgments.

A declaration of default is NOT an admission of the

Failure to File an Answer in a Summary
Proceeding
The defendant who fails to file an answer
seasonably is NOT supposed to be declared in
default. Instead, the court, motu proprio OR upon
motion of the plaintiff, shall render judgment as may
be warranted by the facts alleged in the complaint
and limited to what is prayed for.
b. EFFECT OF AN ORDER OF DEFAULT
The Court may, upon its own discretion:
1. Proceed to render judgment; OR
2. Require the plaintiff to present his evidence ex
parte according to judicial discretion. The
reception of the evidence may be done by the
court or delegated to the clerk of court.
truth or the validity of the plaintiff’s claims. (Monarch
Insurance v. CA, G.R. No. 92735, 2000)
Complainants are not automatically entitled to the
relief prayed for, once the defendants are declared
in default. Favorable relief can be granted only after
the court has ascertained that the relief is warranted
by the evidence offered and the facts proven by the
presenting party. Quantum of proof of plaintiff
remains the same even with defendant’s default.
(Gajudo v. Traders Royal Bank, G.R. No. 151098,
2006)
Default should be treated as the exception rather
than the rule because the policy of the law is to
have every litigant’s case tried on the merits as
much as possible.

The party declared in default LOSES his standing
in court.
Perfecta Cavili and her brothers were involved
in a case for the partition, accounting and
damages and they were declared in default due
to their failure to file an answer within the
prescribed period.
c. RELIEF FROM AN ORDER OF DEFAULT
After Notice of Order and Before Judgment
The defendant must file a MOTION TO SET ASIDE
ORDER OF DEFAULT under oath and show that
1. The failure to answer was due to fraud, accident,
mistake or excusable negligence and that;

96
2. The defendant has a meritorious defense –
affidavit of merit
After Judgment and Before Judgment Becomes
Final and Executory
The defendant may file a MOTION FOR NEW
TRIAL under Rule 37 of the Rules of Court. He may
also appeal from the judgment as being contrary to
the evidence or the law.
After Judgment Becomes Final and Executory
File a PETITION FOR RELIEF OF JUDGMENT
under Rule 38 of the Rules of Court.
d. EFFECT OF A PARTIAL DEFAULT
Partial Default
1. The default asserting a claim states a common
cause of action against several defending
parties;
2. Some of the defending parties answer and the
others fail to do so; and
3. The answer interposes a common defense.
Effect of Partial Default
When a pleading asserts a claim against several
defending parties and some file and serve their
answers but the others do not, the court shall try the
case against ALL the defending parties based on
the answers filed and render judgment upon the
evidence presented where the claim states a
common cause of action against them. (Rule 9,
Section 3)
e. EXTENT OF RELIEF
A Judgment Rendered Against a Party Declared
in Default Shall NOT
1. Exceed the amount prayed for;
2. Be different in kind from that prayed for;
3. Award unliquidated damages.
f. ACTIONS WHERE DEFAULT IS NOT
ALLOWED
1. Annulment of marriage;
2. Declaration of nullity of marriage;
3. Legal Separation;
4. Special civil actions of certiorari, prohibition and
mandamus where comment instead of an
answer is required to be filed; and
5. Summary procedure.
7. FILING AND SERVICE OF
PLEADINGS
FILING
The act of presenting the pleading or other papers
to the CLERK OF COURT. (Rule 13, Section 2) For
the purpose of filing, the original must be presented
personally to the clerk of court or by sending the
same by registered mail. (Rule 13, Section 3)
SERVICE
The act of providing a party with a COPY of the
pleading or paper concerned.
The Following Papers Are required to be FILED
in Court and SERVED upon the parties affected:
1. Judgments;
2. Resolutions;
3. Orders;
4. Pleadings subsequent to the complaint;
5. Written motion;
6. Notices;
7. Appearances;
8. Demands;
9. Offers of judgment; and
10. Similar papers. (Rule 13, Section 4)
a. PAYMENT OF DOCKET FEES
The payment of the docket fee vests the court with
jurisdiction over the subject matter.
The court requires that all complaints, petitions,
answers, and similar pleadings must specify the
amount of damages being prayed for both in the
body of the pleading and in the prayer. (Manchester
Development Corp v. CA, G.R. No. 75919, 1987)
Any defect in the original pleading resulting in the
underpayment of the docket fee cannot be cured by
amendment, such as by the reduction of the claim
97
 Modes of Filing Judgment, pleadings
1. Personally to the and orders are served
clerk of court; or to counsel, EXCEPT:
as, for all legal purposes, there is no original 2. Sending them by 1.When he has no
complaint over which the court has acquired registered mail counsel;
jurisdiction. 2.When counsel of
record can’t be
Plainly, while the payment of the prescribed docket located; or
fee is a jurisdictional requirement, even its non- 3.When party himself
payment at the time of filing does not automatically is directed by court to
cause the dismissal of the case, as long as the fee show cause (e.g.
is paid within the applicable prescriptive or contempt)
reglementary period, more so when the party
involved demonstrates a willingness to abide by the *If represented by 2
rules prescribing such payment. (Heirs of Bertuldo counsels, notice may
Hinog v. Hon. Achilles Melicor, G.R. No. 140954, be served upon both or
2005) either of them

b. FILING VERSUS SERVICE OF PLEADINGS Modes of Service

1. Personally;
2. Mail; or
3. Substituted service

FILING OF SERVICE OF
PLEADINGS PLEADINGS
Act of presenting the Act providing a party
pleading or other paper with a copy of the
to the clerk of court pleading or paper
concerned

c. PERIODS OF FILING OF PLEADINGS

ANSWER TO COMPLAINT
The defendant shall file his answer to the complaint
within fifteen (15) days after service of summons,
unless a different period is fixed by the court.

Where the Defendant is a Foreign Private

Juridical Entity
1. Within fifteen (15) days after service of
summons if there exists a resident agent.
2. Within fifteen (15) days after service of
summons if there is no resident agent but there
is an agent or officer in the Philippines.
3. Within thirty (30) days after receipt of summons
by the home office of the foreign private entity if

98
 there is no resident agent nor agent or officer in
the Philippines and summons is made to the
proper government office which is tasked to
send a copy of such to the home office of the
foreign private entity.
If the service of summons was made by publication,
within the time specified in the order granting leave
to serve summons by publication, which shall not be
less than sixty (60) days after notice.
If the service of summons was made by
extraterritorial service to a non-resident defendant,
the period to answer should be at least sixty (60)
days.
ANSWER TO AMENDED COMPLAINT
1. Where the plaintiff files an amended complaint
as a matter of right, the defendant shall answer
the same within fifteen (15) days after
being served with a copy thereof.
2. Where filing is NOT a matter of right, the
defendant shall answer the amended complaint
within ten (10) days from notice of the Order
admitting the same. An answer earlier filed may
serve as the answer to the amended complaint,
if no new answer is filed.
COUNTERCLAIM OR CROSS-CLAIM
A counterclaim or cross-claim must be answered
within ten (10) days from service.
THIRD-PARTY COMPLAINT
The time to answer a third (fourth, etc.)—party
complaint shall be governed by the same rule as
the answer to the complaint.
REPLY may be filed within ten (10) days from
service of the pleading responded to.
ANSWER TO SUPPLEMENTAL COMPLAINT
A supplemental complaint may be answered within
ten (10) days from notice of the order admitting the
same, unless a different period is fixed by the
court.
The answer to the complaint shall serve as the
answer to the supplemental complaint if no new or
supplemental answer is filed.
Extension of Time to Plead
1. There must be a motion;
2. With service of such motion to the other party;
and
3. On such terms as may be just.
d. MANNER OF FILING
Two Modes of Filing
1. By filing personally to the clerk of court
2. By registered mail.
Pleadings subsequent to original complaint and
written motions should first be served on the parties
before they are filed with court.
The filing of pleadings, appearances, motions,
notices, orders, judgments, and all other papers
shall be made by presenting the original copies.
Failure to comply with the requirement that the
petition be accompanied by a duplicate original or
certified true copy of the judgment, order, resolution
or ruling being challenged is sufficient ground for
the dismissal of said petition. (William Golangco
Construction Corporation v. Ray Burton
Development Corporation, G.R. No. 163582, 2010)
When a pleading is sent through private courier, the
date of actual receipt of the Court is considered as
the date of filing. (Heirs of Miranda v. Miranda, GR
No. 179638, 2013)
e. MODES OF SERVICE
(i) PERSONAL SERVICE
The preferred mode of service. If another mode of
service is used (other than personal service), the
service must be accompanied by a written
explanation why the service of filing was not done
personally.
How Personal Service is made
99
1. Delivering personally a copy to the party who is of failure of both personal service and service by
not represented by a counsel, or to his counsel; mail.
or
2. Leaving a copy in counsel’s office with his clerk
or with a person having charge thereof; or
3. If no person is found in his office, or if his office
is unknown, or if he has no office – by leaving
the copy between 8 a.m. to 6 p.m. at the party’s
or counsel’s residence, if known, with a person
of sufficient age and discretion then residing (iv) SERVICE OF JUDGMENTS, FINAL
therein. ORDERS, AND RESOLUTIONS

Failure to comply with the explanation requirement

may be cause for the paper to be considered as
NOT having been filed.

How Made
1. By personal service
2. By registered mail
3. By publication
(ii) SERVICE BY MAIL 4. NO substituted service.

The preferred service by mail is by REGISTERED (v) PRIORITIES IN MODES OF SERVICE

MAIL. Service by ordinary mail may be done only if AND FILING
no registry service is available in the locality of
either the sender or the addressee.

Whenever practicable, the service and filing of

pleadings and other papers shall be done
(iii) SUBSTITUTED SERVICE personally.

If service of pleadings, motions, notices, (vi) WHEN SERVICE IS DEEMED

resolutions, orders and other papers cannot be COMPLETE
made in either personal service or registered mail,
the office and place of residence of the party or his
counsel being unknown, service may be made by
delivering the copy to the clerk of court, with proof

100
 Ordinary Affidavit of the
Mail person mailing
of the facts
showing
1. PERSONAL SERVICE - Upon actual delivery compliance
2. ORDINARY MAIL - Upon expiration of 10 days with Section 7,
after mailing Rule 13 of the
3. REGISTERED MAIL - Upon actual receipt by Rules of Court
the addressee OR five (5) days from the date he
received first notice from postmaster
4. SUBSTITUTED SERVICE - At the time of such
delivery of the copy to the clerk of court
Registered 1. The registry 1. The registry
Mail receipt; and receipt; and
2. By the 2. By the
affidavit of the affidavit of the
person who did person who
the mailing. did the mailing.
The affidavit The registry
must: return card
(vii) PROOF OF FILING AND SERVICE
1. Contain a full shall be filed
statement of the immediately
date and place upon its
of depositing the receipt by the
mail in the post sender, or in
office lieu thereof of
2. In a sealed the unclaimed
envelope letter together
addressed to the with the
court certified or
3. With postage sworn copy of
PROOF OF PROOF OF
fully prepaid; the notice
FILING SERVICE
and given by the
4. With postmaster to
Personal The filing of a 1.Written instructions to the addressee.
Service pleading or admission of the postmaster
paper shall be the party to return the mail
proved by its served; or to the sender
existence in the 2. Official after ten (10)
record of the return of the days if not
case. server; or delivered.
If Not in the 3. Affidavit of
Record the party
Written or serving,
stamped containing full
acknowledgment information of
of its filing by the the date, place
clerk of court on and manner of
a copy of the service.
same

101

8. AMENDED AND SUPPLEMENTAL
PLEADINGS (Rule 10)
Amendments, in General
Proper when there is an event that was not alleged
in the pleadings due to inadvertence, oversight,
etc., but happened before its filing.
Pleadings MAY be Amended By:
1. Adding or striking out an allegation of a party;
2. Adding or striking out the name of a party;
3. Correcting a mistake in the name of a party; and
4. Correcting a mistake or inadequate allegation or
description in any other respect.
a. AMENDMENT AS A MATTER OF RIGHT
A party may amend his pleading ONCE as a matter
of right. Subsequent amendments must be WITH
LEAVE of court.
It may be exercised at ANY time BEFORE a
responsive pleading is SERVED. In the case of a
reply it may be amended at any time within ten (10)
days after it is SERVED. (Rule 10, Section 2)
Pleader has a right to amend his complaint before a
responsive pleading is served even if it is to correct
a jurisdictional defect.
Instances Where Amendment is a Matter of
Right
1. A COMPLAINT may be amended before an
answer is served (regardless of whether a new
cause of action or change in theory is introduced
– thus, MAY be substantial)
2. An ANSWER may be amended before a reply is
served upon the defendant
3. A REPLY may be amended any time within ten
(10) days after it is served;
A defect in the designation of the parties and other
clearly clerical or typographical errors may be
summarily corrected by the court at any stage of the
action, at its initiative or on motion, provided no
prejudice is caused thereby to the adverse party.
(Section 4, Rule 10)
Section 2 Rule 10 refers to an amendment made
before the trial court and NOT to amendments
before the Court of Appeals. The Court of Appeals
is vested with jurisdiction to admit or deny amended
petitions filed before it (Navarro v. Vda De Taroma,
G.R. No. 160214, 2005)
If a motion to dismiss is filed, an amendment to the
complaint would still be a matter of right during the
pendency of the motion to dismiss. Such a motion
is NOT a responsive pleading. (Paeste v. Jaurigue,
G.R. No. L-5711, 1953). Even if the motion to
dismiss is granted by the court, the plaintiff may still
amend the complaint as a matter of right before
such dismissal becomes final.
Before the filing of any responsive pleading, a
party has the absolute right to amend his pleading,
regardless of whether a new cause of action or
change in theory is introduced.   It is settled that a
motion to dismiss is not the responsive pleading
contemplated by the Rule. (Bautista v. Maya-Maya
Cottages, G.R. No. 148361, 2005)
The plaintiff may amend his complaint once as a
matter of right, i.e. without leave of court, before any
responsive pleading is filed or served. Responsive
pleadings are those which seek affirmative relief
and/or set up defenses, like an answer. A motion to
dismiss is not a responsive pleading for purposes of
Section 2 of Rule 10. (Marcos-Araneta v. Court of
Appeals, G.R. No. 154096, 2008)
It is erroneous for a court to refuse an amendment
exercised as a matter of right and this error may be
corrected by mandamus.
b. AMENDMENTS BY LEAVE OF COURT
Leave of Court is required
1. If the amendment is substantial; and
2. A responsive pleading had already been served.
Requisites
1. There must be a motion filed in court;
2. Notice to the adverse party; and
3. Opportunity to be heard afforded to the adverse
party.
Substantial amendments can be done with leave of
court. It can substantially alter the cause of action or
the defenses with leave of court. (PPA v. Gothong
and Aboitiz, G.R. No. 158401, 2008)
Amendment by Leave of Court may NOT be
Allowed When
102
1. When cause of action, defense or theory of the
case is changed;
2. Amendment is intended to confer jurisdiction to
the court;
3. Amendment to cure a premature or non-existing
cause of action; and
4. Amendment for purposes of delay.
After a responsive pleading has been served, a
complaint cannot be amended to confer jurisdiction
on the court in which it is filed, if the cause of action
originally set forth was not within the court's
jurisdiction. (Campos Rueda Corporation v.
Bautista, G.R. No. L-18453, 1962)
c. FORMAL AMENDMENT
A defect in the designation of the parties and other
clearly CLERICAL or TYPOGRAPHICAL errors may
be summarily corrected by the court at ANY stage
of the action, at its initiative or on motion, provided
so prejudice is caused thereby to the adverse party.
(Section 4, Rule 10)
(Swagman Hotels and Travel Inc., v. CA, G.R. No.
161135, 2005)
d. DIFFERENCE FROM SUPPLEMENTAL
PLEADINGS
SUPPLEMENTAL PLEADINGS
Set forth transactions, occurrences or events which
have happened since the date of the pleading
sought to be supplemented.
The cause of action stated in the supplemental
pleading is thus the SAME as that stated in the
original. The supplemental pleading is only a
CONTINUATION of the primary pleading as it only
serves to bolster or add something to it.
The adverse party MAY plead thereto within ten
(10) days from notice of the order admitting the
supplemental pleading. Thus, it is NOT mandatory
for an answer to be filed to a supplemental
complaint.

c. AMENDMENTS TO CONFORM TO OR Additional filing fees are due to a supplemental

AUTHORIZE PRESENTATION OF EVIDENCE complaint and it is not for the party or the trial court
to waive such payment. Failure to pay filing fees for
When Issues Not Raised by the Pleadings Are supplemental complaint is fatal only for the
Tried With the Express or Implied Consent of supplemental complaint. The original complaint is
the Parties not affected (Do-All Metals Industries Inc., v.
1. They shall be treated in all respects as if they Security Bank, G.R. No. 176339, 2011)
had been raised in the pleadings.
2. Such amendment of the pleadings as may be
necessary to cause them to conform to the
evidence may be made upon motion of any
party at any time, even after judgment.
3. BUT failure to amend does NOT affect the result
of the trial of these issues.

If Evidence is objected to at the Trial on the

Ground That it is Not Within the Issues Made by
the Pleadings AMENDED SUPPLEMENTAL
1. The court may allow the pleadings to be PLEADING PLEADING
amended.
2. It shall do so with liberality if the presentation of Refers to facts Refers to facts arising
the merits of the action and the ends of existing at the time of AFTER the filing of the
substantial justice will be sub served thereby. the commencement original pleading
3. The court may grant a continuance to enable the of the action
amendment to be made. (Rule 10, Section 5)
Takes the place of Taken TOGETHER with
This also covers situations where a complaint
the original pleading the original pleading
insufficiently states the cause of action. Such
insufficiency may be cured by evidence presented
during the trial without objection. However, this is
applicable only if a cause of action in fact exists at
the time the complaint is filed, but the complaint is
defective for failure to allege the essential facts.

103
Can be made as a Always WITH leave of
matter of right as court
when no responsive
pleading has yet been responsive pleading), the amended complaint may
filed be served upon them without need of another
summons EVEN IF new causes of action are
alleged.
When an amended A supplemental
pleading is filed, a pleading does not END OF TOPIC
new copy of the entire require the filing of a
pleading must be filed new copy of the entire
pleading

Filing of Amended Pleadings F. SUMMONS

When any pleading is amended, a new copy of the (Rule 14)
entire pleading, incorporating the amendments,
which shall be indicated by the appropriate marks,
shall be filed.

e. EFFECT OF AMENDED PLEADING

An amended pleading supersedes the pleading that

it amends.
1. NATURE AND PURPOSE OF
However, admissions in superseded pleadings may SUMMONS IN RELATION TO
be received in evidence against the pleader; and
ACTIONS IN PERSONAM, IN REM
claims or defenses alleged therein not incorporated
in the amended pleading shall be deemed waived. AND QUASI IN REM
2. VOLUNTARY APPEARANCE
The original complaint is deemed superseded and 3. PERSONAL SERVICE
abandoned by the amendatory complaint only if the 4. SUBSTITUTED SERVICE
latter introduces a new or different cause of action.
(Verzosa v. CA, G.R. No. 119511, 1998) 5. CONSTRUCTIVE SERVICE (BY
PUBLICATION)
Admissions made in the original pleadings are
considered as EXTRAJUDICIAL admissions.
However, admissions in superseded pleadings may
be received in evidence against the pleader as long
as they are formally offered in evidence (Rule 10,
Section 8)
a. Service upon a defendant where his
Effect of Amendment of Complaint on the identity is unknown or where his
Requisite of Service of Summons whereabouts are unknown
If new causes of action are alleged in the amended b. Service upon residents temporarily
complaint filed BEFORE the defendant has outside the Philippines
appeared in court, another summons must be
served on the defendant with the amended
complaint.

However, if the defendants have ALREADY

APPEARED before the court by virtue of summons
in the original complaint (e.g., by filing an entry of
appearance or motion for extension of time to file a

104
6. EXTRA-TERRITORIAL SERVICE,
WHEN ALLOWED
7. SERVICE UPON PRISONERS AND
MINORS
8. PROOF OF SERVICE
1. NATURE AND PURPOSE OF
SUMMONS IN RELATION TO
ACTIONS IN PERSONAM, IN REM
AND QUASI IN REM
Summons
A writ by which the defendant is notified of the
action brought against him/her. Service of such writ
is the means by which the court may acquire
jurisdiction over his/her person. (Cano-Gutierrez v.
Gutierrez, G.R. No. 138584, 2000)
NON-SERVICE OR IRREGULAR SERVICE OF
SUMMONS may be a ground for dismissal for lack
of jurisdiction over the person of the defending
party.
Service of such writ is the means by which the court
acquires jurisdiction over his person. Any judgment
without such service in the absence of a valid
waiver is null and void. (Gomez v. Court of
Appeals, G.R. No. 127692, 2004)
The Clerk of Court Shall Issue the Summons to
the Defendant Upon
1. Filing of the complaint; and
2. Payment of the requisite legal fees.
Contents of Summons
1. Name of the court & names of the parties to the
action;
2. Direction that defendant answer within the time
fixed by these Rules; and
3. Notice that unless the defendant so answers,
plaintiff will take judgment by default and may be
granted the relief applied for.
NOTE: A copy of the complaint and order for
appointment of guardian ad litem if any shall be
attached to the original and each copy of the
summons.
Nature
The issuance of summons by the Clerk of Court is
MANDATORY upon the filing of the complaint and
payment of requisite legal fees (Riano, Civil
Procedure: A Restatement for the Bar, 2nd Edition,
2009)
Summons May be Served ONLY by
1. Sheriff;
2. Sheriff’s deputy; or
3. Other proper court officers; or
4. For justifiable reasons, by any suitable person
authorized by the court issuing the summons
ALIAS SUMMONS
One issued by the clerk of court on demand of the
plaintiff when the original summons was returned
without being served on any or all of the
defendants, or when summons has been lost. When
issued, it supersedes the first summons.
RETURN
When the service has been completed, the server
shall, within five (5), serve a copy of the return, to
the plaintiff's counsel, and shall return the summons
to the clerk, who issued it, accompanied by proof of
service.
SUMMONS IN ACTIONS IN PERSONAM
Purpose
1. Notify defendant of action against him/her; and
2. Acquire jurisdiction over defendant’s person in a
civil case
Jurisdiction over the defendant, without service of
summons, cannot be acquired even if the defendant
has knowledge of the case against him. (Habana v.
Vamenta, G.R. No. L-27091, 1970)
Even if jurisdiction was not originally acquired due
to defective service of summons, court acquires
jurisdiction over his person by his act of
subsequently filing a motion for reconsideration.
(Soriano v. Palacio, G.R. No. L-17469, 1964)
In case of death of defendant before the service of
summons, the 1976 en banc decision in the case of
Dumlao v. Quality Plastic Products Inc., G.R. No. L-
27956, 1976, held that:
“The lower court's judgment against deceased is
void for lack of jurisdiction over his person.
Deceased was not, and could not have been, validly
served with summons. He had no more civil
personality. His juridical capacity, which is the
105
fitness to be the subject of legal relations, was lost
through death.”
SUMMONS IN ACTIONS IN REM AND QUASI IN
REM
The purpose of the summons is to satisfy the
constitutional requirement of due process
It is done NOT to acquire jurisdiction over the
defendant; in actions in rem and quasi in rem, the
court CAN acquire jurisdiction by acquiring
jurisdiction over the RES (the thing).
In actions in rem or quasi in rem, jurisdiction over
the person of the defendant is not a prerequisite to
confer jurisdiction on the court provided that the
court acquires jurisdiction over the RES, although
summons must be served upon the defendant in
order to satisfy the due process requirements.
[Gomez v. Court of Appeals, G.R. No. 127692,
March 10, 2004]
Jurisdiction Over the Res is Acquired Either
1. By the seizure of the property under legal
process, whereby it is brought into actual
custody of the law; or
2. As a result of the institution of legal proceedings,
in which the power of the court is recognized
and made effective.
2. VOLUNTARY APPEARANCE
General Rule: Voluntary appearance is equivalent
to service of summons.
Exception:
Filing a motion to dismiss on the ground of lack of
jurisdiction is NOT considered as voluntary
appearance.
Inclusion in motion to dismiss of other grounds
aside from lack of jurisdiction over person of
defendant shall NOT be deemed as voluntary
appearance.
It is settled that a party who makes a special
appearance in court for the purpose of challenging
the jurisdiction of said court, based on the invalidity
of the service of summons, cannot be considered to
have voluntarily submitted himself to the jurisdiction
of the court. (Perkin Elmer Singapore Pte Ltd. v.
Dakila Trading Corporation, G.R. No. 172242,
2007)
3. PERSONAL SERVICE
When Required
Personal service is MANDATORY in actions in
personam to acquire jurisdiction over person of
defendant.
In an action strictly in personam, personal service
on the defendant is the preferred mode of service,
that is, by handing a copy of the summons to the
defendant in person. (Imelda Manotoc v. Court of
Appeals, G.R. No. 130974, 2006)
Sheriffs are asked to discharge their duties on the
service of summons with due care, utmost
diligence, and reasonable promptness and speed
so as not to prejudice the expeditious dispensation
of justice. Thus, they are enjoined to try their best
efforts to accomplish personal service on
defendant. On the other hand, since the defendant
is expected to try to avoid and evade service of
summons, the sheriff must be resourceful,
persevering, canny, and diligent in serving the
process on the defendant. (Constantino Pascual v.
Lourdes Pascual, G.R. No. 171916, 2009)
How Served
1. By handing a copy thereof to the defendant in
person
2. If he/she refuses to receive and sign for it,
summons will be tendered by server to
defendant.
A summons may be served personally wherever the
defendant is found within the Philippine. As stated
in Sansio Philippines Inc. v Sps, Mogol, G.R. No.
177007, 2009, “Section 6, Rule 14 of the Rules of
Court does not require that the service of summons
on the defendant in person must be effected only at
the latter’s residence as stated in the summons. On
the contrary, said provision is crystal clear that,
whenever practicable, summons shall be served by
handing a copy thereof to the defendant; or if he
refuses to receive and sign for it, by tendering it to
him. Nothing more is required.”
Tender is part of service of summons and NOT a
separate mode of service. (Riano, Civil Procedure:
A Restatement for the Bar, 2nd ed, 2009)
Against a NONRESIDENT, jurisdiction over the
defendant is acquired by service upon his person
106
while said defendant is within the Philippines. If
the non-resident defendant is not in the Philippines,
and the action is an action in personam, Philippine
courts cannot acquire jurisdiction over the
defendant.
4. SUBSTITUTED SERVICE
Substituted service can only be made if personal
service CANNOT be made within a reasonable time
for justifiable causes.
For Substituted Service of Summons to be valid,
the following MUST be demonstrated
1. That personal service of summons within a
reasonable time was impossible;
2. That efforts were exerted to locate the party;
and
3. That the summons was served upon a person
of sufficient age and discretion residing at the
party's residence or upon a competent person
in charge of the party's office or regular place of
business.
It is likewise required that the pertinent facts proving
these circumstances be stated in the proof of
service or in the officer's return.” (Sagana v.
Francisco, G.R. No.161952, 2009)
The failure to comply faithfully, strictly and fully with
all the foregoing requirements of substituted service
renders the service of summons ineffective. (San
Pedro v. Ong, G.R. No. 177598, 2008)
Without specifying the details of the attendant
circumstances or of the efforts exerted to serve the
summons, a general statement that such efforts
were made will not suffice for purposes of
complying with the rules of substituted service of
summons. (Guiguinto Credit Cooperative, Inc. v.
Torres, G.R. No. 170926, 2006)
Substituted service as the normal mode of service
for residents temporarily out of the Philippines.
(Leah Palma v. Danilo Galvez, G.R. 165273, 2010)
A plain and simple reading of the above provisions
indicates that personal service of summons should
and always be the first option, and it is only when
the said summons cannot be served within a
reasonable time can the process server resort to
substituted service. (Constantino A. Pascual v.
Lourdes S. Pascual, G.R. No.171916, 2009)
Substituted Service is Made By
1. Leaving copes of the summons at the
defendant’s residence with a person of suitable
age and discretion residing therein; or
2. Leaving copies of the summons at the
defendant’s office or regular place of business
with some competent person in charge thereof.
“Reasonable Time” Requirement
Reasonable time is defined as “so much time as is
necessary under the circumstances for a
reasonably prudent and diligent man to do,
conveniently, what the contract or duty requires that
should be done, having a regard for the rights and
possibility of loss, if any to the other party.” (Imelda
Manotoc v. Court of Appeals, G.R. No. 130974,
2006)
What then is a reasonable time for the sheriff to
effect a personal service in order to demonstrate
impossibility of prompt service? To the plaintiff,
“reasonable time” means no more than seven (7)
days since an expeditious processing of a complaint
is what a plaintiff wants. To the sheriff, “reasonable
time” means 15 to 30 days because at the end of
the month, it is a practice for the branch clerk of
court to require the sheriff to submit a return of the
summons assigned to the sheriff for service. The
Sheriff’s Return provides data to the Clerk of Court,
which the clerk uses in the Monthly Report of Cases
to be submitted to the Office of the Court
Administrator within the first ten (10) days of the
succeeding month. Thus, one month from the
issuance of summons can be considered
“reasonable time” with regard to personal service on
the defendant. (Constantino Pascual v. Lourdes
Pascual, G.R. No. 171916, 2009)
“Several Attempts”
For substituted service of summons to be available,
there must be several attempts by the sheriff to
personally serve the summons within a reasonable
period [of one month], which eventually resulted in
failure to prove impossibility of prompt service.
“Several attempts” means at least three (3) tries,
preferably on at least two different dates. In
addition, the sheriff must cite why such efforts were
unsuccessful. It is only then that impossibility of
service can be confirmed or accepted. (Imelda
Manotoc v. Court of Appeals, G.R. No. 130974,
2006)
“Suitable Age and Discretion”
A person of suitable age and discretion is one who
has attained the age of full legal capacity (18
107
years old) and is considered to have enough
discernment to understand the importance of a
summons.
Discretion is defined as “the ability to make
decisions which represent a responsible choice and
for which an understanding of what is lawful, right or
wise may be presupposed”. Thus, to be of sufficient
discretion, such person must know how to read and
understand English to comprehend the import of the
summons, and fully realize the need to deliver the
summons and complaint to the defendant at the
earliest possible time for the person to take
appropriate action. Thus, the person must have the
“relation of confidence” to the defendant, ensuring
that the latter would receive or at least be notified of
the receipt of the summons. The sheriff must
therefore determine if the person found in the
alleged dwelling or residence of defendant is of
legal age, what the recipient’s relationship with the
defendant is, and whether said person
comprehends the significance of the receipt of the
summons and his duty to immediately deliver it to
the defendant or at least notify the defendant of said
receipt of summons. These matters must be clearly
and specifically described in the Return of
Summons. (Imelda Manotoc v. Court of Appeals,
G.R. No. 130974, 2006) AND (Constantino Pascual
v. Lourdes Pascual, G.R. No. 171916, 2009)
“Competent Person in Charge”
If the substituted service will be done at defendant’s
office or regular place of business, then it should be
served on a competent person in charge of the
place. Thus, the person on whom the substituted
service will be made must be the one managing the
office or business of defendant, such as the
president or manager; and such individual must
have sufficient knowledge to understand the
obligation of the defendant in the summons, its
importance, and the prejudicial effects arising from
inaction on the summons. (Imelda Manotoc v. Court
of Appeals, G.R. No. 130974, 2006)
Entity Without Juridical Personality
If sued under the name by which they are generally
or commonly known, service may be effected upon
all the defendants by serving upon:
1. Any one of them; or
2. Upon the person in charge of the office or place
of business maintained in such name.
But such service shall not bind individually any
person whose connection with the entity has, upon
due notice, been severed before the action was
brought.
Domestic Private Juridical Entity
When the defendant is a corporation, partnership or
association organized under the laws of the
Philippines with a juridical personality, service may
be made on the
1. President;
2. Managing Partner;
3. General Manager;
4. Corporate Secretary;
5. Treasurer; or
6. In-house Counsel.
Section 13, Rule 14 is “restricted, limited, and
exclusive.” (Paramount Insurance Corp. v. A.C.
Ordoñez Corporation, G.R. No. 175109, 2003)
Basic is the rule that a strict compliance with the
mode of service is necessary to confer jurisdiction
of the court over a corporation. The officer upon
whom service is made must be one who is named
in the statute; otherwise, the service is insufficient.”
(Bank of the Philippine Islands v. Santiago G.R. No.
169116, 2007)
The rationale of the rule is that service must be
made on a representative so integrated with the
corporation sued as to make it a priori presumable
that he will realize his responsibilities and know
what he should do with any legal papers received
by him. (Millenium Industrial Commercial
Corporation v. Tan, G.R. No. 131724, 2000)
Substituted Service For Corporation – See BD
Longspan v. Ampeloquio 11 September 2009,
GR 169919.
BD Long Span Builders and R.S. Ampeloquio are
Philippine corporations that entered into an
agreement worth P80M thus one of the conditions
was for BD Long Span, as the obligor, to deposit
P800K during the duration of the project and it was
agreed that the deposit would be returned once the
project is done.
BD Long Span was unable to finish the project
which resulted in the cancellation of the agreement.
108
BD Long Span demanded for the refund of the
deposit but RS Ampeloquio refused.
BD Long Span then filed a case for rescission of
contract and damages against RS. The summons
and a copy of the complaint were served on RS
through its staff member.
SC ruled that at the outset, service of summons to
a corporation should be through the President,
managing partner, corporate secretary, treasurer or
in-house counsel otherwise the service would be
insufficient.
The purpose is to reasonably ascertain that the
corporation will receive prompt and proper notice in
an action against it or to insure that summons is
served to a representative so integrated with the
corporation that such person will know what to do
with the legal papers served on him.
The impossibility of prompt service must be shown
by stating the efforts have been made to find the
defendant personally and that such efforts failed;
these requirements must be followed strictly,
faithfully and fully and any substituted service other
than that authorized by statute is considered
ineffective.
Foreign Private Juridical Entity
When the defendant is a foreign private juridical
entity which has transacted business in the
Philippines, service may be made on its resident
agent designated in accordance with law for that
purpose, or, if there be no such agent, on the
government
official designated by law to that effect, or on any of
its officers or agents within the Philippines.
If the foreign private juridical entity is not registered
in the Philippines or has no resident agent, service
may, with leave of court, be effected out 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 or any recognized electronic
means that could generate proof of service; or
d) By such other means as the court may in its
discretion direct. (A.M. No. 11-3-6-SC)
Public Corporations
When the defendant is the Republic of the
Philippines, service may be effected on the
SOLICITOR GENERAL.
In case of a province, city or municipality, or like
public corporations, service may be effected on its
EXECUTIVE HEAD, or on such OTHER OFFICER
OR OFFICERS as the law or the court may direct.
Non-resident Defendant
Generally, summons to a non-resident defendant
may be served wherever he may be found. Note,
however, in the case of, Gemperle v. Schenker,
G.R. No. L-18164, 1967, where the Court carved
out a very narrow exception to the requirement of
personal service. In said case, the Court deemed
the service of summons to the resident spouse who
was also the defendant’s attorney-in-fact, valid.
Thus:
“Nevertheless, We hold that the lower court had
acquired jurisdiction over said defendant, through
service of the summons addressed to him upon
Mrs. Schenker, it appearing from said answer that
she is the representative and attorney-in-fact of her
husband (xxx), which apparently was filed at her
behest, in her aforementioned representative
capacity. In other words, Mrs. Schenker had
authority to sue, and had actually sued on behalf of
her husband, so that she was, also, empowered to
represent him in suits filed against him, particularly
in a case, like the of the one at bar, which is
consequence of the action brought by her on his
behalf.”
Effect of Ineffective Substituted Service
The Court does NOT acquire jurisdiction over the
person of the accused and the judgment against
him must perforce be nugatory and without legal
109
effect.” (Litonjua v. CA, G.R. No. L-46255, October
28, 1977)
Furthermore, in the 1993 decision in Laus v. Court
of Appeals, G.R. No. 101256, 1993, the period to
file motion to dismiss for lack of jurisdiction over the
defendant’s person does not commence to run
since court has no jurisdiction to adjudicate the
controversy as to him, unless he voluntarily submits
to the jurisdiction of the court.
Effect of Substituted Service Validly Served but
Not Received by Defendant
Where the substituted service has been validly
served, its validity is NOT affected by the
defendant’s failure to receive the summons from the
person with whom the summons had been left.
If diligent efforts were undertaken by the Sheriff to
serve summons upon the defendant but he was
PREVENTED from effecting such service by the
DEFENDANT HIMSELF, summons shall be
deemed PROPERLY served and that the court has
acquired jurisdiction over the person of the
defendant. (Robinson v. Miralles, G.R. No. 163584,
2006)
Substantial Compliance
Requisites for the application of the doctrine of
substantial compliance:
(a) There must be actual receipt of the summons by
the person served, i.e., transferring possession of
the copy of the summons from the Sheriff to the
person served;
(b) The person served must sign a receipt or the
sheriffs return; and
(c) There must be actual receipt of the summons by
the corporation through the person on whom the
summons was actually served. The third requisite is
the most important for it is through such receipt that
the purpose of the rule on service of summons is
attained. (Porac Trucking, Inc. v. Court of Appeals
G.R. No. 81093, 1990)
For there to be substantial compliance, actual
receipt of summons by the corporation through the
person served must be shown. Where a corporation
only learns of the service of summons and the filing
of the complaint against it through some person or
means other than the person actually served, the
service of summons becomes meaningless.
(Millenium Industrial Commercial Corporation v.
Tan, G.R. No. 131724, 2000)
5. CONSTRUCTIVE SERVICE (BY
PUBLICATION)
Constructive notice by publication used to be
available only in actions IN REM or QUASI IN REM.
Now, constructive service is available in action IN
PERSONAM (thus, in ANY ACTION) where the
defendant is designated as an unknown owner or
whenever his whereabouts are unknown and
cannot be ascertained.
a. SERVICE UPON A DEFENDANT WHERE HIS
IDENTITY IS UNKNOWN OR WHERE HIS
WHEREABOUTS ARE UNKNOWN
Constructive Service of Summons (through
publication) may be effected on RESIDENT
DEFENDANT
1. Who is designated as an unknown owner (or the
like), or
2. Whose whereabouts are unknown and cannot
be ascertained by diligent inquiry;
3. With leave of court.
Service of summons shall be effected by publication
in a newspaper of general circulation and in such
places and for such time as the court may order.
b. SERVICE UPON RESIDENTS
TEMPORARILY OUTSIDE THE PHILIPPINES
The defendant is a resident of the Philippines, and
remains to be one, except that he is temporarily
outside of the country. The provision does not
provide for the length of time needed, as long as the
defendant is certain to return, although it may not
be known when.
110
In ANY suit against a resident of the Philippines
temporarily absent from the country, the defendant
may be served by SUBSTITUTED service because
he still leaves a definite place of residence where
he/she is bound to return.
In addition, EXTRA-TERRITORIAL service [by
personal service effected out of the Philippines OR
by publication in a newspaper of general circulation
in such places and for such time as the court may
order] MAY be resorted to WITH LEAVE OF
COURT.
Summons by publication against a NON-
RESIDENT in an action IN PERSONAM is NOT a
proper mode of service.
6. EXTRA-TERRITORIAL SERVICE,
WHEN ALLOWED
Specific actions justifying application of
Extraterritorial Service
EXTRA-TERRITORIAL SERVICE
Involves a NON-RESIDENT defendant who
CANNOT be found in the Philippines and the action
against him is IN REM or QUASI IN REM.
Exception
When service may be effected OUT of the
Philippines (as provided in extra-territorial service)
for ANY ACTION involving residents who are
TEMPRORARILY out of the Philippines. (Rule 14,
Section 16)
Instances When Extra-territorial Service May be
availed of
1. Actions that affect the personal status of the
plaintiff;
2. Actions which relate to, or the subject matter of
which is property within the Philippines, in which
defendant claims a lien or interest, actual or
contingent;
3. Actions in which the relief demanded consists,
wholly or in part in excluding the defendant from
an interest in the property located in the Philippines;
and
4. When defendant’s property has been attached in
the Philippines.
Applicability of Extra-territorial Service
It must be noted that extraterritorial service of
summons or summons by publication applies only
when the action is in rem or quasi in rem. The first
is an action against the thing itself instead of
against the defendant’s person; in the latter, an
individual is named as defendant, and the purpose
is to subject that individual’s interest in a piece of
property to the obligation or loan burdening it. (Jose
v. Boyon, G.R. No. 147369, 2003)
Modes of Extra-Territorial Service
As per the same rule, the following are the
allowed Modes of Extra-Territorial Service
1. Personal service as under Section 6 of Rule 14
2. Publication in a newspaper of general circulation
in such places and for such time as the court
may order AND service by registered mail to the
last known address of the defendant.
Publication and service must BOTH concur
3. In any other manner the court may deem
sufficient
NOTE: ALL require prior leave of court.
Jurisdiction over the person of the defendant, if
acquired at all in such an action, is obtained by the
voluntary submission of the defendant or by the
personal service of process upon him within the
territory where the process is valid. If, however,
the defendant is a nonresident and, remaining
beyond the range of the personal process of the
court, refuses to come in voluntarily, the court never
acquires jurisdiction over the person at all. (Banco
Espanol-Filipino v. Palanca, G.R. No. L-11390,
1918)
The said extraterritorial service of summons is not
for the purpose of vesting the court with jurisdiction,
but for complying with the requirements of fair play
or due process, so that the defendant will be
informed of the pendency of the action against him
and the possibility that property in the Philippines
belonging to him or in which he has an interest may
be subjected to a judgment in favor of the plaintiff,
and he can thereby take steps to protect his interest
if he is so minded. (Perkin Elmer Singapore Pte Ltd.
v. Dakila Trading Corporation, G.R. No. 172242,
2007)
“In Any Other Manner the Court May Deem
Sufficient”
The list of modes of service provided in the code is
inclusive of the other modes that the court may
deem sufficient. In this light, note the difference
between the following cases of Valmonte and
Gemperle, where the common fact involves a
spouse receiving in behalf of the other. Gerperle is
111
the EXCEPTION to the general rule of personal
service.
Service of summons upon the non-resident
husband who was not appointed as attorney-in-fact
of wife nor authorized by wife to receive summons
for her could not fall within the ambit of the third
mode (in any manner the court may deem
sufficient), for the following reasons:
1. Service of summons on petitioner was not made
upon the order of the court as required by
Section 17, Rule 14, and certainly was not a
mode deemed sufficient by the court which in
fact refused to consider the service to be valid
and on that basis declare petitioner in default for
her failure to file an answer.
2. Service in the attempted manner on petitioner
was not made upon prior leave of the trial court
as required also in Section 17, Rule 14. As
provided in § 19, such leave must be applied for
by motion in writing, supported by affidavit of the
plaintiff or some person on his behalf and setting
forth the grounds for the application.
3. Petitioner did not appoint her husband as her
attorney-in-fact. Although she wrote private
respondent’s attorney that “all communications”
intended for her should be addressed to her
husband who is also her lawyer at the latter’s
address in Manila, no power of attorney to
receive summons for her can be inferred
therefrom. (Valmonte v. CA, G.R. No. 108538,
1996)
Gemperle v. Shenker, [G.R. No. L-18164, January
23, 1967] (In contrast with Valmonte): We hold that
the lower court had acquired jurisdiction over said
defendant, through service of the summons
addressed to him upon Mrs. Schenker, it appearing
from said answer that she is the representative and
attorney-in-fact of her husband aforementioned civil
case No. Q-2796, which apparently was filed at her
behest, in her aforementioned representative
capacity. In other words, Mrs. Schenker had
authority to sue, and had actually sued on behalf of
her husband, so that she was, also, empowered to
represent him in suits filed against him, particularly
in a case, like the of the one at bar, which is
consequence of the action brought by her on his
behalf.
In Cariaga Jr. v. Malaya, 143 SCRA 441, summons
was effected through extra-territorial service via
registered mail and the court upheld its validity
since it falls under the third mode, i.e., “in any
manner the court may deem sufficient.”
7. SERVICE UPON PRISONERS AND
MINORS
Prisoners
Defendant referred to by provision is in prison or
otherwise confined in an institution.
Service shall be effected upon him by
1. The officer having the management of such jail;
or
2. Institution who is deemed deputized as a special
sheriff for said purpose.
Minors and Incompetents
Defendant is either a minor, insane, or incompetent
Service shall be made upon him
1. Personally; and
2. On his legal guardian if he/she has one, OR if
none, upon his/her guardian ad litem whose
appointment shall be applied for by the plaintiff.
In the case of a MINOR, service may also be made
on his father or mother.
8. PROOF OF SERVICE
The following are the requisites and contents of
a valid proof of service
1. Made in writing by the server;
2. Shall set forth the manner, place, and date of
service
3. Shall specify any papers which have been
served with the process and the name of the
person who received the same; and
4. Shall be sworn to when made by a person other
than a sheriff or his deputy. (Section 18, Rule 14
of the Rules of Court)
The certificate of service of the process server of
the court a quo is prima facie evidence of the facts
as set out therein. This is fortified by the
presumption of the regularity of performance of
official duty. To overcome the presumption of
regularity of official functions in favor of such
sheriff’s return, the evidence against it must be
clear and convincing. Sans the requisite quantum of
proof to the contrary, the presumption stands
112
deserving of faith and credit. [Guanzon v. Arradaza,
G.R. No. 155392, December 6, 2006]
1. MOTIONS IN GENERAL
In the 2002 decision in the case of Samartino v.
Raon et. Al., [G.R. No. 131482, July 3, 2002] the
Court said that:
“We have long held that the impossibility of
personal service justifying availment of substituted
service should be explained in the proof of service;
a. Definition of a motion
why efforts exerted towards personal service failed.
b. Motions versus pleadings
The pertinent facts and circumstances attendant to
c. Contents and form of motions
the service of summons must be stated in the proof
d. Notice of hearing and hearing of
of service or Officer’s Return; otherwise, the
motions
substituted service cannot be upheld.”
e. Omnibus motion rule
f. Litigated and ex parte motions
Proof of Service by Publication may be proved
g. Pro-forma motions
by:
1. Affidavit of the –

2. MOTIONS FOR BILL OF

a. Printer, his foreman or principal clerk OR PARTICULARS
b. Editor, business or advertising manager, to
which affidavit a copy of the publication shall
be attached AND

a. Purpose and when applied for

b. Actions of the court
c. Compliance with the order and effect of
2. Affidavit showing the deposit of a copy of the noncompliance
summons and order for publication in the post d. Effect on the period to file a responsive
office, postage prepaid, directed to the defendant by pleading
registered mail to his last known address.

END OF TOPIC

3. MOTION TO DISMISS

G. MOTIONS a. Grounds
(Rule 15) b. Resolution of motion

113
 c. Remedies of plaintiff when the
complaint is dismissed
d. Remedies of the defendant when the
motion is denied
e. Effect of dismissal of complaint on
certain grounds
f. When grounds pleaded as affirmative
defenses b. MOTION VERSUS PLEADINGS
g. Bar by dismissal
MOTION - is an application for relief OTHER THAN
a pleading.

PLEADINGS - are those allowed under Section 2,

Rule 6 of the Rules of Court (complaint,
counterclaim, cross-claim, third-party complaint and
h. Distinguished from demurrer to complaint-in-intervention)
evidence under Rule 33

PLEADING MOTION
Is a submission of Is an application for an
claims or defenses for order not included in
appropriate judgment the judgment
1. MOTIONS IN GENERAL
a. DEFINITION OF A MOTION May be initiatory Cannot be initiatory as
motions are made in a
MOTION case already filed in
An application for relief other than by a pleading. It court
has facts based on relief and facts based on claims.
It is NOT a pleading since it does not have claims or
defenses Must be written May be oral when
made in open court or
Kinds of Motions: in the course of a
hearing or a trial
Must be filed before May be filed after
judgment judgment

1. Motion EX PARTE is made without the

presence or a notification to the other party
2. Motion OF COURSE is where the movant c. CONTENTS AND FORM OF MOTIONS
is entitled to the relief or remedy sought as a matter
of discretion on the part of the court. General Rule
3. LITIGATED Motion is the one made with All motions must be in writing
notice to the adverse party to give an opportunity to
oppose Exceptions
4. SPECIAL Motion is a motion addressed to 1. Motions made in open court;
the discretion of the court 2. Motions made in the course of a hearing or trial

114
Rules that apply to pleadings shall also apply to
written motions as to caption, designation, signature
and other matters of form.
Contents of a Motion
1. Statement of relief sought to be obtained
2. Grounds upon which the motion is based
3. Supporting affidavits and other papers when
mandated by the Rules or when necessary to
prove facts stated in motion
Requisites of a Motion:
1. It must be in writing;
2. The applicant must set hearing of motion [the
date of the hearing must not be later than ten
(10) days from the filing of the motion];
3. Notice of hearing must be addressed to all
parties concerned
4. Motion and notice of hearing must be served at
least three (3) days before the date of hearing
(THREE DAY NOTICE RULE)
5. Proof of service
Exceptions to the Three Day Notice Rule
1. Ex-Parte motions
2. Urgent motions
3. Motions agreed upon by the parties to be heard
on shorter notice or jointly submitted by the
parties
4. Motions for summary judgment which must be
served at least 10 days before its hearing
d. NOTICE OF HEARING AND HEARING OF
MOTIONS
Every written motion shall be set for hearing by the
applicant. Thus, every written motion is deemed a
litigated motion.
Notice of Hearing Shall
1. Be addressed to all the parties concerned;
2. Specify the time and the date of the hearing,
which shall not be later than 10 days after the
filing of the motion.
Service of the Motion
The motion which contains the notice of hearing
shall be SERVED in such a manner as to ensure its
receipt by the other party AT LEAST THREE (3)
DAYS before the date of hearing, UNLESS the
court for good cause sets the hearing on shorter
notice.
The motion shall be served upon the other party. A
motion set for hearing shall not be acted upon by
the court without proof of service thereof.
e. OMNIBUS MOTION RULE
A procedural principle which requires that every
motion that attacks a pleading, judgment, order or
proceeding shall include ALL grounds then
AVAILABLE and all objections not so included shall
be deemed waived.
Exceptions to Waiver
1. No jurisdiction over the subject matter;
2. Litis pendentia;
3. Res judicata; and
4. Statute of limitations or prescription.
f. LITIGATED AND EX PARTE MOTIONS
LITIGATED MOTION
One which requires the parties to be heard before
ruling on the motion can be made by the court
Examples
1. Motion to Dismiss (Rule 16)
2. Motion for Judgment on Pleadings (Rule 34)
3. Summary Judgment (Rule 35)
A motion which does NOT meet the requirements of
Sections 4 and 5 of Rule 15 on hearing and notice,
respectively, is a MERE SCRAP OF PAPER, which
the clerk of court has NO right to receive and court
has NO authority to act upon. Service of a copy of a
motion containing a notice of the time and the place
of hearing of the motion is mandatory, and failure to
comply renders motion fatally defective. (Vette
Industrial Sales Co., Inc. v. Cheng, G.R. Nos.
170232– 170301, 2006)
EX PARTE MOTION
115
One that does NOT require a party to be heard and
which the court may act upon without prejudice the
rights of the other party. This kind of motion is NOT
covered by the hearing requirement under Section
2, Rule 15 of the Rules of Court.
Examples
1. Setting for pre-trial
2. Motion for extension of time
Ex parte motions are frequently permissible in
procedural matters and situations of emergency. An
exception to the rule requiring notice is sometimes
made where notice or the resulting delay might tend
to defeat the objective of the motion. (Sarmiento v.
Zaratan, G.R. No. 167471, February 5, 2007)
It is stated that a MOTION DAY is set at Friday
afternoons or if a Friday is a non-working day, in the
afternoon of the next working day.
g. PRO FORMA MOTIONS
A motion which fails to comply with the
requirements under Section 4 (Hearing of motion),
Section 5 (Notice of hearing) and Section 6 (Proof
of service of notice of hearing) of Rule 15 of the
Rules of Court is a useless piece of paper.
It is pro forma, presenting no question which the
court could decide. (Boiser v. Aguirre, Jr., [A.M. No.
RTJ-04-1886, 2005) If filed, such motion is not
entitled to judicial recognizance and does not stop
the running of the period for filing the requisite
pleading. (Cruz v. Court of Appeals, G.R. No.
123340, 2002) It will be treated as one filed merely
to delay the proceeding. (Marikina Development
Corporation v. Flojo, G.R. No. 110801, 1995)
2. MOTIONS FOR BILL OF
PARTICULARS (Rule 12)
Motion for a bill of particulars
It is a motion which seeks to clarify matters in the
complaint which are vague, ambiguous, or not
averred with sufficient definiteness.
It applies to ANY PLEADING which in the
perception of the movant contains ambiguous
allegations.
The Motion Shall Point Out
1. Defects complained of;
2. The paragraphs wherein they are contained;
3. The details desired must be supplied by the
movant
The motion must comply with the requirements for
motions under Rule 15. Otherwise, it shall be
treated as a pro forma motion which shall not stop
the running of the period for filing the requisite
pleading
a. PURPOSE and WHEN APPLIED FOR
Purpose
The purpose of the motion is to seek an order from
the court directing the pleader to submit a bill of
particulars which avers matters with sufficient
definiteness or particularity to enable the movant to
prepare his responsive pleading.
When applied for
A motion for a bill of particulars must be filed
BEFORE responding to a pleading. Thus, the
period to file the motion refers to the period for filing
the responsive pleading in Rule 11.
If the Bill of Particulars is Directed to a
Complaint
Motion should be filed fifteen (15) days after service
of summons
If Directed to a Counterclaim
Motion should be filed ten (10) days from service of
counterclaim
In Case of a Reply to Which No Responsive
Pleading is Provided for
The motion must be filed within ten (10) days of
service of said reply.
116
b. ACTIONS OF THE COURT
Upon the filing of the motion, the clerk of court must
immediately bring it to the attention of the court.
The Clerk of Court May Either:
1. Deny motion outright; or
2. Grant motion outright; or
3. Allow the parties the opportunity to be heard.
c. COMPLIANCE WITH THE ORDER and
EFFECT OF NON-COMPLIANCE
Compliance
When the motion is granted (in whole or in part),
compliance must be effected WITHIN 10 DAYS
from NOTICE of the order UNLESS the court fixes a
different period.
In complying with the order, the pleader may file the
bill of particulars either in a separate leading or in
the form of an amended pleading, a copy of which
must be served on the adverse party.
Effect of Noncompliance or Insufficient
Compliance
The court may:
1. Order striking out of the pleading;
2. Order striking out portions of pleading to which
the order was directed;
3. Make such other order as it deems just;
4. Dismiss the complaint with prejudice unless
otherwise ordered by the court if it is the
PLAINTIFF who fails to comply;
5. Strike off the answer and dismiss the
counterclaim plus a declaration of in default
upon motion of the plaintiff if it is the
DEFENDANT who fails to comply.
d. EFFECT ON THE PERIOD TO FILE A
RESPONSIVE PLEADING
Filing of bill of particulars interrupts or STAYS the
period to file a responsive pleading.
Movant may file his responsive pleading within the
period to which he is entitled (balance of
reglementary period) at the time the bill of
particulars is filed, which shall NOT be less than five
(5) days in any event AFTER:
1. Service of the bill of particulars upon him; or
2. Notice of the denial of his motion
When filing for a Bill of Particulars is NOT
appropriate
It would also be improper to call for the production
of the particulars constituting malice, intent,
knowledge or condition of the mind, which under the
Rules may be averred generally.
A motion for bill of particulars will not be granted if
the complaint, while not very definite, nonetheless
already states a sufficient cause of action. A
motion for bill of particulars may not call for matters
which should form part of the proof of the complaint
upon trial. Such information may be obtained by
other means. (Salita v. Magtolis, G.R. No. 106429,
1994)
Where private respondent has already alleged that
petitioner was unable to understand and accept the
demands made by his profession upon his time and
efforts, it is certain that she can respond to this. To
demand for more details would indeed be asking for
information on evidentiary facts—facts necessary to
prove essential or ultimate facts and to obtain
evidentiary matters is not the function of a motion
for bill of particulars. (Salita v. Magtolis, G.R. No.
106429, 1994)
3. MOTION TO DISMISS (Rule 16)
a. GROUNDS
1. Absence of jurisdiction over
a) Person of the defending party OR
117
 b) Subject matter of the claim
2. Venue is improperly laid
3. Plaintiff has no legal capacity to sue
4. Another action is pending between the same
parties for the same cause (Litis Pendentia)
5. Cause of action is barred by
a) A prior judgment (Res Judicata) OR
b) The statute of limitations (Prescription)
6. No cause of action stated in pleading asserting
the claim (Failure to state cause of action)
7. Payment, waiver, abandonment, or
extinguishment of claim or demand set forth in
the plaintiff's pleading
8 Unenforceable (under the provisions of the
Statute of Frauds) claim under which the action
is founded
9. Non-compliance with a condition precedent for
filing the claim
It is subject to the OMNIBUS MOTION RULE. Any
objection available at the time of filing of the
pleading NOT raised will be DEEMED WAIVED.
Exceptions to Waiver
1. No jurisdiction over the subject matter;
2. Litis pendentia;
3. Res judicata; and
4. Statute of limitations or prescription.
Material Allegations Deemed Hypothetically
Admitted
No other principle in remedial law is more settled
than that when a motion to dismiss is filed, the
material allegations of the complaint are deemed to
be hypothetically admitted, which hypothetical
admission extends not only to the relevant and
material facts well pleaded in the complaint, but
also to inferences that may be fairly deduced from
them. (Municipality of Hagonoy vs Hon. Simeon
Dumdum, G.R. 168289, 2010)
Exceptions to the Hypothetical Admission of the
Veracity of the Allegations:
1. The falsity of the allegations is subject to judicial
notice;
2. Such allegations are legally impossible;
3. The allegations refer to facts which are
inadmissible in evidence
4. By the record or document in the pleading, the
allegations appear to be unfounded; or
5. There is evidence which has been presented to
the court by stipulation of the parties or in the
course of the hearings related to the case. (Heirs of
Loreto C. Maramag vs. Maramag, G.R. 181132,
2009)
Laches as Ground for Motion to Dismiss
Where a claim or demand set forth in the plaintiff’s
pleading has been paid, waived, abandoned, or
otherwise extinguished, the same may be raised in
a motion to dismiss. The language of the rule,
particularly on the relation of the words
"abandoned" and "otherwise extinguished" to the
phrase "claim or demand deemed set forth in the
plaintiff’s pleading" is broad enough to include
within its ambit the defense of bar by laches.
However, when a party moves for the dismissal of
the complaint based on laches, the trial court must
set a hearing on the motion where the parties shall
submit not only their arguments on the questions of
law but also their evidence on the questions of fact
involved. Thus, being factual in nature, the
elements of laches must be proved or disproved
through the presentation of evidence by the parties.
(Pineda vs. Heirs of Eliseo Guevarra, G.R. 143188,
2007)
Res Judicata as a Ground for Motion to Dismiss
1. The former judgment must be final;
2. The court, which rendered judgment, had
jurisdiction over the subject matter and the
parties;
3. The judgment must be on the merits;
4. There must be between the first and second
actions, identity of parties, subject matter and
cause of action. (Riano, Civil Procedure
Volume 1, 481, 2014)
The identity of parties need not be absolute but only
substantial identity is necessary. (Cruz v. CA, G.R.
164797, 2006)
118

Two Concepts of Res Judicata
1. Bar by prior judgment; and
2. Conclusiveness of judgment.
Bar by Prior Judgment
There is "bar by prior judgment" when, as between
the first case where the judgment was rendered,
and the second case that is sought to be barred,
there is identity of parties, subject matter, and
causes of action.
Conclusiveness of Judgment
There is conclusiveness of judgment where there is
identity of parties and subject matter in the first and
second cases, but no identity of causes of action,
the first judgment is conclusive only as to those
matters actually and directly controverted and
determined and not as to matters merely involved
therein. Under the doctrine of conclusiveness of
judgment, facts and issues actually and directly
resolved in a former suit cannot again be raised in
any future case between the same parties, even if
the latter suit may involve a different claim or cause
of action. The identity of causes of action is not
required but merely identity of issues. (Heirs of
Tomas Dolleton vs. Fil-Estate Management, Inc.,
G.R. 170750, 2009)
Res judicata applies as well to the judicial and
quasi-judicial acts of public, executive or
administrative officers and boards acting within their
jurisdiction as to the judgments of courts having
general judicial powers. The Director of Lands is a
quasi-judicial officer. As such officer, his decisions
and orders rendered pursuant to his quasi-judicial
authority, have upon their finality, the force and
binding effect of a final judgment. (Heirs of
Wenceslao Tabia v. CA, G.R. Nos. 129377 &
129399, 2007)
Res judicata is a doctrine of civil law and thus has
no bearing on criminal proceedings (Trinidad v.
Office of the Ombudsman, G.R. No. 166038, 2007)
Res judicata, as a ground for dismissal, is based on
two grounds:
(1) Public policy and necessity, which makes it to
the interest of the State that there should be an
end to litigation---republicae ut sit litium; and
(2) The hardship on the individual of being vexed
twice for the same cause---nemo debet bis
vexari et eadem causa. (Sps Torres vs Medina,
G.R. 166730, 2010)
Res judicata as a ground for the dismissal of a case
may be disregarded if its rigid application would
involve the sacrifice of justice to technicality (PNB v.
Estate of De Guzman, G.R. 182507, 2010)
Litis Pendentia as a Ground for Motion to
Dismiss
1. Identity of the parties or at least such parties
representing the same interests in both actions;
2. There is substantial identity in the cause of
action and relief sought, the relief being
founded on the same facts; and
3. The identity in the two cases should be such that
any judgment that may be rendered in one,
regardless of which party is successful, would
amount to res judicata in the other case (Riano,
Civil Procedure Volume 1, 482, 2014)
Litis pendentia as a ground for the dismissal of a
civil action contemplates a situation wherein
another action is pending between the same parties
for the same cause of action, such that the second
action becomes unnecessary and vexatious.  In
fact, it is one of the grounds that authorizes a court
to dismiss a case motu proprio. Among the several
tests resorted to in ascertaining whether two suits
relate to a single or common cause of action are:
(1) Whether the same evidence would support and
sustain both the first and second causes of
action; and
(2) Whether the defenses in one case may be
used to substantiate the complaint in the other.
(Subic Telecommunications Company v Subic
Metropolitan Bay Authority, G.R. 185189,
October 12, 2009)
(3) Whether the cause of action in the 2nd case
existed at the time of the filing of the complaint
or answer with counterclaim (Intramuros
Administration v. Contacto, G.R. 152576, 2003)
Prescription as a Ground for Motion to Dismiss
The affirmative defense of prescription does not
automatically warrant the dismissal of a complaint.
An allegation of prescription can effectively be used
in a motion to dismiss only when the complaint on
its face shows that indeed the action has already
prescribed. If the issue on prescription is one
involving evidentiary matters requiring full blown
trial on the merits, it cannot be determined in a
119
motion to dismiss. (Heirs of Tomas Dolleton vs. Fil-
Estate Management, Inc., G.R. 170750, 2009)
Time to File the Motion
A motion to dismiss is filed within the time for filing
the answer but BEFORE filing said answer.
If a motion to dismiss is filed AFTER the answer
has been filed, it is to be considered filed OUT OF
TIME and the defending party is estopped from
filing the motion to dismiss.
Three Rules in Determining which of the Actions
should be Abated on the Ground of Litis
Pendentia
1. PRIORITY IN TIME RULE
As a rule, preference is given to the first action filed
to be retained. This is in accordance with the
maxim Qui prior est tempore, potior est jure.
However, a later case shall not be abated if not
brought to harass or vex; and the first case can be
abated if it is merely an anticipatory action or, more
appropriately, an anticipatory defense against an
expected suit – a clever move to steal the march
from the aggrieved party.
2. MORE APPROPRIATE ACTION TEST
This considers the real issue raised by the
pleadings and the ultimate objective of the parties;
the more appropriate action is the one where the
real issues raised can be fully and completely
settled.  assuming them to be true. This is the general rule
3. ANTICIPATORY TEST
If the first suit is filed merely to preempt the later
action or to anticipate its filing and lay the basis for
its dismissal, then the first suit should be
dismissed. (Benavidez vs. Salvador, G.R. 173331,
2013)
Failure to State a Cause of Action as a Ground
for Motion to Dismiss
In a motion to dismiss for failure to state cause of
action, The focus is the sufficiency, not the veracity
of material allegations. Test of Sufficiency: Whether
or not, admitting the facts alleged, the court could
render a valid judgment upon the same in
accordance with the prayer of the complaint.
(Republic v. Glasgow, G.R. 170281, 2008)
A ruling on the ground of failure to state cause of
action should be based only on facts alleged in the
complaint. Consideration of any other facts is out of
the question and any attempt to prove extraneous
circumstances is not allowed. (Equitable PCIB v.
CA, G.R. 143556, 2004)
Exceptions to rule that Failure to State
is based on complaint alone
Loreto Maramag designated as beneficiary his
concubine, Eva and their illegitimate children. The
petitioners of this case, the legitimate family of
Loreto are claiming that Eva was a suspect in the
murder of Loreto thus, she is disqualified from
claiming from the insurance.
The issue in this case is whether the concubine can
claim from the insurance however the motion to
dismiss filed was granted due to failure to state a
cause of action.
When a motion to dismiss is premised on this
ground, the ruling should be based only on the facts
alleged in the complaint. The court must resolve the
issues on the strength of such allegations,
but it has certain exceptions such that there are no
hypothetical admission of the veracity of the
allegations if:
 The falsity of the allegations is subject to
judicial notice
 Such allegations are legally impossible
 The allegations refer to facts which are
inadmissible as evidence
 By the record or document in the pleading, the
allegations appear unfounded
 There is evidence which has been presented
to the court by stipulation of the parties or in
the course of the hearings related to the case
120
 (Heirs of Maramag v. Maramag, 5 June 2009,
588 SCRA 774)
Can court consider evidence presented in a
hearing on affirmative defenses to determine
failure to state a cause of action?
This is a case for quieting of title filed by the
petitioners who claim to be the rightful owners of a
house and lot in Pampanga, they claim that they
have been in open, continuous, adverse and
notorious possession of the property for more than
a hundred years.
That sometime in 2005, the petitioners received
demand letters from the respondents, claiming
ownership over the subject property and demanding
that they vacate the same. The Register of Deeds
of Pampanga confirmed that the property have
been titled in the name of the respondents and
declared the title of the petitioners to be invalid, thus
the present case was filed
Respondents claim that petitioners have no cause
of action which the trial court granted however,
petitioners are averring that in considering this
particular ground for dismissal, no preliminary
hearing on the affirmative defenses may be held.
SC ruled in the affirmative. The trial court may
indeed elect to hold a preliminary hearing on the
affirmative defenses as raised in the answer under
Section 6 of Rule 16 but it has been held that such
hearing is not necessary when the affirmative
defense is failure to state a cause of action and that
it is in fact error for the court to hold a preliminary
hearing to determine the existence of external facts
outside the complaint.
The ground of failure to state a cause of action must
be determined only on the basis of the facts alleged
and no other (Aquino v. Quiazon, 11 March 2015,
GR NO. 201248)
Can a court motu proprio dismiss a case for
failure to state earnest efforts to compromise?
Dr. Favis has two families (legitimate and common)
and near the end of his life, he allegedly executed a
Deed of Donation in favor of his illegitimate child,
transferring certain properties. The legitimate
children, claiming that the alleged donation
compromised their legitime, filed for the annulment
of the Deed of Donation.
The CA dismissed the case motu proprio for failure
of petitioners to make an averment that earnest
efforts toward a compromise have been made, as
mandated by Art. 151 of the Family Code.
Section 1 Rule 9 provides for the only instances
when the court may motu proprio dismiss the claim
(1) lack of jurisdiction over the subject matter (2)
litis pendencia (3) res judicata (4) prescription of
action. Outside of these instances, any motu proprio
dismissal would amount to a violation of the right of
the plaintiff to be heard.
Failure to allege earnest but failed efforts at a
compromise in a complaint among members of the
same family is not a jurisdictional defect but merely
a defect in the statement of a cause of action.
(Heirs of Favis v. Gonzales, 15 January 2014, 713
SCRA 568)
When a Motion to Dismiss MAY be Filed AFTER
the Filing of an Answer
1. If the ground raised is lack of jurisdiction over
the subject matter;
2. If it is alleged that there is another action
pending between the same parties for the same
cause;
3. If the ground filed is that the action is barred by
prior judgment; or
4. If the action is barred by the statute of
limitations. (Riano, Civil Procedure Volume 1,
477, 2014)
b. RESOLUTION OF MOTION
After the Hearing, the Court May
1. Dismiss the action or claim
2. Deny the motion
3. Order the amendment of the pleading.
121
 jurisdiction, the defendant may file a petition for
Court shall NOT defer the resolution of the motion certiorari or prohibition under Rule 65.
for the reason that the ground relied upon is not
indubitable. An order denying a motion to dismiss is an
interlocutory order that neither terminates nor
The resolution shall state clearly and distinctly the finally disposes of a case. As such, the general rule
reasons therefor in every case. is that the denial of a motion to dismiss cannot be
questioned in a special civil action for certiorari
c. REMEDIES OF PLAINTIFF WHEN THE which is a remedy designed to correct errors of
COMPLAINT IS DISMISSED jurisdiction and not errors of judgment. Neither can
a denial of a motion to dismiss be the subject of an
If motion is granted, complaint is dismissed. Such appeal unless and until a final judgment or order is
dismissal is FINAL and not interlocutory in character rendered. In order to justify the grant of the
extraordinary remedy of certiorari, the denial of the
The Plaintiff may: motion to dismiss must have been tainted with
1. Re-file complaint if ground for dismissal does grave abuse of discretion amounting to lack or
NOT bar refiling excess of jurisdiction (Douglas Lou Ym v. Gertrudes
2. Appeal from order of dismissal if ground for Nabua, G.R. No. 161309, 2005)
dismissal is one which BARS refilling of
complaint such as: e. EFFECT OF DISMISSAL OF COMPLAINT ON
CERTAIN GROUNDS

ON COUNTERCLAIM - shall be WITHOUT

prejudice to prosecution in the same OR a separate
action of a counterclaim pleaded in the answer of a
defendant.
a) Res judicata
b) Prescription Dismissal of main action does NOT carry with it
c) Extinguishment of obligation dismissal of counterclaim.
d) Violation of the Statue of Frauds (Section 5,
Rule 16 of the Rules of Court) f. WHEN GROUNDS PLEADED AS
AFFIRMATIVE DEFENSES (Rule 16, Section
6)

3. Petition for Certiorari if court gravely abuses

its discretion in a manner amounting to lack of
jurisdiction and is the appropriate remedy in
those instances when the dismissal is without
prejudice.

d. REMEDIES OF THE DEFENDANT WHEN

THE MOTION IS DENIED

1. File answer within time prescribed by Rule 11, If NO motion to dismiss has been filed, ANY of the
but not less than five (5) days computed from his grounds for dismissal provided for in this Rule may
receipt of the notice of the denial. be pleaded as an affirmative defense in the
2. If the pleading is ordered to be amended, he answer. It is NOT deemed waived.
shall file his answer within the period prescribed
by Rule 11 counted from service of the amended
pleading, unless the court provides a longer
period.
3. Where the denial of the motion was tainted with
grave abuse of discretion amounting to lack of

122
In the discretion of the court, a preliminary hearing
may be had AS IF a motion to dismiss had been
filed.

The dismissal of the complaint under this section

shall be WITHOUT prejudice to the prosecution in
the same or separate action of a counterclaim
pleaded in the answer. Order Granting Motion to Dismiss Shall BAR Re-
filing of Same Action or Claim if Dismissal is
The Omnibus Motion Rule applies only when a based on the following:
motion to dismiss is filed. If no motion to dismiss is 1. Cause of action barred by prior judgment
filed, any of the grounds for dismissal under Rule 16 2. Cause of action barred by statute of limitations
may be pleaded as an affirmative defense in the 3. Claim or demand has been paid, waived,
answer. (Riano, Civil Procedure Volume 1, 476, abandoned, or extinguished
2014) 4. Claim is unenforceable under the Statute of
Frauds
The general rule must be reiterated that the
preliminary hearing contemplated under Section 6, Where the defendant is barred from re-filing,
Rule 16 applies only if no motion to dismiss has remedy is to file an APPEAL. Such dismissal is said
been filed. This is expressly provided under the to be WITH prejudice to re-filing of case.
rule, which relevantly states "[i]f no motion to
dismiss has been filed, any of the grounds for h) DISTINGUISHED FROM DEMURRER TO
dismissal provided for in [Rule 16] may be pleaded EVIDENCE UNDER RULE 33
as an affirmative defense in the answer and, in the
discretion of the court, a preliminary hearing may be
had thereon as if a motion to dismiss had been
filed." An exception was carved out in California and
Hawaiian Sugar Company v. Pioneer Insurance, MOTION TO DISMISS MOTION TO DISMISS
wherein the Court noted that while Section 6 UNDER RULE 16 UNDER RULE 33
disallowed a preliminary hearing of affirmative (DEMURRER TO
defenses once a motion to dismiss has been filed, EVIDENCE)
such hearing could nonetheless be had if the trial Grounded on Based on insufficiency
court had not categorically resolved the motion to preliminary objections of evidence
dismiss. Such circumstance does not obtain in this Maybe filed by Maybe filed only by the
case, since the trial court had already categorically defending party defendant against
denied the motion to dismiss prior to the filing of the against whom a claim the complaint of the
answer and the motion for preliminary hearing. is asserted in the plaintiff
(Sps. Rasdas v. Estenor, G.R. No. 157605, 2005) action
Should be filed within May be filed only after
After the filing of an answer which raises affirmative the time for, but prior the plaintiff has
defenses, the defendant may file a motion to hear to the filing of an completed the
the affirmative defenses so that his defenses can be answer, of the presentation of his
heard before the plaintiff presents his case. The defending party to the evidence
filing of a “motion to dismiss” raising any of the pleading asserting the
grounds set forth in Section 1, Rule 16 after the claim against him
filing of the answer is likewise permissible since
IF DENIED - defendant IF DENIED - defendant
such motion essentials prays for the same thing,
must file an answer, may present evidence
i.e., that defendant’s affirmative defenses be heard.
else be declared in
(Associated Bank vs Sps Montano G.R. 166383,
default IF GRANTED - plaintiff
2009)
IF GRANTED - plaintiff appeals and the order
may appeal or re-file of dismissal is
g. BAR BY DISMISSAL
case (if subsequent reversed, the
case is not barred) defendant loses his
right to present
evidence

123

END OF TOPIC
H. DISMISSAL OF ACTONS
(Rule 17)
1. DISMISSAL UPON NOTICE BY
PLAINTIFF; TWO-DISMISSAL RULE
2. DISMISSAL UPON MOTION BY
PLAINTIFF; EFFECT ON EXISTING
COUNTERCLAIM
3. DISMISSAL DUE TO THE FAULT OF
PLAINTIFF
4. DISMISSAL OF COUNTERCLAIM,
CROSS-CLAIM OR THIRD-PARTY
COMPLAINT
1. DISMISSAL UPON NOTICE BY
PLAINTIFF; TWO-DISMISSAL RULE
Characteristics
1. A matter of right;
2. Made by mere notice;
3. Made by plaintiff only;
4. Made before service of answer OR motion for a
summary judgment;
5. Confirmation of dismissal by order of court is
required;
6. Dismissal is without prejudice to the re-filing of
the same action by the plaintiff. EXCEPT:
a) When otherwise stated in the notice
b) Where the plaintiff has previously dismissed
the same case in a court of competent
jurisdiction (Two-Dismissal Rule)
TWO-DISMISSAL RULE – The rule states that two
dismissals of the same claim before a competent
court will bar a subsequent (3rd) action on the same
claim or on a claim included therein (Handbook on
Civil Procedure, Gayo)
Requirements of Two-Dismissal Rule:
1. Twice dismissed actions;
2. Based on or including the same claim; and
3. In a court of competent jurisdiction.
If the plaintiff files a notice of dismissal providing
therein a reason that prevents the refilling of the
complaint, the dismissal must be deemed one with
prejudice even if the notice does not state that the
dismissal is with prejudice. (Riano, Civil Procedure:
A Restatement for the Bar, 2nd ed., 2009)
When complaint cannot be refiled:
A Motion to Dismiss grounded on the following
1. The cause of action is barred by prior judgment
2. The cause of action is barred by the statute of
limitations
3. The claim or demand has been paid, waived,
abandoned, or otherwise extinguished
4. The claim, on which the action is founded, is
unenforceable under the provisions of the statute
124
of frauds (Riano, Civil Procedure Volume 1, 486,
2014)
The Supreme Court made the following clarification:
Under Section 1, Rule 17 of the OLD RULES, the
dismissal contemplated therein could be
accomplished by the plaintiff through mere notice of
dismissal, and not through motion subject to
approval by the Court. Dismissal is ipso facto
upon notice and without prejudice unless
otherwise stated in the notice. (OB Jovenir
Construction v. Macamir Realty and Development
Corporation G.R. 135803, 2006)
On the other hand, the 1997 Rules of Civil
Procedure now requires that upon the filing of such
notice, the court MUST issue an order confirming
the dismissal. The new requirement intends to
qualify the right of a party to dismiss the action
before the adverse party files his answer or asks for
summary judgment.
If respondents resorted to a MOTION to effect what
could have been effected by mere NOTICE, then
such error is only indicative of a certain degree of
ignorance of procedural rules on the part of
respondents’ counsel and cannot be deemed a fatal
consequence.
2. DISMISSAL UPON MOTION BY
PLAINTIFF; EFFECT ON EXISTING
COUNTERCLAIM
Characteristics
1. Dismissal by a motion to dismiss filed by the
plaintiff
2. Made after service of answer or motion for
summary judgment
3. Requires approval of court (matter of judicial
discretion)
4. Dismissal is without prejudice to refiling unless
otherwise stated in the order
A Dismissal Upon Motion by Plaintiff is NOT for the
purpose of voluntarily abandoning his claim when
the intention was to expedite the enforcement of his
rights and there was clearly no inaction nor lack of
interest on his part. Prescription, therefore, does not
run. [Antonio, Jr. vs. Morales G.R. 165552, January
23, 2007]
Under Rule 17, Section 3, a defendant may move to
dismiss the case if the plaintiff defaults; it does not
contemplate a situation where the dismissal was
due to lack of jurisdiction Thus, when respondents
filed the second case, they were merely refiling the
same claim that had been previously dismissed on
the basis of lack of jurisdiction. When they moved to
dismiss the second case, the motion to dismiss can
be considered as the first dismissal at the plaintiffs
instance. Accordingly, the dismissal at this instance
is a matter of right that is not subject to the trial
court's discretion. For this reason, the trial court
issued its order dismissing case 2, without
prejudice. When respondents filed the third case on
substantially the same claim, there was already one
prior dismissal at the instance of the plaintiffs and
one prior dismissal at the instance of the
defendants. While it is true that there were two
previous dismissals on the same claim, it does not
necessarily follow that the re-filing of the claim was
barred by Rule 17, Section 1. In granting the
dismissal of the second case, the trial court
specifically orders the dismissal to be without
prejudice. It is only when the trial court's order either
is silent on the matter, or states otherwise, that the
dismissal will be considered an adjudication on the
merits. (Ching v. Cheng, 8 October 2014, 737
SCRA 610)
Notice of Dismissal prevails over a Motion to
Dismiss
Section 1 of Rule 17 does not encompass a Motion
to Dismiss. The provision specifically provides that
a plaintiff may file a notice of dismissal before
service of the answer or a motion for summary
judgment. Thus, upon the filing of the Notice of
Dismissal by the plaintiff, the Motion to Dismiss filed
by respondents became moot and academic and
the trial court should have dismissed the case
without prejudice based on the Notice of Dismissal
filed by the petitioner. (Dael vs. Spouses Beltran
G.R. No. 156470, 2008)
Effect on Counterclaim
The dismissal of the complaint does not necessarily
carry with it the dismissal of the counterclaim,
compulsory or otherwise. The dismissal of the
complaint is without prejudice to the right of the
defendants to prosecute the counterclaim. (Pinga v.
Santiago, G.R. 170354, 2006)
Counterclaim NOT dismissed if pleaded by a
defendant prior to the service upon him of the
plaintiff’s motion for dismissal. Dismissal of the
action upon motion by the plaintiff is WITHOUT
prejudice to the right of the defendant to prosecute
his counterclaim in a separate action.
125
Counterclaim can be resolved in the same action if Dismissal of the action is WITHOUT prejudice to the
defendant manifests such preference within fifteen right of the defendant to prosecute his counterclaim
(15) days from notice of the motion. in the same OR in a separate action.

These alternative remedies of the defendant are 4. DISMISSAL OF COUNTERCLAIM,

available to him regardless of whether his
counterclaim is compulsory OR permissive.
If the dismissal of the complaint somehow
eliminates the cause of the counterclaim, then the
counterclaim also cannot survive. Conversely, if the
counterclaim itself states sufficient cause of action
then it should stand independently and survive the
dismissal of the complaint. (Perkin Elmer Singapore
Pte. Ltd. vs. Dakila Trading Corporation G.R.
172242, 2007)
3. DISMISSAL DUE TO FAULT OF
PLAINTIFF
CROSS-CLAIM OR THIRD-PARTY
COMPLAINT
The provisions under Rule 17 apply to the dismissal
of any counterclaim, cross-claim or third-party
complaint.
A dismissal or discontinuance of an action operates
to annul orders, rulings or judgments previously
made in the case, as well as all proceedings had in
connection therewith and renders all pleadings
ineffective.
END OF TOPIC

Applies When, If for No Justifiable Cause,

Plaintiff FAILS to:
1. Appear on the date of presentation of his
evidence in chief; or
2. Prosecute his action for an unreasonable length
of time; or
3. Comply with the Rules of Court; or
4. Comply with any order of the Court; or
5. Appear at pre-trial
I. PRE-TRIAL
The Dismissal Can be Made By (Rule 18)
1. Upon motion of the defendant; or
2. Court’s own motion

The dismissal of the complaint will be deemed as a

FINAL judgment on the merits and is therefore
WITH PREJUDICE to a refilling of the same action
by the plaintiff UNLESS otherwise stated in the
order of the court.
1. CONCEPT OF PRE-TRIAL
Unless the court states that the dismissal is without 2. NATURE AND PURPOSE
prejudice, the dismissal should be understood as
adjudication on the merits and is with prejudice to 3. NOTICE OF PRE-TRIAL
refiling. (PNB vs. de Guzman G.R. 182507, 2010) 4. APPEARANCE OF PARTIES;
EFFECT OF FAILURE TO APPEAR
Dismissal for failure to prosecute is an adjudication 5. PRE-TRIAL BRIEF; EFFECT OF
on the merits. Therefore, such dismissal should be
challenged by APPEAL within the reglementary
FAILURE TO APPEAR
period. (3A Apparel Corporation vs. Metropolitan 6. DISTINCTION BETWEEN PRE-
Bank and Trust Co. G.R. 186175, 2010) TRIAL IN CIVIL CASE AND PRE-
TRIAL IN CRIMINAL CASE
Effect on Counterclaim

126
7. ALTERNATIVE DISPUTE
RESOLUTION (ADR)
a. Special Rules of Court on ADR
(A.M. No. 07-11-08-SC)
1. CONCEPT OF PRE-TRIAL
Concept under A.M. No. 03-1-9-SC
An undeniably important and vital component of
case management in trial courts, the purpose of
which is to abbreviate court proceedings, ensure
prompt disposition of cases and decongest court
dockets.
Pre-trial shall endeavor to persuade the parties to
arrive at a settlement of the dispute, with due regard
to the rights of the parties.
The court shall endeavor to make the parties agree
to an equitable compromise or settlement at any
stage of the proceedings before rendition of
judgment.
Concept Derived From Jurisprudence
Pre-trial is primarily intended to make certain that all
issues necessary to the disposition of a case are
properly raised. To eliminate the element of
surprise during actual trial, parties are expected to
disclose at the pre-trial conference all issues of law
and fact that they intend to raise at the trial.
However, in cases in which the issue may involve
privileged or impeaching matters, or if the issues
are impliedly included therein or may be inferable
therefrom by necessary implication as integral parts
of the pre-trial order, then the general rule does not
apply. A pre-trial order is not meant to be a detailed
catalogue of each and every issue that is to be or
may be taken up during the trial. (LCK Industries v.
Planters Development Bank, G.R. No. 170606,
2007)
2. NATURE AND PURPOSE
The pre-trial is mandatory BOTH in civil and in
criminal cases.
When Pre-Trial is Conducted
After the last pleading has been served and filed, it
shall be the duty of the PLAINTIFF within five (5)
days to promptly move ex-parte that the case be
set for pre-trial. (Administrative Circular No. 3-99,
January 15, 1999)
If the plaintiff fails to file said motion within the given
period, the branch CLERK OF COURT shall issue a
notice of pre-trial.
The pre-trial brief serves as a guide during the pre-
trial conference so as to simplify, abbreviate and
expedite the trial if not to dispense with it.  It is a
devise essential to the speedy disposition of
disputes, and parties cannot brush it aside as a
mere technicality.  In addition, pre-trial rules are not
to be belittled or dismissed, because their non-
observance may result in prejudice to a party’s
substantive rights. Like all rules, they should be
followed except only for the most persuasive of
reasons when they may be relaxed to relieve a
litigant of an injustice not commensurate with the
degree of his thought[less]ness in not complying
with the procedure. (Eufemia Balatico vda. De
Agatep vs Roberta  L. Rodriguez and Natalia
Aguinaldo Vda. De Lim, G.R. No. 170540, 2009)
The Purpose of the Pre-trial is to Allow the
Court to Consider:
1. The possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution;
2. The simplification of the issues;
3. The necessity or desirability of amendments to
the pleadings;
4. The possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof;
5. The advisability of a preliminary reference of
issues to a commissioner;
6. The propriety of rendering judgment on the
pleadings, or summary judgment, or dismissing
the action should a valid ground exist;
7. The advisability or necessity of suspending the
proceedings; and
127
8. Such other matters as may aid in the prompt
disposition of the action.
3. NOTICE OF PRE-TRIAL
Notice shall be served on:
1. Counsel; or
2. The party himself, ONLY IF he is without
counsel.
Counsel served with such notice is charged with the
DUTY to notify his/her client.
4. APPEARANCE OF PARTIES;
EFFECT OF FAILURE TO APPEAR
Parties and their counsel BOTH have the duty to
appear at pre-trial.
Non-appearance May Be Excused Only If:
1. A valid cause is shown; or
2. A representative appears fully authorized in
writing to enter into an amicable settlement, to
submit to alternative modes of dispute resolution
and to enter into stipulations or admissions of
facts and of documents.
The authorization in writing must be in the form of a
SPECIAL POWER OF ATTORNEY.
The parties and their counsels are required to
attend the pre-trial the purpose of which is to
exhaust all possibilities of reaching a compromise.
Having failed to justify their absence, they have no
valid ground to request for a new trial. Further, an
improvident termination of legal services is not a
valid excuse to be absent at the pretrial. (Jonathan
Landoil International Co v Sps. Mangudadatu, G.R.
No. 155010, 2004)
Stipulations freely and voluntarily made are valid
and binding and will not be set aside unless for
good cause.  The Rules of Court mandate parties in
a criminal case to stipulate facts.  Once they have
validly and voluntarily signed the stipulations, the
accused and their counsel may not set these aside
on the mere pretext that they may be placed at a
disadvantage during the trial. (Sixto Bayas vs
Sandiganbayan, G.R. No. 143689-91, 2002)
Effect of Failure to Appear of Parties
1. If PLAINTIFF failed to appear, the case is
dismissed with prejudice unless otherwise
ordered by the court.
The dismissal is to be considered as a final
judgment, thus, the remedy of the plaintiff is to
APPEAL.
2. If DEFENDANT failed to appear, the plaintiff will
be allowed to present evidence ex-parte, and
the court shall render judgment on the basis of
the evidence presented.
The order allowing the plaintiff to present his/her
evidence ex-parte is interlocutory, hence, NOT
APPEALABLE.
Section 1 of Rule 18 of the Rules of Court imposes
upon the plaintiff the duty to set the case for pre-trial
after the last pleading is served and filed. Under
Section 3 of Rule 17, failure to comply with the said
duty makes the case susceptible to dismissal for
failure to prosecute for an unreasonable length of
time or failure to comply with the rules. The failure
of the plaintiff to prosecute the action without any
justifiable cause within a reasonable period of time
will give rise to the presumption that he is no longer
interested in obtaining the relief prayed for. [Jazmin
Espiritu vs Vladimir Lazaro, G.R. 181020,
November 25, 2009]
5. PRE-TRIAL BRIEF; EFFECT OF
FAILURE TO FILE
A pre-trial brief is required to be filed at least three
(3) days before the date of the pre-trial conference
and it MUST be served on the adverse party.
The Pre-Trial Brief Shall Contain the Following:
1. Statement of the parties’ willingness to enter into
amicable settlement or alternative modes of
dispute resolution (e.g., arbitration), indicating
the desired terms;
128
2. A summary of admitted facts and proposed of the action EXCEPT if it is modified before trial to
stipulation of facts; prevent manifest injustice.
3. Issues to be tried or resolved;
4. Documents or exhibits to be presented, stating 6. DISTINCTION BETWEEN PRE-
the purpose thereof (No evidence shall be TRIAL IN CIVIL CASES AND PRE-
allowed to be presented and offered during the
trial in support of a party's evidence-in-chief TRIAL IN CRIMINAL CASES
other than those that had been earlier identified
and pre-marked during the pre-trial, except if
allowed by the court for good cause shown;
(A.M. No. 03-1-09-SC)
5. A manifestation of their having availed OR their IN CIVIL IN CRIMINAL
intention to avail themselves of discovery CASES CASES
procedures or referral to commissioners;
6. The number and names of witnesses and the
substance of their testimonies. Commencement Pre-trial is Pre-trial is
set when the ordered by
Parties are bound by the representations and PLAINTIFF the court after
statements in their respective pre-trial briefs as moves EX- arraignment
such are in the nature of judicial admissions. PARTE to and within
set the case thirty (30)
Effect of Failure to File a Pre-Trial Brief for pre-trial days from the
The same as failure to appear at the pre-trial: conference date the court
1. If PLAINTIFF failed to appear, the case is after the last acquired
dismissed with prejudice unless otherwise pleading has jurisdiction
ordered by the court. been filed. over the
2. If DEFENDANT failed to appear, the plaintiff will person of the
be allowed to present evidence ex-parte, and accused
the court shall render judgment on the basis (either
thereof. through
voluntary
Having no counsel in a civil case is not a surrender or
reasonable excuse to not file a pre-trial brief. It does arrest).
not also deprive one of due process. Failure to file a
pre-trial brief will have the same effect as not NO MOTION
appearing during pre-trial. (Saguid v. CA, G.R. to set the
150611, 2003) case for pre-
trial is
required.
Pre-Trial Order As to matters Minutes of Agreements
The order of the court is issued upon the discussed each pre- or admissions
termination of the pre-trial. trial made or
conference entered
The Order Shall Contain: shall contain during the
1. The matters taken up in the pre-trial conference; matters pre-trial
2. The action taken thereon; taken up conference
3. The amendments allowed to the pleadings; and therein, shall be
4. The agreements or admissions made by the more reduced in
parties. particularly writing and
admissions signed by
The pre-trial order shall define and limit the issues of facts and BOTH the
to be tried and shall control the subsequent course exhibits and accused and
shall be counsel;
signed by otherwise,
the parties they cannot
and/or their be used
counsel. against the

129
 accused.
As to Pre-Trial Shall set Shall set forth
Order forth in detail the actions
the matters taken during
taken up the pre-trial SPECIAL RULES OF COURT ON
during the conference, ALTERNATIVE DISPUTE RESOLUTION
conference, the facts “Special ADR Rules”
the action stipulated, the A.M. NO. 07-11-08-SC
taken admissions Effective October 30, 2009
thereon, the made,
amendments evidence
allowed to marked, the
the number of
pleadings, witnesses to
and the be presented
agreements and the
or schedule of PART I
admissions trial. GENERAL PROVISIONS AND POLICIES
made by the
parties as to RULE 1
any of the GENERAL PROVISIONS
matters
considered. Applicability of Special ADR Rules
As to non- Non- If the counsel 1. Relief on the issue of Existence, Validity, or
appearance of appearance for the Enforceability of the Arbitration Agreement;
parties of parties or accused or 2. Referral to Alternative Dispute Resolution
counsel the ("ADR");
does not prosecutor 3. Interim Measures of Protection;
authorize the does not 4. Appointment of Arbitrator;
courts to appear at the 5. Challenge to Appointment of Arbitrator;
impose pre-trial 6. Termination of Mandate of Arbitrator;
“penalties”. conference, 7. Assistance in Taking Evidence;
and does not 8. Confirmation, Correction or Vacation of Award
offer an in Domestic Arbitration;
acceptable 9. Recognition and Enforcement or Setting Aside
excuse, the of an Award in International Commercial
court may Arbitration;
impose 10. Recognition and Enforcement of a Foreign
proper Arbitral Award;
sanctions and 11. Confidentiality/Protective Orders; and
penalties. 12. Deposit and Enforcement of Mediated
Settlement Agreements. (Rule 1.1)

Nature of the proceedings

All proceedings under the Special ADR Rules are
special proceedings. (Rule 1.2)
7. ALTERNATIVE DISPUTE
RESOLUTION (ADR) Summary proceedings in certain cases
The proceedings in the following instances are
a. SPECIAL RULES OF COURT ON ADR (A.M. summary in nature and shall be governed by this
No. 07-11-08) provision:
1. Judicial Relief Involving the Issue of Existence,
Validity or Enforceability of the Arbitration
Agreement;
2. Referral to ADR;
3. Interim Measures of Protection;

130
 4. Appointment of Arbitrator;
5. Challenge to Appointment of Arbitrator;
6. Termination of Mandate of Arbitrator;
7. Assistance in Taking Evidence;
8. Confidentiality/Protective Orders; and
9. Deposit and Enforcement of Mediated
Settlement Agreements. (Rule 1.3)
Service and filing of petition by petitioner in
summary proceedings
1. Service upon the respondent either by personal
service or courier a copy of the petition before
the filing thereof.
2. Proof of service shall be attached to the petition
filed in court.
a. For Personal Service
Proof of service of the petition consists of
the affidavit of the person who effected
service, stating the time, place and manner
of the service on the respondent.
b. For Service by Courier
Proof of service consists of the signed
courier proof of delivery. (Rule 1.3-A)
Note: If service is refused or has failed, the affidavit
or delivery receipt must state the circumstances of
the attempted service and refusal or failure thereof.
(Rule 1.3-A)
Verification and submissions
1. Any pleading, motion, opposition, comment,
defense or claim filed under the Special ADR
Rules by the proper party shall be verified and
contain as annexes the supporting documents.
(Rule 1.4)
2. The annexes may include a legal brief, duly
verified by the lawyer submitting it, stating the
pertinent facts, the applicable law and
jurisprudence to justify the necessity for the
court to rule upon the issue raised. (Rule 1.4)
Certification against Forum Shopping
A Certification against Forum Shopping shall be
appended to all initiatory pleadings EXCEPT a
Motion to Refer the Dispute to Alternative Dispute
Resolution. (Rule 1.5) 
Prohibited submissions
The following pleadings, motions, or petitions shall
not be allowed in the cases governed by the Special
ADR Rules and shall not be accepted for filing by
the Clerk of Court:
1. Motion to dismiss;
2. Motion for bill of particulars;
3. Motion for new trial or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension, except in cases where an
ex-parte temporary order of protection has
been issued;
6. Rejoinder to reply;
7. Motion to declare a party in default; and
8. Any other pleading specifically disallowed
under any provision of the Special ADR Rules.
(Rule 1.6)
Service and filing of pleadings, motions and
other papers in NON-SUMMARY proceedings
131
1. Initiatory pleadings
The initiatory pleadings shall be filed directly
with the court. The court will then cause the
initiatory pleading to be served upon the
respondent by personal service or courier.
2. Action is already pending
Pleadings, motions and other papers shall be
filed and/or served by the concerned party by
personal service or courier. Where courier
services are not available, resort to registered
mail is allowed. (Rule 1.8)
Proof of filing
The filing of a pleading shall be proved:
1. By its existence in the record of the case;
2. By the written or stamped acknowledgment of
its filing by the clerk of court on a copy of the
same (if filed personally); or
3. By the proof of delivery from the courier
company (if filed by courier). (Rule 1.8-A)
Proof of service
A. Proof of personal service shall consist of:
1. Written admission by the party served;
2. Official return of the server; or
3. Affidavit of the party serving, containing a full
statement of the date, place and manner of
service.
B. Proof of service by courier shall consist of:
Affidavit of the proper person, stating facts
showing that the document was deposited with
the courier company in a sealed envelope,
plainly addressed to the party at his office, if
known, otherwise at his residence, with
postage fully pre-paid, and with instructions to
the courier to immediately provide proof of
delivery. (Rule 1.8-B)
Filing and service by electronic means and
proof thereof
Filing and service by electronic means may be
allowed by agreement of the parties and if approved
by the court. If the filing or service of a pleading or
motion was done by electronic transmission, proof
of filing and service shall be made in accordance
with the Rules on Electronic Evidence. (Rule 1.8-C)
No summons
In cases covered by the Special ADR Rules, a court
acquires authority to act on the petition or motion
upon proof of jurisdictional facts, i.e., that the
respondent was furnished a copy of the petition and
the notice of hearing. (Rule 1.9)
Proof of service of the petition and notice of
hearing upon respondent shall:
1. Be made in writing by the server; and
2. Set forth the manner, place and date of service.
(Rule 1.9-A)
3. Burden of proof that a copy of the petition and
the notice of hearing were served on the
respondent rests on the petitioner. (Rule 1.9-B)
Note: The technical rules on service of summons
do not apply to the proceedings under the Special
ADR Rules. However, if service is not made
personally, the method of service resorted to must
be such as to reasonably ensure receipt thereof by
the respondent to satisfy the requirement of due
process.
Contents of petition/motion
The initiatory pleading in the form of a verified
petition or motion, in the appropriate case where
court proceedings have already commenced, shall
include:
132
1. Names of the parties; Note: Article 8, 10, 11, 12, 13, 14, 18 and 19 and
2. Addresses of the parties; and 29 to 32 of the Model Law and Section 22 to 31 of
3. Necessary allegations supporting the petition the Chapter 4 (International Commercial
and the relief(s) sought. (Rule 1.10) Arbitration) of R.A. 9285 shall apply to domestic
arbitration. (Section 33 of R.A. 9285)
Definition of Terms
(from Special ADR Rules, Arbitration Law,
Alternative Dispute Resolution Act, and Model Law)

Alternative Dispute Resolution (ADR) System

Any process or procedure used to resolve a dispute
or controversy, other than by adjudication of a
presiding judge of a court or an officer of a Foreign Arbitration
government agency, as defined in this Act, in which
a neutral third party participates to assist in the
resolution of issues, which includes arbitration,
mediation, conciliation, early neutral evaluation,
mini-trial, or any combination thereof. (Section 3 of
R.A. 9285)

ADR Laws Arbitration that takes place in another state.

Refers to the whole body of ADR laws in the
Philippines. (Rule 1.11)

Arbitration
A voluntary dispute resolution process in which one
or more arbitrators, appointed in accordance with
the agreement of the parties, or rules promulgated
pursuant to this Act, resolve a dispute by rendering Commercial Arbitration
an award. (Section 3 of R.A. 9285)

Types of Arbitration

An arbitration is commercial if it covers matter

Domestic Arbitration
Arbitration that is not international as defined in
Article 1(3) of the Model Law. (Article 1.6, IRR of
R.A. 9285)
arising from all relationships of a commercial
nature, whether contractual or not. (Section 3(g)
of R.A. 9285) Relationships of a transactions: any
trade transaction for the supply or exchange of
goods or services; distribution agreements;
construction of works; commercial representation
or agency; factoring; leasing, consulting;
engineering; licensing; investment; financing;
banking; insurance; joint venture and other forms
of industrial or business cooperation; carriage of
goods or passengers by air, sea, rail or road.
(Section 21 of R.A. 9285)

Note: Domestic arbitration shall continue to be

governed by R.A. 876 (Arbitration Law), as
amended by R.A. 9285 (Alternative Dispute
Resolution Act of 2004). (Section 32 of R.A.
9285)

133
 International Commercial Arbitration
International Arbitration:
An arbitration is international if:
1. The parties to an arbitration agreement
have, at the time of the conclusion of that
agreement, their places of business in
different States; or
2. One of the following places is situated
outside the State in which the parties have
their places of business:
a. the place of arbitration if
determined in, or pursuant to, the
arbitration agreement;
b. any place where a substantial
part of the obligations of the commercial
relationship is to be performed or the
place with which the subject-matter of
the dispute is most closely connected; or
3. The parties have expressly agreed that
the subject-matter of the arbitration
agreement relates to more than one country.
(Article 1(3) of the Model Law)
Note: International commercial arbitration is
governed by the United Nations Commission on
International Trade Law (UNCITRAL) Model Law
on International Commercial Arbitration (Model
Law).
Foreign arbitration and international arbitration
are not the same
An arbitration that takes place in State A is a foreign
arbitration in State B. It does not matter whether the
arbitration is commercial or non-commercial or
whether the parties are from the same country, from
different countries or that one or all are from State
A. Since even a domestic arbitration in State A is a
foreign arbitration in State B, the courts of State B
would be called upon to apply the New York
Convention to enforcement of a clause calling for
arbitration in State A and to the enforcement of any
award that would result. (United Nations, Dispute
Settlement: International Commercial
Arbitration, 2005, p.12)
Appointing Authority
Person or institution named in the arbitration
agreement as the appointing authority; or the
regular arbitration institution under whose rule the
arbitration is agreed to be conducted. Where the
parties have agreed to submit their dispute to
institutional arbitration rules, and unless they have
agreed to a different procedure, they shall be
deemed to have agreed to procedure under such
arbitration rules for the selection and appointment of
arbitrators. In ad hoc arbitration, the default
appointment of arbitrators shall be made by the
National President of the Integrated Bar of the
Philippines or his duly authorized representative.
(Rule 1.11)
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Types of arbitral awards
Domestic Arbitral Award
One made in a domestic arbitration in the
Philippines, which is governed by the Arbitration
Law, as amended.
Foreign Arbitral Award
One made in a country other than the Philippines.
(Rule 1.11) The recognition and enforcement of a
foreign arbitral award shall be governed by the 1958
New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (New York
Convention) and the Special ADR Rules. (Rule 13.4)
Convention Award
A foreign arbitral award made in a Convention State
(party to the New York Convention). (Section 3 of
R.A. 9285)
Non-Convention Award
A foreign arbitral award made in a State which is not
a Convention State. (Section 3 of R.A. 9285)
Spirit and intent of the Special ADR Rules
In situations where no specific rule is provided
under the Special ADR Rules, the court shall
resolve such matter summarily and be guided by
the spirit and intent of the Special ADR Rules and
the ADR Laws. (Rule 1.13)
RULE 2
STATEMENT OF POLICIES
Policy on arbitration
(A) Where the parties have agreed to submit their
dispute to arbitration, courts shall refer the
parties to arbitration pursuant to R.A. 9285
(Alternative Dispute Resolution Act of 2004)
bearing in mind that such arbitration agreement
is the law between the parties and that they are
expected to abide by it in good faith. Further,
the courts shall not refuse to refer parties to
arbitration for reasons including, but not limited
to, the following:
1. The referral tends to oust a court of its
jurisdiction;
2. The court is in a better position to resolve the
dispute subject of arbitration;
3. The referral would result in multiplicity of suits;
4. The arbitration proceeding has not
commenced;
5. The place of arbitration is in a foreign country;
6. One or more of the issues are legal and one or
more of the arbitrators are not lawyers;
7. One or more of the arbitrators are not
Philippine nationals; or
8. One or more of the arbitrators are alleged not
to possess the required qualification under the
arbitration agreement or law. (Rule 2.2-A)
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(B) Where court intervention is allowed under ADR
Laws or the Special ADR Rules, courts shall
not refuse to grant relief, as provided herein, for
any of the following reasons:
1. Prior to the constitution of the arbitral tribunal,
the court finds that the principal action is the
subject of an arbitration agreement; or
2. The principal action is already pending before
an arbitral tribunal. (Rule 2.2-B)
Principle of Competence-Competence
The arbitral tribunal may initially rule on its own
jurisdiction, including any objections with respect to
the existence or validity of the arbitration agreement
or any condition precedent to the filing of a request
for arbitration.
Principle of Separability of the Arbitration
Clause
Said clause shall be treated as an agreement
independent of the other terms of the contract of
which it forms part. A decision that the contract is
null and void shall not entail ipso jure the invalidity
of the arbitration clause.
Rules governing arbitral proceedings
The parties are free to agree on the procedure to be
followed in the conduct of arbitral proceedings.
Failing such agreement, the arbitral tribunal may
conduct arbitration in the manner it considers
appropriate. (Rule 2.3)
Policy implementing competence-competence
principle
1. The arbitral tribunal shall be accorded the first
opportunity or competence to rule on the issue
of whether or not it has the competence or
jurisdiction to decide a dispute submitted to it
for decision, including any objection with
respect to the existence or validity of the
arbitration agreement.
Note: When a court is asked to rule upon
issue/s affecting the competence or jurisdiction
of an arbitral tribunal in a dispute brought
before it, either before or after the arbitral
tribunal is constituted, the court must exercise
judicial restraint and defer to the competence
or jurisdiction of the arbitral tribunal by allowing
the arbitral tribunal the first opportunity to rule
upon such issues.
2. Where the court is asked to make a
determination of whether the arbitration
agreement is null and void, inoperative or
incapable of being performed, under this policy
of judicial restraint, the court must make no
more than a prima facie determination of that
issue.
Note: Unless the court, pursuant to such prima
facie determination, concludes that the
arbitration agreement is null and void,
inoperative or incapable of being performed,
the court must suspend the action before it and
refer the parties to arbitration pursuant to the
arbitration agreement. (Rule 2.4)
Policy on mediation
The Special ADR Rules do not apply to Court-
Annexed Mediation (CAM), which shall be governed
by issuances of the Supreme Court.
Note: Where the parties have agreed to submit
their dispute to mediation, a court before which that
dispute was brought shall suspend the proceedings
and direct the parties to submit their dispute to
private mediation. If the parties subsequently agree,
however, they may opt to have their dispute settled
through CAM. (Rule 2.5)
Policy on Arbitration-Mediation or Mediation-
Arbitration
No arbitrator shall act as a mediator in any
proceeding in which he is acting as arbitrator (and
vice versa). All negotiations towards settlement of
136
the dispute must take place without the presence of
that arbitrator. (Rule 2.6)
Conversion of a settlement agreement to an
arbitral award
Where the parties to mediation have agreed in the
written settlement agreement that the mediator shall
become the sole arbitrator for the dispute or that the
settlement agreement shall become an arbitral
award, the sole arbitrator shall issue the settlement
agreement as an arbitral award, which shall be
subject to enforcement under the law. (Rule 2.7)
PART II
SPECIFIC COURT RELIEF
RULE 3
JUDICIAL RELIEF INVOLVING THE ISSUE OF
EXISTENCE, VALIDITY AND ENFORCEABILITY
OF THE ARBITRATION AGREEMENT
When judicial relief is available
The judicial relief provided in Rule 3, whether
resorted to before or after commencement of
arbitration, shall apply only when the place of
arbitration is in the Philippines. (Rule 3.1)
A. Judicial Relief BEFORE Commencement of
Arbitration
Who may file petition
Any party to an arbitration agreement. (Rule 3.2)
When the petition may be filed
The petition may be filed at any time PRIOR to the
commencement of arbitration. (Rule 3.3)
Note: Despite the pendency of the petition provided
herein, arbitral proceedings may nevertheless be
commenced and continue to the rendition of an
award, while the issue is pending before the court.
(Rule 3.3)
Venue
The petition may be filed before the Regional Trial
Court that has jurisdiction over the place where any
of the petitioners or respondents has his:
1. Principal place of business; or
2. Residence. (Rule 3.4)
Grounds
Arbitration agreement is, under the applicable law:
1. Invalid;
2. Void;
3. Unenforceable; or
4. Inexistent. (Rule 3.5)
Court action; judicial restraint
In resolving the petition, the court must exercise
judicial restraint in accordance with the policy set
forth in Rule 2.4, DEFERRING to the competence
or jurisdiction of the arbitral tribunal to rule on its
competence or jurisdiction. (Rule 3.8)
Application for interim relief
If the petitioner also applies for an interim measure
of protection, he must also comply with the
requirements of the Special ADR Rules for the
application for an interim measure of protection.
(Rule 3.10)
Relief against court action
A prima facie determination by the court upholding
the existence, validity or enforceability of an
arbitration agreement shall NOT be subject to a
motion for reconsideration, appeal or certiorari.
(Rule 3.11)
Such prima facie determination will NOT,
however, prejudice the right of any party to
raise the issue of the existence, validity and
enforceability of the arbitration agreement
before the arbitral tribunal or the court in an
action to vacate or set aside the arbitral award.
In the latter case, the court’s review of the arbitral
tribunal’s ruling shall no longer be limited to a mere
prima facie determination of such issue or issues as
prescribed in this Rule, but shall be a full review of
such issue or issues with due regard, however, to
the standard for review for arbitral awards
prescribed in these Special ADR Rules. (Rule 3.11)
B. Judicial Relief AFTER Arbitration
Commences
Who may file petition
Any party to arbitration may file a petition for judicial
relief from the ruling of the arbitral tribunal on a
preliminary question upholding or declining its
jurisdiction. (Rule 3.12)
Note: Should the ruling of the arbitral tribunal
declining its jurisdiction be reversed by the court,
the parties shall be free to replace the arbitrators or
any one of them in accordance with the rules that
were applicable for the appointment of arbitrator
sought to be replaced. (Rule 3.12)
137

When petition may be filed
The petition may be filed within 30 days after having
received notice of that ruling by the arbitral tribunal.
(Rule 3.13)
Venue
The petition may be filed before the Regional Trial
Court of the place:
1. Where arbitration is taking place; or
2. Where any of the petitioners or respondents
has his principal place of business or
residence. (Rule 3.14)
Court action (Rule 3.18)
1. No injunction of arbitration proceedings
The court shall NOT enjoin the arbitration
proceedings during the pendency of the
petition. (Judicial recourse to the court shall
NOT prevent the arbitral tribunal from
continuing the proceedings and rendering its
award.)
2. When dismissal of petition is appropriate
The court shall dismiss the petition:
a. If the petition fails to comply with Rule
3.16; or
b. If upon consideration of the grounds
alleged and the legal briefs submitted by the
parties, the petition does not appear to be prima
facie meritorious.
Relief against court action
1. The aggrieved party may file a Motion for
Reconsideration of the order of the court.
Note: The decision of the court shall, however,
not be subject to appeal. The ruling of the court
affirming the arbitral tribunal’s jurisdiction shall
not be subject to a petition for certiorari.
2. The ruling of the court that the arbitral tribunal
has no jurisdiction may be the subject of a
Petition for Certiorari. (Rule 3.19)
Where no petition is allowed
Where the arbitral tribunal defers its ruling on
preliminary question regarding its jurisdiction until
its final award, the aggrieved party CANNOT seek
judicial relief to question the deferral and must await
the final arbitral award before seeking appropriate
judicial recourse.
A ruling by the arbitral tribunal deferring resolution
on the issue of its jurisdiction until final award, shall
NOT be subject to a motion for reconsideration,
appeal or a petition for certiorari. (Rule 3.20)
Rendition of arbitral award BEFORE court
decision on petition from arbitral tribunal’s
preliminary ruling on jurisdiction
If the arbitral tribunal renders a final arbitral award
and the Court has not rendered a decision on the
petition from the arbitral tribunal’s preliminary ruling
affirming its jurisdiction, that petition shall become
ipso facto moot and academic and shall be
DISMISSED by the Regional Trial Court, without
prejudice to the right of the aggrieved party to raise
the same issue in a timely petition to vacate or set
aside the award. (Rule 3.21)
Note: Arbitral tribunal is only a nominal party. (Rule
3.22)
RULE 4: REFERRAL TO ADR
Who makes the request
A party to a pending action filed in violation of the
arbitration agreement, whether contained in an
arbitration clause or in a submission agreement,
may request the court to refer the parties to
138
arbitration in accordance with such agreement.
(Rule 4.1)
When to make request (Rule 4.2)
1. Where the arbitration agreement exists
before the action is filed
The request for referral shall be made not later
than the pre-trial conference. After the pre-trial
conference, the court will only act upon the
request for referral if it is made with the
agreement of all parties to the case.
2. Where there is no existing arbitration
agreement at the time the case is filed but
the parties subsequently enter into an
arbitration agreement
The parties may request the court to refer their
dispute to arbitration at any time during the
proceedings. (Submission Agreement)
Court action
After hearing, the court shall:
1. Stay the action; and
2. Refer the parties to arbitration
if it finds prima facie, based on the pleadings and
supporting documents submitted by the parties,
that:
1. There is an arbitration agreement; and
2. The subject-matter of the dispute is capable of
settlement or resolution by arbitration in
accordance with Section 6 of the ADR Act.
Otherwise, the court shall continue with the judicial
proceedings. (Rule 4.5)
No reconsideration, appeal or certiorari
1. An order referring the dispute to arbitration
shall be immediately executory and shall NOT
be subject to a motion for reconsideration,
appeal or petition for certiorari.
2. An order denying the request to refer the
dispute to arbitration shall NOT be subject to
an appeal, but may be the subject of a motion
for reconsideration and/or a petition for
certiorari. (Rule 4.6)
Multiple actions and parties
The court shall NOT decline to refer some or all of
the parties to arbitration for any of the following
reasons:
1. Not all of the disputes subject of the civil action
may be referred to arbitration;
2. Not all of the parties to the civil action are
bound by the arbitration agreement and referral
to arbitration would result in multiplicity of suits;
3. The issues raised in the civil action could be
speedily and efficiently resolved in its entirety
by the court rather than in arbitration;
4. Referral to arbitration does not appear to be the
most prudent action; or
5. The stay of the action would prejudice the
rights of the parties to the civil action who are
not bound by the arbitration agreement. (Rule
4.7)
Note: The court may, however, issue an order
directing the inclusion in arbitration of those parties
who are not bound by the arbitration agreement but
who agree to such inclusion provided those
originally bound by it do not object to their inclusion.
(Rule 4.7)
Arbitration to proceed
Despite the pendency of the action referred to in
Rule 4.1, arbitral proceedings may nevertheless be
commenced or continued, and an award may be
made, while the action is pending before the court.
(Rule 4.8)
RULE 5
INTERIM MEASURES OF PROTECTION
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Who may ask for interim measures of protection
A party to an arbitration agreement may petition the
court for interim measures of protection. (Rule 5.1)
When to petition
A petition for an interim measure of protection may
be made:
1. Before arbitration is commenced;
2. After arbitration is commenced, but before the
constitution of the arbitral tribunal; or
3. After the constitution of the arbitral tribunal and
at any time during arbitral proceedings but, at
this stage, only to the extent that the arbitral
tribunal has no power to act or is unable to act
effectively. (Rule 5.2)
the petitioner are meritorious where the petitioner
alleges in the petition that there is an urgent need to
either:
1. Preserve property;
2. Prevent the respondent from disposing of, or
concealing, the property; or
3. Prevent the relief prayed for from becoming
illusory because of prior notice. (Rule 5.7)
Court action (Rule 5.9)
1. Where the other parties fail to file their
opposition on or before the day of the
hearing

Venue
A petition for an interim measure of protection may
be filed with the Regional Trial Court, which has The court shall motu proprio render judgment
jurisdiction over any of the following places: only on the basis of the allegations in the
1. Where the principal place of business of any of petition that are substantiated by supporting
the parties to arbitration is located; documents and limited to what is prayed for
2. Where any of the parties who are individuals therein.
resides;
3. Where any of the acts sought to be enjoined
are being performed, threatened to be
performed or not being performed; or
4. Where the real property subject of arbitration,
or a portion thereof is situated. (Rule 5.3)
2. Where based solely on the petition, the
Grounds (not exclusive) court finds that there is an urgent need to
1. The need to prevent irreparable loss or injury; either:
2. The need to provide security for the
performance of any obligation;
3. The need to produce or preserve evidence; or
4. The need to compel any other appropriate act
or omission. (Rule 5.4)
Type of interim measure of protection that a
court may grant a. Preserve property;
1. Preliminary injunction directed against a party b. Prevent the respondent from disposing of,
to arbitration; or concealing, the property; or
2. Preliminary attachment against property or c. Prevent the relief prayed for from
garnishment of funds in the custody of a bank becoming illusory because of prior notice
or a third person;
3. Appointment of a receiver;
4. Detention, preservation, delivery or inspection
of property; or
5. Assistance in the enforcement of an interim
measure of protection granted by the arbitral
tribunal, which the latter cannot enforce The court shall:
effectively. (Rule 5.6)

Dispensing with prior notice in certain cases

Prior notice to the other party may be dispensed
with when the court finds that the reason/s given by

140
1. Issue an immediately executory temporary
order of protection (TPO); and
2. Require the petitioner, within 5 days from
receipt of that order, to post a BOND to answer for
any damage that respondent may suffer as a result
of its order.
Ex-parte TPO
The ex-parte TPO shall be valid only for a period of
twenty (20) days from the service on the party
required to comply with the order. Within that
period, the court shall:
a. Furnish the respondent a copy of the petition
and a notice requiring him to comment thereon
on or before the day the petition will be heard;
and
b. Notify the parties that the petition shall be
heard on a day specified in the notice, which
must not be beyond the 20-day period of the
effectivity of the ex-parte order.
Counter-bond
The respondent has the option of having the TPO
lifted by posting an appropriate counter-bond as
determined by the court.
Relief against court action
If respondent was given an opportunity to be heard
on a petition for an interim measure of protection,
any order by the court shall be immediately
executory, but may be the subject of a/an:
1. Motion for reconsideration; and/or
2. Appeal; or,
3. Petition for certiorari (if warranted). (Rule 5.10)
Duty of the court to refer back
The court shall not deny an application for
assistance in implementing or enforcing an interim
measure of protection ordered by an arbitral tribunal
on any or all of the following grounds:
a. The arbitral tribunal granted the interim relief ex
parte; or
b. The party opposing the application found new
material evidence, which the arbitral tribunal
had not considered in granting in the
application, and which, if considered, may
produce a different result
Note: If it finds that there is sufficient merit in
the opposition to the application based on letter
(b), the court shall REFER the matter back to
the arbitral tribunal for appropriate
determination; or
c. The measure of protection ordered by the
arbitral tribunal amends, revokes, modifies or is
inconsistent with an earlier measure of
protection issued by the court. (Rule 5.11)
Security
The order granting an interim measure of protection
may be conditioned upon the provision of security,
performance of an act, or omission thereof,
specified in the order. The Court may not change or
increase or decrease the security ordered by the
arbitral tribunal. (Rule 5.12)
Modification, amendment, revision or revocation
of court’s previously issued interim measure of
protection
1. Any court order granting or denying interim
measure/s of protection is issued without
prejudice to subsequent grant, modification,
amendment, revision or revocation by the
arbitral tribunal as may be warranted.
2. An interim measure of protection issued by the
arbitral tribunal shall, upon its issuance be
deemed to have ipso jure modified,
amended, revised or revoked an interim
measure of protection previously issued by the
court to the extent that it is inconsistent with the
subsequent interim measure of protection
issued by the arbitral tribunal. (Rule 5.13)
Conflict or inconsistency between interim
measure of protection issued by the court and
by the arbitral tribunal
Any question involving a conflict or inconsistency
between an interim measure of protection issued by
the court and by the arbitral tribunal shall be
immediately referred by the court to the arbitral
tribunal which shall have the authority to decide
such question. (Rule 5.14)
Court to defer action on petition for an interim
measure of protection when informed of
constitution of the arbitral tribunal
The court shall defer action on any pending petition
for an interim measure of protection filed by a party
141
to an arbitration agreement arising from or in
connection with a dispute thereunder upon being
informed that an arbitral tribunal has been
constituted pursuant to such agreement. The court
may act upon such petition only if it is established
by the petitioner that the arbitral tribunal has no
power to act on any such interim measure of
protection or is unable to act thereon effectively.
(Rule 5.15)
Court assistance should arbitral tribunal be
unable to effectively enforce interim measure of
protection
The court shall assist in the enforcement of an
interim measure of protection issued by the arbitral
tribunal which it is unable to effectively enforce.
(Rule 5.16)
RULE 6
APPOINTMENT OF ARBITRATORS
When the court may act as Appointing Authority
The court shall act as Appointing Authority only in
the following instances:
1. Institutional Arbitration
a. Where any of the parties failed or refused
to appoint an arbitrator; or
b. When the parties have failed to reach an
agreement on the sole arbitrator (in an
arbitration before a sole arbitrator); or
c. When the two designated arbitrators have
failed to reach an agreement on the third
or presiding arbitrator (in an arbitration
before a panel of three arbitrators), and
the institution under whose rules
arbitration is to be conducted fails or is
unable to perform its duty as appointing
authority within a reasonable time from
receipt of the request for appointment;
2. Ad Hoc Arbitration
a. Where the parties failed to provide a
method for appointing or replacing an
arbitrator, or substitute arbitrator, or the
method agreed upon is ineffective; AND
b. The National President of the Integrated
Bar of the Philippines (IBP) or his duly
authorized representative fails or refuses
to act within such period as may be
allowed under the pertinent rules of the
IBP or within such period as may be
agreed upon by the parties, or in the
absence thereof, within thirty (30) days
from receipt of such request for
appointment.
3. When the Appointing Authority fails or refuses
to act or appoint an arbitrator within a
reasonable time from receipt of the request to
do so
Who may request for appointment
Any party to an arbitration. (Rule 6.2)
Venue
The petition for appointment of arbitrator may be
filed, at the option of the petitioner, in the Regional
Trial Court:
1. Where the principal place of business of any of
the parties is located;
2. If any of the parties are individuals, where
those individuals reside; or
3. In the National Capital Region. (Rule 6.3)
Court action
After hearing the petition for appointment of
arbitrator, the court shall either:
1. Appoint an arbitrator (if it finds merit in the
petition); or,
2. Dismiss the petition. (Rule 6.7)
142
 Note: At any time after the petition is filed and
before the court makes an appointment, it shall
also dismiss the petition upon being informed
that the Appointing Authority has already made
the appointment. (Rule 6.7)
Relief against court action
1. An order APPOINTING an arbitrator
a. Shall be immediately executory;
and
b. Not be the subject of a motion for
reconsideration, appeal or certiorari.
2. An order of the court DENYING the petition for
appointment of an arbitrator
a. May be the subject of a:
i.Motion for reconsideration;
ii. Appeal; or
iii. Certiorari. (Rule 6.9)
RULE 7
CHALLENGE TO APPOINTMENT OF
ARBITRATOR
Who may challenge
Any of the parties to an arbitration may challenge
an arbitrator. (Rule 7.1)
When challenge may be raised in court
1. When an arbitrator is challenged before the
arbitral tribunal under the procedure agreed
upon by the parties or under the procedure
provided for in Article 13(2) of the Model Law
and the challenge is not successful:
The aggrieved party may request the
Appointing Authority to rule on the
challenge.
2. When such Appointing Authority fails or refuses
to act on the challenge within such period as
may be allowed under the applicable rule or in
the absence thereof, within 30 days from
receipt of the request:
The aggrieved party may renew the
challenge in court. (Rule 7.2)
Venue
The challenge shall be filed with the Regional Trial
Court:
1. Where the principal place of business of any of
the parties is located;
2. If any of the parties are individuals, where
those individuals reside; or
3. In the National Capital Region. (Rule 7.3)
Grounds
An arbitrator may be challenged on any of the
grounds for challenge provided for in:
143
 A. R.A. 9285 (Alternative Dispute Resolution Act
of 2004) and its Implementing Rules
1. International Commercial
Arbitration
a. Circumstances exist that give rise to
justifiable doubts as to impartiality or independence
of the arbitrator; or
b. Arbitrator does not possess qualifications
agreed to by the parties. (Article 4.12 of IRR)
2. Domestic Arbitration
a. Circumstances exist that give rise to
justifiable doubts as to the impartiality or
independence of the arbitrator;
b. Arbitrator does not possess qualifications
as provided for in Chapter 5 (Domestic Arbitration)
or those agreed to by the parties;
c. Arbitrator is disqualified to act as
arbitration under the IRR
Qualifications/Disqualifications: Any
person appointed to serve as an arbitrator
must be of legal age, in full enjoyment of
his/her civil rights and knows how to read
and write. No person appointed to serve as
an arbitrator shall be related by blood or
marriage within the sixth degree to either
party to the controversy. No person shall
serve as an arbitrator in any proceeding if
he/she has or has had financial, fiduciary
or other interest in the controversy or
cause to be decided or in the result of the
proceeding, or has any personal bias,
which might prejudice the right of any party
to a fair and impartial award. No party shall
select as an arbitrator any person to act as
his/her champion or to advocate his/her
cause. (5.10 of IRR); or
d. Arbitrator refuses to respond to questions
by a party regarding the nature and extent of his
professional dealings with a party or its counsel.
(5.11 of IRR)
B. R.A. 876 (Arbitration Law)
When the arbitrator is not qualified to be
such.
Qualifications/Disqualifications: Any person
appointed to serve as an arbitrator must be of
legal age, in full-enjoyment of his civil rights
and know how to read and write. No person
appointed to serve as an arbitrator shall be
related by blood or marriage within the sixth
degree to either party to the controversy. No
person shall serve as an arbitrator in any
proceeding if he has or has had financial,
fiduciary or other interest in the controversy or
cause to be decided or in the result of the
proceeding, or has any personal bias, which
might prejudice the right of any party to a fair
and impartial award. No party shall select as an
144
 arbitrator any person to act as his champion or
to advocate his cause. (Section 10 of R.A.
876)
b.
c.
C. Model Law
1. Circumstances exist that give rise to
justifiable doubts as to the impartiality or
independence of the arbitrator; or
2. Arbitrator does not possess qualifications
agreed to by the parties. (Article 12 of the Model
Law)
Note: The nationality or professional qualification of
an arbitrator is NOT a ground to challenge an
arbitrator UNLESS the parties have specified in
their arbitration agreement a nationality and/or
professional qualification for appointment as
arbitrator. (Rule 7.4)
Court action
After hearing, the court shall:
1. Remove the challenged arbitrator if it finds
merit in the petition; otherwise, it shall dismiss
the petition.
2. Allow the challenged arbitrator who
subsequently agrees to accept the challenge to
withdraw as arbitrator.
3. Accept the challenge and remove the arbitrator
in the following cases:
a. The party or parties who named and
appointed the challenged arbitrator agree to the
challenge and withdraw the appointment.
The other arbitrators in the arbitral tribunal
agree to the removal of the challenged arbitrator;
and
The challenged arbitrator fails or refuses to
submit his comment on the petition or the brief of
legal arguments as directed by the court, or in such
comment or legal brief, he fails to object to his
removal following the challenge. (Rule 7.7)
Basis of decision of the court
The court shall decide the challenge on the basis of
the evidence submitted by the parties in the
following instances:
1. The other arbitrators in the arbitral tribunal
agree to the removal of the challenged
arbitrator; and
2. If the challenged arbitrator fails or refuses to
submit his comment on the petition or the brief
of legal arguments as directed by the court, or
in such comment or brief of legal arguments,
he fails to object to his removal following the
challenge. (Rule 7.7)
Note: Any order of the court resolving the petition
shall be immediately executory and shall NOT be
the subject of a motion for reconsideration, appeal,
or certiorari. (Rule 7.8)
RULE 9
ASSISTANCE IN TAKING EVIDENCE
Who may request assistance
Any party to an arbitration, whether domestic or
foreign, may request the court to provide assistance
in taking evidence. (Rule 9.1)
When assistance may be sought
Assistance may be sought at any time during the
course of the arbitral proceedings when the need
arises. (Rule 9.2)
Venue
145
A petition for assistance in taking evidence may, at
the option of the petitioner, be filed with Regional
Trial Court where:
1. Arbitration proceedings are taking place;
2. The witnesses reside or may be found; or
3. Where the evidence may be found. (Rule 9.3)
Ground
The court may grant or execute the request for
assistance in taking evidence within its competence
and according to the rules of evidence. (Rule 9.4)
Type of assistance
A party requiring assistance in the taking of
evidence may petition the court to direct any
person, including a representative of a corporation,
association, partnership or other entity (other than a
party to the ADR proceedings or its officers) found
in the Philippines, for any of the following:
1. To comply with a subpoena ad
testificandum and/or subpoena duces tecum;
2. To appear as a witness before an officer for the
taking of his deposition upon oral examination
or by written interrogatories;
3. To allow the physical examination of the
condition of persons, or the inspection of things
or premises and, when appropriate, to allow the
recording and/or documentation of condition of
persons, things or premises (i.e., photographs,
video and other means of
recording/documentation);
4. To allow the examination and copying of
documents; and
5. To perform any similar acts. (Rule 9.5)
Court action
If the evidence sought is not privileged, and is
material and relevant, the court shall:
1. Grant the assistance in taking evidence
requested; and
2. Order petitioner to pay costs attendant to such
assistance. (Rule 9.8)
Relief against court action
1. The order GRANTING assistance in taking
evidence shall be immediately executory and
NOT subject to reconsideration or appeal.
2. If the court DECLINES to grant assistance in
taking evidence, the petitioner may file a:
a. Motion for reconsideration; or
b. Appeal. (Rule 9.9)
RULE 10
CONFIDENTIALITY/PROTECTIVE ORDERS
Who may request confidentiality
A party, counsel or witness who disclosed or who
was compelled to disclose information relative to
the subject of ADR under circumstances that would
create a reasonable expectation, on behalf of the
source, that the information shall be kept
confidential has the right to prevent such
information from being further disclosed without the
express written consent of the source or the party
who made the disclosure. (Rule 10.1)
When request made
A party may request a protective order at any time
there is a need to enforce the confidentiality of the
information obtained, or to be obtained, in ADR
proceedings. (Rule 10.2)
Venue
1. A petition for a protective order may be filed
with the Regional Trial Court where that order
would be implemented.
2. A motion to enjoin the confidential information
from being divulged or to suppress confidential
information may be filed with the court where
the proceedings are pending and in which the
information obtained in an ADR proceeding is
required to be divulged or is being divulged.
(Rule 10.3)
Grounds
A protective order may be granted only if it is shown
that the applicant would be materially prejudiced by
146
an unauthorized disclosure of the information
obtained, or to be obtained, during an ADR
proceeding. (Rule 10.4)
Court action
1. If the court finds the petition or motion
meritorious, it shall issue an order enjoining a
person or persons from divulging confidential
information.
2. In resolving the petition or motion, the courts
shall be guided by the following principles
applicable to all ADR proceedings:
Confidential information shall not be subject to
discovery and shall be inadmissible in any
adversarial proceeding, whether judicial or
quasi judicial.
Note: However, evidence or information that is
otherwise admissible or subject to discovery
does not become inadmissible or protected
from discovery solely by reason of its use
therein.
3. For MEDIATION proceedings, the court shall
be further guided by the following principles:
a. Information obtained through mediation shall
be privileged and confidential.
b. A party, a mediator, or a nonparty participant
may refuse to disclose and may prevent any
other person from disclosing a mediation
communication.
c. In such an adversarial proceeding, the
following persons involved or previously
involved in a mediation may not be compelled
to disclose confidential information obtained
during the mediation: (1) the parties to the
dispute; (2) the mediator or mediators; (3) the
counsel for the parties: (4) the nonparty
participants; (5) any persons hired or engaged
in connection with the mediation as secretary,
stenographer; clerk or assistant; and (6) any
other person who obtains or possesses
confidential information by reason of his/ her
profession.
d. The protection of the ADR Laws shall continue
to apply even if a mediator is found to have
failed to act impartially.
e. A mediator may not be called to testify to
provide information gathered in mediation. A
mediator who is wrongfully subpoenaed shall
be reimbursed the full cost of his attorney fees
and related expenses. (Rule 10.8)
Relief against court action
1. The order ENJOINING a person or persons
from divulging confidential information shall be
immediately executory and may not be
enjoined while the order is being questioned
with the appellate courts.
2. If the court DECLINES TO ENJOIN a person or
persons from divulging confidential information,
the petitioner may file a/an:
a. Motion for reconsideration; or
b. Appeal. (Rule 10.9)
RULE 11
CONFIRMATION, CORRECTION OR VACATION
OF AWARD IN DOMESTIC ARBITRATION
This rule applies only to awards in DOMESTIC
Arbitrations.
Who may request confirmation, correction or
vacation
Any party to a domestic arbitration may petition the
court to confirm, correct or vacate a domestic
arbitral award. (Rule 11.1)
When to request confirmation,
correction/modification or vacation (Rule 11.2)
1. Confirmation
147
 At any time after the lapse of 30 days from
receipt by the petitioner of the arbitral award,
he may petition the court to confirm that award.
2. Correction/Modification
Not later than 30 days from receipt of the
arbitral award, a party may petition the court to
correct/modify that award.
3. Vacation
Not later than 30 days from receipt of the
arbitral award, a party may petition the court to
vacate that award.
4. Petition to vacate the arbitral award in
opposition to a petition to confirm the
arbitral award
Not later than 30 days from receipt of the
award by the petitioner. Otherwise, it shall be
dismissed.
5. Petition to confirm the arbitral award in
opposition to a petition to vacate the
arbitral award
At any time after the petition to vacate such
arbitral award is filed.
Note: The dismissal of the petition to vacate
the arbitral award for having been filed beyond
the reglementary period shall not result in the
dismissal of the petition for the confirmation of
such arbitral award.
Note: The filing of a petition to confirm an
arbitral award shall not authorize the filing of a
belated petition to vacate or set aside such
award in opposition thereto.
6. Petition to correct an arbitral award
May be included as part of a petition to confirm
the arbitral award or as a petition to confirm
that award.
Venue
The petition for confirmation, correction/modification
or vacation of a domestic arbitral award may be
filed with Regional Trial Court having jurisdiction
over the place:
1. Where one of the parties is doing business;
2. Where any of the parties reside; or
3. Where arbitration proceedings were conducted.
(Rule 11.3)
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Grounds (Rule 11.4)
(A) To vacate an arbitral award:
(Note: The grounds are exclusive.)
1. The arbitral award was procured through
corruption, fraud or other undue means;
2. There was evident partiality or corruption in the
arbitral tribunal or any of its members;
3. The arbitral tribunal was guilty of misconduct or
any form of misbehavior that has materially
prejudiced the rights of any party such as
refusing to postpone a hearing upon sufficient
cause shown or to hear evidence pertinent and
material to the controversy;
4. One or more of the arbitrators was disqualified
to act as such under the law and willfully
refrained from disclosing such disqualification;
or
5. The arbitral tribunal exceeded its powers, or so
imperfectly executed them, such that a
complete, final and definite award upon the
subject matter submitted to them was not
made.
6. The arbitration agreement did not exist, or is
invalid for any ground for the revocation of a
contract or is otherwise unenforceable; or
7. A party to arbitration is a minor or a person
judicially declared to be incompetent.
merits of the decision upon the matter
submitted;
3. Where the arbitrators have omitted to resolve
an issue submitted to them for resolution; or
4. Where the award is imperfect in a matter of
form not affecting the merits of the controversy,
and if it had been a commissioner’s report, the
defect could have been amended or
disregarded by the Court.
Court action
1. Unless a ground to vacate an arbitral award
under Rule 11.5 is fully established, the court
shall confirm the award.
An arbitral award shall enjoy the
presumption that it was made and
released in due course of arbitration and is
subject to confirmation by the court.

2. In resolving the petition or petition in

opposition, the court shall either confirm or
vacate the arbitral award.
Note: When based on this ground, the petition
shall be filed only on behalf of the minor or
incompetent and shall allege that:

The court shall NOT disturb the arbitral

tribunal’s determination of facts and/or
interpretation of law. (Rule 11.9)
a. The other party to arbitration had
knowingly entered into a submission or agreement
with such minor or incompetent; or
b. The submission to arbitration was
made by a guardian or guardian ad litem who was
not authorized to do so by a competent court.

(B) To correct/modify an arbitral award: Referral back to the same or new arbitral
1. Where there was an evident miscalculation of tribunal
figures or an evident mistake in the description 1. In petitions to:
of any person, thing or property referred to in a. Vacate an award; or
the award;
2. Where the arbitrators have awarded upon a
matter not submitted to them, not affecting the

149
b. Vacate an award in opposition to
a petition to confirm the award
The petitioner may simultaneously apply with the
Court to refer the case back to the same arbitral
tribunal to:
a. Make a new or revised award;
b. Direct a new hearing; or
c. In the appropriate case, order the
new hearing before a new arbitral tribunal, the
members of which shall be chosen in the manner
provided in the arbitration agreement or submission,
or the law. In the latter case, any provision limiting
the time in which the arbitral tribunal may make a
decision shall be deemed applicable to the new
arbitral tribunal.
2. In referring the case back to the arbitral tribunal
or to a new arbitral tribunal pursuant to Rule 24
of Republic Act No. 876, the court may NOT
direct it to:
a. Revise its award in a particular
way; or
b. Revise its findings of fact or
conclusions of law or otherwise encroach upon the
independence of an arbitral tribunal in the making of
a final award. (Rule 11.10)
Multi-party arbitration
1. Agreement of the parties
In this multi-party arbitration among the lender,
the borrower and the third party securing the
loan, the parties may agree to submit to
arbitration before a sole arbitrator or a panel of
three arbitrators to be appointed either by an
Appointing Authority designated by the parties
in the arbitration agreement or by a default
Appointing Authority under the law.
2. In default of an agreement
In default of an agreement on the manner of
appointing arbitrators or of constituting the
arbitral tribunal in such multi-party arbitration,
the dispute shall be resolved by a panel of
three arbitrators to be designated by the
Appointing Authority under the law. But even in
default of an agreement on the manner of
appointing an arbitrator or constituting an
arbitral tribunal in a multi-party arbitration, if the
borrower and the third party securing the loan
agree to designate a common arbitrator,
arbitration shall be decided by a panel of three
arbitrators: one to be designated by the lender;
the other to be designated jointly by the
borrower and the provider of security who have
agreed to designate the same arbitrator; and a
third arbitrator who shall serve as the
chairperson of the arbitral panel to be
designated by the two party-designated
arbitrators. (Rule 11.10)
RULE 12
RECOGNITION AND ENFORCEMENT OR
SETTING ASIDE OF AN INTERNATIONAL
COMMERCIAL ARBITRATION AWARD.
See definitions of international arbitration (Article
1(3) of Model Law) and commercial arbitration
(Section 3(g) of R.A. 9285) in the discussion under
Rule 1.
Who may request recognition and enforcement
or setting aside
Any party to an international commercial arbitration
where the venue of arbitration is in the Philippines.
(Rule 12.1)
When to file a petition to recognize and enforce
an arbitral award may be made:
1. Anytime from receipt of the award; or
2. Within the period for filing an opposition, if a
timely petition to set aside an arbitral award is
filed.
When to file a petition to set aside
Only within 3 months from the time the petitioner
receives a copy thereof.
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Failure to file a petition to set aside shall preclude a
party from raising grounds to resist enforcement of
the award.
Note: If a timely request is made with the arbitral
tribunal for correction, interpretation or additional
award, the 3-month period shall be counted from
the time the petitioner receives the resolution by the
arbitral tribunal of that request.
Note: Dismissal of the petition to set aside an
arbitral for being time-barred shall not automatically
result in the approval of the petition filed therein and
in opposition thereto for the recognition an
enforcement of the same award. (Rule 12.2)
Where to file a petition to recognize and enforce
or set aside an arbitral award
At the option of the petitioner, in the Regional Trial
court:
1. Where arbitration proceedings were conducted;
or
2. Where any of the assets to be attached or
levied upon is located; or
3. Where the act to be enjoined will be or is being
performed; or
4. Where any of the parties to arbitration resides
or has its place of business; or
5. In the National Capital Judicial Region (Rule
12.3)
The court may set aside or refuse the
enforcement of the arbitral award only if:
1. The party making the application furnishes
proof that:
a. A party to the arbitration
agreement was under some incapacity, or the said
agreement is not valid under the law to which the
parties have subjected it or, failing any indication
thereof, under Philippine law; or
b. The party making the application
to set aside or resist enforcement was not given
proper notice of the appointment of an arbitrator or
of the arbitral proceedings or was otherwise unable
to present his case; or
c. The award deals with a dispute
not contemplated by or not falling within the terms
of the submission to arbitration; provided that, if the
decisions on matters submitted to arbitration can be
separated from those not so submitted, only that
part of the award which contains decisions on
matters not submitted to arbitration may be set
aside or only that part of the award which contains
decisions on matters submitted to arbitration may
be enforced; or
d. The composition of the arbitral
tribunal or the arbitral procedure was not in
accordance with the agreement of the parties,
unless such agreement was in conflict with a
provision of Philippine law from which the parties
cannot derogate, or, failing such agreement, was
not in accordance with Philippine law.
2. The court finds that:
a. The subject- matter of the dispute
is not capable of settlement by arbitration under the
law of the Philippines; or
b. The recognition or enforcement of
the award would be contrary to public policy. (Rule
12.4)
Exclusive recourse to a court against an arbitral
award
Recourse to a court against an arbitral award shall
be made only through a petition to set aside the
arbitral award and on the grounds prescribed by the
law that governs international commercial
arbitration. This recourse is exclusive and any other
151
recourse such as appeal or petition for review or
petition for certiorari shall be dismissed by the court.
(Rule 12.5)
Note: When a petition to recognize and enforce an
arbitral award is pending, the application to set it
aside, if not yet time-barred, shall be made through
a petition to set aside the same award in the same
proceedings.
When a timely petition to set aside an arbitral award
is filed, the opposing party may file a petition for
recognition and enforcement of the same award in
opposition thereto. (Rule 12.6)
Proceedings of the case
During the hearing, the affidavits of witnesses shall
take the place of their direct testimonies and they
shall immediately be subject to cross-examination
thereon. The court shall have full control over the
proceedings to ensure that the case is heard
without undue delay. (Rule 12.10)
Suspension of proceedings to set aside
Where appropriate and upon request by a party, the
court may suspend the proceedings for a period of
time determined by it to give the arbitral tribunal an
opportunity to resume the arbitral proceedings and
to take such other action as in the arbitral tribunal’s
opinion will eliminate the grounds for setting aside.
The court, in referring the case back to the arbitral
tribunal may not direct it to revise its award in a
particular way, or to revise its findings of fact or
conclusions of law or otherwise encroach upon the
independence of an arbitral tribunal in the making of
a final award.
Note: The court when asked to set aside an arbitral
award may also, when the preliminary ruling of an
arbitral tribunal affirming its jurisdiction to act on the
matter before it had been appealed by the party
aggrieved by such preliminary ruling to the court,
suspend the proceedings to set aside to await the
ruling of the court on such pending appeal or, in the
alternative, consolidate the proceedings to set aside
with the earlier appeal. (Rule 12.11)
Presumption in favor of confirmation
Unless the adverse party is able to establish a
ground for setting aside or not enforcing an arbitral
award, the presumption is that an arbitral award
was made and released in due course and is
subject to enforcement by the court. (Rule 12.12)
Judgment of the Court
Unless a ground to set aside an arbitral award
under Rule 12.4 is fully established, the court shall
dismiss the petition.
If, in the same proceedings, there is a petition to
recognize and enforce the arbitral award filed in
opposition to set aside, the court shall recognize
and enforce the award.
In resolving the petition or petition in opposition
thereto, the court shall either set aside or enforce
the arbitral award.
The court shall not disturb the arbitral tribunal’s
determination of facts and/or interpretation of law.
(Rule 12.13)
Costs
General Rule: The party praying for recognition
and enforcement or setting aside of an arbitral
award shall submit a statement under oath
confirming the costs he has incurred only in the
proceedings for such recognition and enforcement
or setting aside. The costs shall include the
attorney’s fees the party has paid or is committed to
pay to his counsel of record.
Exception: If otherwise agreed upon by the parties
in writing.
Note: The prevailing party shall be entitled to an
award of costs, which shall include reasonable
attorney’s fees of the prevailing party against the
unsuccessful party. The court shall determine the
reasonableness of the claim for attorney’s fees.
RULE 13
RECOGNITION AND ENFORCEMENT OF A
FOREIGN ARBITRAL AWARD
Who may request recognition and enforcement
Any party to a foreign arbitration. (Rule 13.1)
When to petition
At any time after receipt of a foreign arbitral award,
any party to arbitration may petition the proper
Regional Trial Court to recognize and enforce such
award. (Rule 13.2)
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Venue
At the option of the petitioner, with the Regional
Trial Court:
1. Where the assets to be attached or levied upon
is located;
2. Where the act to be enjoined is being
performed;
3. In the principal place of business in the
Philippines or any of the parties;
4. If any of the parties is an individual, where any
of those individuals resides; or
5. In the National Capital Judicial Region (Rule
13.3)
Governing Law and Grounds to refuse
recognition and enforcement
The recognition and enforcement of a foreign
arbitral award shall be governed by the 1958 New
York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (the “New
York Convention”) and this Rule.
The court may upon grounds of comity and
reciprocity, recognize and enforce a foreign arbitral
award made in a country that is not a signatory to
the New York Convention as if it were a Convention
Award.
A Philippine court shall not set aside a foreign
arbitral award but may refuse it recognition and
enforcement on any or all of the following grounds:
1. The party making the application to refuse
recognition and enforcement of the award
furnishes proof that:
a. A party to the arbitration
agreement was under some incapacity; or the said
agreement is not valid under the law to which the
parties have subjected it or, failing any indication
thereof, under the law of the country where the
award was made; or
b. The party making the application
was not given proper notice of the appointment of
an arbitrator or of the arbitral proceedings or was
otherwise unable to present his case; or
c. The award deals with a dispute
not contemplated by or not falling within the terms
of the submission to arbitration, or contains
decisions on matters beyond the scope of the
submission to arbitration; provided that, if the
decisions on matters submitted to arbitration can be
separated from those not so submitted, only that
part of the award which contains decisions on
matters not submitted to arbitration may be set
aside; or
d. The composition of the arbitral
tribunal or the arbitral procedure was not in
accordance with the agreement of the parties of,
failing such agreement, was not in accordance with
the law of the country where arbitration took place;
or
e. The award has not yet become
binding on the parties or has been set aside or
suspended by a court of the country in which that
award was made; or
2. The court finds that:
a. The subject-matter of the dispute
is not capable of settlement or resolution by
arbitration under Philippine law; or
b. The recognition or enforcement of
the award would be contrary to public policy.
The court shall disregard any ground for
opposing the recognition and enforcement of a
foreign arbitral award other than those
enumerated above. (Rule 13.4)
Adjournment/ deferment of decision on
enforcement of award
The court before which a petition to recognize and
enforce a foreign arbitral award is pending, may
adjourn or defer rendering a decision thereon if, in
the meantime, an application for the setting aside or
suspension of the award has been made with a
competent authority in the country where the award
was made.
Upon application of the petitioner, the court may
also require the other party to give suitable security.
(Rule 13.10)
Court Action
It is presumed that a foreign arbitral award was
made and released in due course of arbitration and
is subject to enforcement by the court.
The court shall recognize and enforce a foreign
arbitral award unless a ground to refuse recognition
153
 or enforcement of the foreign arbitral award under 1. When motion for reconsideration with the RTC
this rule is full established. is allowed:

The decision of the court recognizing and enforcing

a foreign arbitral award is immediately executory.

In resolving the petition for recognition and

enforcement of a foreign arbitral award in
accordance with these Special ADR Rules, the a. That the arbitration agreement is inexistent,
court shall either: invalid or unenforceable pursuant to Rule
3.10 (B);
b. Upholding or reversing the arbitral tribunal’s
jurisdiction pursuant to Rule 3.19;
c. Denying a request to refer the parties to
arbitration;
d. Granting or denying a party an interim
1. Recognize and/or enforce; or measure of protection;
2. Refuse to recognize and enforce the e. Denying a petition for the appointment of an
arbitral award. arbitrator;
f. Refusing to grant assistance in taking
evidence;
g. Enjoining or refusing to enjoin a person
from divulging confidential information;
h. Confirming, vacating or correcting a
domestic arbitral award;
The court shall not disturb the arbitral tribunal’s i. Suspending the proceedings to set aside
determination of facts and/or interpretation of law. an international commercial arbitral award
(Rule 13.11) and referring the case back to the arbitral
tribunal;
Recognition and enforcement of non- j. Setting aside an international commercial
convention award
arbitral award;
The court shall, only upon grounds provided by
these Special ADR Rules, recognize and enforce a k. Dismissing the petition to set aside an
foreign arbitral award made in a country not a international commercial arbitral award,
signatory to the New York Convention when such even if the court does not recognize and/or
country extends comity and reciprocity to awards enforce the same;
made in the Philippines. l. Recognizing and/or enforcing, or dismissing
a petition to recognize and/or enforce an
If that country does not extend comity and international commercial arbitral award;
reciprocity to awards made in the Philippines, the m. Declining a request for assistance in taking
court may nevertheless treat such award as a evidence;
foreign judgement enforceable as such under Rule n. Adjourning or deferring a ruling on a
39, Section 48, of the Rules of Court. (Rule 13.12) petition to set aside, recognize and/or
enforce an international commercial arbitral
PART VI award;
MOTION FOR RECONSIDERATION, APPEAL
AND CERTIORARI
o. Recognizing and/or enforcing a foreign
arbitral award, or refusing recognition
RULE 19
and/or enforcement of the same; and
MOTION FOR RECONSIDERATION, APPEAL
AND CERTIORARI p. Granting or dismissing a petition to enforce
A. MOTION FOR RECONSIDERATION a deposited mediated settlement
agreement. (Rule 19.1)

154

2. When motion for reconsideration of the rulings
of the RTC is NOT allowed:
a. A prima facie determination upholding the
existence, validity or enforceability of an
arbitration agreement pursuant to Rule 3.1
(A);
b. An order referring the dispute to arbitration;
c. An order appointing an arbitrator;
d. Any ruling on the challenge to the
appointment of an arbitrator;
e. Any order resolving the issue of the
termination of the mandate of an arbitrator;
and
f. An order granting assistance in taking
evidence. (Rule 19.1)
When to move for reconsideration
A motion for reconsideration may be filed with the
Regional Trial Court within a non-extendible period
of 15 days from receipt of the questioned ruling or
order. (Rule 19.2)
Resolution of motion
A motion for reconsideration shall be resolved
within 30 days from receipt of the opposition or
comment or upon the expiration of the period to file
such opposition or comment. (Rule 19.5)
Note: No party shall be allowed a second motion for
reconsideration. (Rule 19.6)
B. GENERAL PROVISIONS ON APPEAL AND
CERTIORARI
No appeal or certiorari on the merits of an
arbitral award
An agreement to refer a dispute to arbitration shall
mean that the arbitral award shall be final and
binding. Consequently, a party to an arbitration is
precluded from filing an appeal or a petition for
certiorari questioning the merits of an arbitral award.
(Rule 19.7)
Subject matter and governing rules
The remedy of an appeal through a petition for
review or the remedy of a special civil action of
certiorari from a decision of the Regional Trial Court
made under the Special ADR Rules shall be
allowed in the instances, and instituted only in the
manner, provided under this Rule. (Rule 19.8)
Prohibited alternative remedies
Where the remedies of appeal and certiorari are
specifically made available to a party under the
Special ADR Rules, recourse to one remedy shall
preclude recourse to the other. (Rule 19.9)
Rule on judicial review on arbitration in the
Philippines
General Rule:
The court can only vacate or set aside the decision
of an arbitral tribunal upon a clear showing that the
award suffers from any of the infirmities or grounds
for vacating an arbitral award under:
1. Section 24 of R.A. 876 (domestic arbitration);
2. Rule 34 of the Model Law (domestic arbitration);
3. Article 34 of the Model Law (international
arbitration); or
4. Other grounds provided under these Special
Rules. (Rule 19.10)
Grounds for vacating an arbitral award
Domestic Arbitration
Section 24 of R.A. 876
1. The award was procured by corruption, fraud,
or other undue means; or
2. That there was evident partiality or corruption
in the arbitrators or any of them; or
155
3. That the arbitrators were guilty of misconduct
in refusing to postpone the hearing upon
sufficient cause shown, or in refusing to hear
evidence pertinent and material to the
controversy; that one or more of the
arbitrators was disqualified to act as such
under section nine hereof, and wilfully
refrained from disclosing such
disqualifications or of any other misbehavior
by which the rights of any party have been
materially prejudiced; or
4. That the arbitrators exceeded their powers, or
so imperfectly executed them, that a mutual,
final and definite award upon the subject
matter submitted to them was not made.
2. The court finds that:
a. The subject-matter of the dispute is not
International Commercial Arbitration
Article 34 of the Model Law
b.
1. The party making the application furnishes
proof that:
a. A party to the arbitration agreement
referred to in article 7 was under some
incapacity; or the said agreement is not valid
under the law to which the parties have
subjected it or, failing any indication thereon,
under the law of this State; or
b. The party making the application was not
given proper notice of the appointment of an
arbitrator or of the arbitral proceedings or was
otherwise unable to present his case; or
c. The award deals with a dispute not
contemplated by or not falling within the terms
of the submission to arbitration, or contains
decisions on matters beyond the scope of the
submission to arbitration, provided that, if the
decisions on matters submitted to arbitration
can be separated from those not so
submitted, only that part of the award which
contains decisions on matters not submitted
to arbitration may be set aside; or
d. The composition of the arbitral tribunal or
the arbitral procedure was not in accordance
with the agreement of the parties, unless such
agreement was in conflict with a provision of
this Law from which the parties cannot
derogate, or, failing such agreement, was not
in accordance with this Law; or
capable of settlement by arbitration under the
law of this State; or
The award is in conflict with the public policy
of this State.
Domestic Arbitration
Rule 11.4 of the Special ADR Rules
1. The arbitral award was procured through
corruption, fraud or other undue means;
2. There was evident partiality or corruption
in the arbitral tribunal or any of its members;
3. The arbitral tribunal was guilty of
misconduct or any form of misbehavior that
has materially prejudiced the rights of any
party such as refusing to postpone a hearing
upon sufficient cause shown or to hear
evidence pertinent and material to the
controversy;
156
4. One or more of the arbitrators was
disqualified to act as such under the law and
willfully refrained from disclosing such
disqualification; or
5. The arbitral tribunal exceeded its
powers, or so imperfectly executed them,
such that a complete, final and definite award
upon the subject matter submitted to them
was not made.
6. The arbitration agreement did not exist,
or is invalid for any ground for the revocation
of a contract or is otherwise unenforceable;
or
7. A party to arbitration is a minor or a
person judicially declared to be incompetent.
Note: When based on this ground, the
petition shall be filed only on behalf of the
minor or incompetent and shall allege that:
a. The other party to arbitration had
knowingly entered into a submission or
agreement with such minor or incompetent;
or
b. The submission to arbitration was made
by a guardian or guardian ad litem who was
not authorized to do so by a competent court.
International Commercial Arbitration
Rule 12.4 of the Special ADR Rules
1. The party making the application
furnishes proof that:
2. The court finds that:
a. A party to the arbitration
agreement was under some incapacity,
or the said agreement is not valid under
the law to which the parties have
subjected it or, failing any indication
thereof, under Philippine law; or
b. The party making the
application to set aside or resist
enforcement was not given proper notice
of the appointment of an arbitrator or of
the arbitral proceedings or was
otherwise unable to present his case; or
c. The award deals with a dispute
not contemplated by or not falling within
the terms of the submission to
arbitration; provided that, if the decisions
on matters submitted to arbitration can
be separated from those not so
submitted, only that part of the award
which contains decisions on matters not
submitted to arbitration may be set aside
or only that part of the award which
contains decisions on matters submitted
to arbitration may be enforced; or
d. The composition of the arbitral
tribunal or the arbitral procedure was not
in accordance with the agreement of the
parties, unless such agreement was in
conflict with a provision of Philippine law
from which the parties cannot derogate,
or, failing such agreement, was not in
accordance with Philippine law.
a. The subject- matter of the
157
 dispute is not capable of settlement by
arbitration under the law of the
Philippines; or
b. The recognition or enforcement
of the award would be contrary to public
policy.
Exception: If the Regional Trial Court is asked
to set aside an arbitral award in a domestic or
international arbitration on any ground OTHER
THAN those provided in the Special ADR
Rules, the court shall entertain such ground for
the setting aside or non-recognition of the
arbitral award only if the same amounts to a
violation of public policy. (Rule 19.10)
Note: The court shall not set aside or vacate the
award of the arbitral tribunal merely on the ground
that the arbitral tribunal committed errors of fact, or
of law, or of fact and law, as the court cannot
substitute its judgment for that of the arbitral
tribunal. (Rule 19.10)
Rule on judicial review of foreign arbitral award
The court can deny recognition and enforcement of
a foreign arbitral award only upon the grounds
provided in Article V of the New York Convention,
but shall have no power to vacate or set aside a
foreign arbitral award. (Rule 19.11)
Grounds to deny recognition and enforcement
of a foreign arbitral award under the New York
Convention
Article V of the New York Convention
1. Recognition and enforcement of the
award may be refused, at the request of the
party against whom it is invoked, only if that
party furnishes to the competent authority
where the recognition and enforcement is
sought, proof that:
a. The parties to the agreement referred to
in article II were, under the law applicable to
them, under some incapacity, or the sad
agreement is not valid under the law to which
the parties have subjected it or, failing any
indications thereon, under the law of the
country where the award was made; or
b. The party against whom the award is
invoked was not given proper notice of the
appointment of the arbitrator or of the
arbitration proceedings or was otherwise
unable to present his case;
c. The award deals with a difference not
contemplated by or not falling within the terms
of the submission to arbitration, or it contains
decisions on matters beyond the scope of the
submission to arbitration, provided that, if the
decisions on matters submitted to arbitration
can be separated from those not submitted,
that part of the award which contains
decisions on matters submitted to arbitration
may be recognized and enforced; or
d. The composition of the arbitral authority
or the arbitral procedure was not in
accordance with the agreement of the parties,
or, failing such agreement, was not in
accordance with the law of the country where
the arbitration took place; or
e. The award has not yet become binding
on the parties, or has been set aside or
suspended by a competent authority of the
country in which, or under the law of which,
that award was made.
2. Recognition and enforcement of an
arbitral award may also be refused if the
competent authority in the country where
recognition and enforcement is sought finds
that:
158
 a. The subject matter of the difference is not
capable of settlement by arbitration under the
law of that country; or
b. The recognition or enforcement of the
award would be contrary to the public policy
of that country.
1. APPEALS TO THE COURT OF
APPEALS
Appeal to the Court of Appeals through a petition
for review under this Special Rule shall only be
allowed from the following final orders of the
Regional Trial Court:
1. Granting or denying an interim measure of
protection;
2. Denying a petition for appointment of an
arbitrator;
3. Denying a petition for assistance in taking
evidence;
4. Enjoining or refusing to enjoin a person from
divulging confidential information;
5. Confirming, vacating or correcting/modifying a
domestic arbitral award;
6. Setting aside an international commercial
arbitration award;
7. Dismissing the petition to set aside an
international commercial arbitration award even
if the court does not decide to recognize or
enforce such award;
8. Recognizing and/or enforcing an international
commercial arbitration award;
9. Dismissing a petition to enforce an international
commercial arbitration award;
10. Recognizing and/or enforcing a foreign arbitral
award;
11. Refusing recognition and/or enforcement of a
foreign arbitral award;
12. Granting or dismissing a petition to enforce a
deposited mediated settlement agreement; and
13. Reversing the ruling of the arbitral tribunal
upholding its jurisdiction. (Rule 19.12)
Where to appeal
An appeal under this Rule shall be taken to the
Court of Appeals within the period and in the
manner herein provided. (Rule 19.13)
When to appeal
The petition for review shall be filed within 15 days
from notice of the decision of the Regional Trial
Court or the denial of the petitioner’s motion for
reconsideration. (Rule 19.14)
Effect of appeal
The appeal shall NOT stay the award, judgment,
final order or resolution sought to be reviewed
unless the Court of Appeals directs otherwise upon
such terms as it may deem just. (Rule 19.22)
Subject of appeal restricted in certain instance
If the decision of the Regional Trial Court refusing to
recognize and/or enforce, vacating and/or setting
aside an arbitral award is premised on a finding of
fact, the Court of Appeals may inquire only into
such fact to determine the existence or non-
existence of the specific ground under the
arbitration laws of the Philippines relied upon by the
Regional Trial Court to refuse to recognize and/or
enforce, vacate and/or set aside an award. (Rule
19.24)
Note: Any such inquiry into a question of fact shall
NOT be resorted to for the purpose of substituting
the court’s judgment for that of the arbitral tribunal
as regards the latter’s ruling on the merits of the
controversy. (Rule 19.24)
Party appealing decision of court confirming
arbitral award required to post bond
The Court of Appeals shall within 15 days from
receipt of the petition require the party appealing
from the decision or a final order of the Regional
Trial Court, either confirming or enforcing an arbitral
award, or denying a petition to set aside or vacate
the arbitral award to post a BOND executed in favor
159
of the prevailing party equal to the amount of the
award. (Rule 19.25) Failure of the petitioner to post
such bond shall be a ground for the Court of
Appeals to DISMISS the petition. (Rule 19.25)
D. SPECIAL CIVIL ACTION FOR CERTIORARI
Certiorari to the Court of Appeals
When the Regional Trial Court, in making a ruling
under the Special ADR Rules, has acted without or
in excess of its jurisdiction, or with grave abuse of
discretion amounting to lack or excess of
jurisdiction, and there is no appeal or any plain,
speedy, and adequate remedy in the ordinary
course of law, a party may file a special civil action
for certiorari to annul or set aside a ruling of the
Regional Trial Court.
A special civil action for certiorari may be filed
against the following orders of the court:
1. Holding that the arbitration agreement is
inexistent, invalid or unenforceable;
2. Reversing the arbitral tribunal’s preliminary
determination upholding its jurisdiction;
3. Denying the request to refer the dispute to
arbitration;
4. Granting or refusing an interim relief;
5. Denying a petition for the appointment of an
arbitrator;
6. Confirming, vacating or correcting a domestic
arbitral award;
7. Suspending the proceedings to set aside an
international commercial arbitral award and
referring the case back to the arbitral tribunal;
8. Allowing a party to enforce an international
commercial arbitral award pending appeal;
9. Adjourning or deferring a ruling on whether to
set aside, recognize and or enforce an
international commercial arbitral award;
10. Allowing a party to enforce a foreign arbitral
award pending appeal; and
11. Denying a petition for assistance in taking
evidence. (Rule 19.26)
When to file petition; no extension of time
The petition must be filed with the Court of Appeals
within 15 days from notice of the judgment, order or
resolution sought to be annulled or set aside. No
extension of time to file the petition shall be allowed.
(Rule 19.28)
Note: Arbitral tribunal is a nominal party in the
petition for certiorari. (Rule 19.29) Arbitral tribunal
should not be included even as a nominal party in
petitions relating to the recognition and enforcement
of a foreign arbitral award. (Rule 19.29)
Court to dismiss petition
The court shall dismiss the petition if:
1. It fails to comply with Rules 19.27 and 19.28
above; or
2. If, upon consideration of the ground alleged and
the legal briefs submitted by the parties, the
petition does not appear to be prima facie
meritorious. (Rule 19.30)
Arbitration may continue despite petition for
certiorari
A petition for certiorari to the court from the action of
the appointing authority or the arbitral tribunal
allowed under this Rule shall NOT prevent the
arbitral tribunal from continuing the proceedings and
rendering its award. Should the arbitral tribunal
continue with the proceedings, the arbitral
proceedings and any award rendered therein will be
subject to the final outcome of the pending petition
for certiorari. (Rule 19.32)
Prohibition against injunctions
The Court of Appeals shall not, during the pendency
of the proceedings before it, prohibit or enjoin the
commencement of arbitration, the constitution of the
arbitral tribunal, or the continuation of arbitration.
(Rule 19.33)
E. APPEAL BY CERTIORARI TO THE SUPREME
COURT
Review discretionary
A review by the Supreme Court is not a matter of
right, but of sound judicial discretion, which will be
granted only for serious and compelling reasons
resulting in grave prejudice to the aggrieved party.
The following, while neither controlling nor fully
measuring the court's discretion, indicate the
serious and compelling, and necessarily, restrictive
nature of the grounds that will warrant the exercise
of the Supreme Court’s discretionary powers, when
the Court of Appeals:
1. Failed to apply the applicable standard or test
for judicial review prescribed in these Special
ADR Rules in arriving at its decision resulting in
substantial prejudice to the aggrieved party;
2. Erred in upholding a final order or decision
despite the lack of jurisdiction of the court that
rendered such final order or decision;
3. Failed to apply any provision, principle, policy or
rule contained in these Special ADR Rules
160
 resulting in substantial prejudice to the
aggrieved party;
4. Committed an error so egregious and harmful to
a party as to amount to an undeniable excess of
jurisdiction; and
5. Ground closely analogous thereto. (Rule 19.36)
documents which should accompany the
petition; or
2. Appeal is without merit, or is prosecuted
manifestly for delay, or that the questions raised
therein are too insubstantial to require
consideration. (Rule 19.41)

Note: The mere fact that the petitioner disagrees END OF TOPIC
with the Court of Appeals’ determination of
questions of fact, of law or both questions of fact
and law, shall not warrant the exercise of the
Supreme Court’s discretionary power. (Rule 19.36)

Filing of petition with Supreme Court

A party desiring to appeal by certiorari from a
judgment or final order or resolution of the Court of
Appeals issued pursuant to these Special ADR
Rules may file with the Supreme Court a verified
petition for review on certiorari. The petition shall J. INTERVENTION
raise only QUESTIONS OF LAW, which must be (Rule 19)
distinctly set forth. (Rule 19.37)

Time for filing

The petition shall be filed within 15 days from notice
of the judgment or final order or resolution appealed
from, or of the denial of the petitioner's motion for
new trial or reconsideration filed in due time after
notice of the judgment. (Rule 19.38)

Extension to file
On motion duly filed and served, with full payment 1. REQUISITES FOR
of the docket and other lawful fees and the deposit
for costs before the expiration of the reglementary INTERVENTION
period, the Supreme Court may for justifiable 2. TIME TO INTERVENE
reasons grant an extension of thirty (30) days only 3. REMEDY FOR THE DENIAL OF
within which to file the petition. (Rule 19.38)
MOTION TO INTERVENE
Docket and other lawful fees; proof of service of
INTERVENTION
petition
A legal proceeding by which a person who is NOT a
Unless he has theretofore done so or unless the
party to the action is permitted by the court to
Supreme Court orders otherwise, the petitioner
become a party by intervening in a pending action
shall pay docket and other lawful fees to the clerk of
after meeting the conditions and requirement set by
court of the Supreme Court of P3,500.00 and
the Rules of Court.
deposit the amount of P500.00 for costs at the time
of the filing of the petition. Proof of service of a copy
Its main purpose is to settle in one action and by a
thereof on the lower court concerned and on the
single judgment all conflicting claims of, or the
adverse party shall be submitted together with the
whole controversy among, the persons involved.
petition. (Rule 19.39)
(Office of the Ombudsman vs. Maximo Sison, G.R.
Dismissal or denial of petition 185954, 2010)
Grounds:
Who May Intervene
1. Failure to comply with any of the requirements
1. Has a legal interest in the matter in litigation;
regarding the payment of the docket and other
lawful fees, deposit for costs, proof of service of
the petition, and the contents of and the

161
2. Has legal interest in the success of either of the
parties;
3. Has an interest against both parties; or
4. A party that is so situated as to be adversely
affected by a distribution or other disposition of
property in the custody of the court or of an
officer thereof.
Legal Interest
One that is actual and material, direct and of an
immediate character, not merely contingent or
expectant.
Intervention is NOT an absolute right (nor is it
compulsory or mandatory), as it is within the court’s
discretion to grant it.
Intervention is an ancillary and supplemental
proceeding to an existing litigation. Thus, the final
dismissal of the principal action results in the denial
of the motion to intervene.
A law firm whose services were unjustly terminated
was allowed to intervene in the case despite the
compromise agreement between the parties.
(Czarina Malvar vs Kraft Foods [G.R. 183952,
2013)
A complaint-in-intervention can’t be treated as an
independent action as it is merely ancillary to and a
supplement upon the principal action. The
complaint-in-intervention essentially latches on the
complaint for its legal efficacy so much so that the
dismissal of the complaint leads to its concomitant
dismissal. (Sta. Rita Co vs Angeline Gueco, G.R.
193087, 2013)
The trial court must not only determine if the
requisite legal interest is present, but also take into
consideration the delay and the consequent
prejudice to the original parties that the intervention
will cause. Both requirements must concur, as the
first requirement on legal interest is not more
important than the second requirement that no
delay and prejudice should result.  To help ensure
that delay does not result from the granting of a
motion to intervene, the Rules also explicitly say
that intervention may be allowed only before
rendition of judgment by the trial court. (Lorenza C.
Ongco vs Valeriana Ungco Dalisay, G.R. No.
190810, 2012)
1. REQUISITES FOR
INTERVENTION
1. There must be a motion for intervention filed
BEFORE rendition of judgment.
2. Movant must show in his/her motion that he/she
has legal interest in the matter in litigation, in
the success of either of the parties in the action,
or against both parties.
3. The movant must show that he/she is situated
as to be adversely affected by a distribution or
other disposition of property in the custody of the
court.
4. Intervention must not unduly delay or
prejudice the adjudication of the rights of the
original parties.
5. Intervenor’s rights may not be fully protected in
a separate proceeding.
2. TIME TO INTERVENE
General Rule: May only be filed BEFORE judgment
is rendered by the trial court.
Exceptions:
1. With respect to indispensable parties,
intervention may be allowed even on appeal.
2. When the intervenor is the Republic.
3. Where intervention is necessary to protect some
interest which cannot otherwise be protected,
and for the purpose of preserving the
intervenor’s right to appeal.
3. REMEDY OF DENIAL OF MOTION
TO INTERVENE
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 5. QUASHING OF SUBPOENA
Denial of a motion to intervene DOES NOT
constitute res judicata. Remedy of the intervenor is 1. SUBPOENA DUCES TECUM
to file a SEPARATE ACTION.

The intervenor can also APPEAL or file for
MANDAMUS if there is grave abuse of discretion.
If there is improper grant of intervention, remedy of
the party is CERTIORARI.
A process directed to a person requiring him to
bring with him books, documents, or other things
under his control at a scheduled hearing.

END OF TOPIC

2. SUBPOENA AD TESTIFICANDUM

A process directed to a person, requiring him to

attend and to testify at a hearing or trial of an action,
or at any investigation conducted by a competent
authority, or for the taking of his deposition.
K. SUBPOENA
(Rule 21)

3. SERVICE OF SUBPOENA

A subpoena:
1. Shall state the name of the court and the title of
the action or investigation;
2. It shall be directed to the person whose
1. SUBPOENA DUCES TECUM attendance is required; and
2. SUBPOENA AD TESTIFICANDUM 3. In a subpoena duces tecum, it shall contain a
3. SERVICE OF SUBPOENA reasonable description of the books, documents
or things demanded which must appear to the
4. COMPELLING ATTENDANCE OF court prima facie relevant.
WITNESSES; CONTEMPT

163
By Whom Issued
A subpoena may be issued by:
1. The Court before whom the witness is required
to attend
2. The Court of the place where the deposition is to
be taken
3. The Officer or Body authorized by law to issue a
subpoena in connection with investigations
conducted by said officer of body
4. Any Justice of the Supreme Court or of the
Court of Appeals in any case or investigation
pending within the Philippines
A Subpoena is Served:
1. In the same manner as personal or substituted
service of summons
2. The original must be exhibited and a copy
delivered to the person on whom it is served
3. The fees for one day attendance and
kilometrage allowed by the Rules shall be
tendered to such person
4. Service must be made as to allow the witness a
reasonable time for preparation and travel to the
place of attendance
5. The reasonable cost of producing the books,
documents or things demanded shall be
tendered if it is a subpoena duces tecum.
A Subpoena May be Served By:
1. Sheriff;
2. Deputy sheriff;
3. Other proper court officer; or
4. For any justifiable reason, by any suitable
person authorized by the court issuing the
subpoena
4. COMPELLING ATTENDANCE OF
WITNESSES; CONTEMPT
Contempt
If the subpoena was issued by a court
– failure by any person without adequate cause to
obey a subpoena served on him shall be deemed
contempt of the court from which the subpoena is
issued;
If subpoena is NOT issued by a court
– the disobedience shall be punished in accordance
with applicable law
Exceptions
1. Witness resides more than 100 km away from
the place where he is to testify.
2. Witness is a detention prisoner and there was
no permission obtained from the court in which
the case is pending.
Only a judicial officer and quasi-judicial officer
specifically authorized by law can exercise the
power of contempt in relation to subpoena.
(Nazareno v. Barnes, G.R. No. L-59072, 1984)
The failure of a server to pursue substituted service
after a frustrated attempt to personally serve the
complainant a copy of the subpoena constitutes
simple neglect of duty. (Macaspec v. Flores, A.M.
No. P-05-2072, 2008)
3. No advance of reasonable cost of production of
such books and documents was made.
4. Witness fees and kilometrage allowed by the
rules were not tendered when the subpoena
was served.

In Case of Failure of a Witness to

Attend
The court which issued the subpoena may issue a
warrant to arrest the witness upon proof of service 5. QUASHING A SUBPOENA
of such subpoena.

Witness to pay cost of warrant and seizure if failure

is willful and without just excuse.

Grounds to Quash a Subpoena Ad

Testificandum

164
1. The witness is not bound by such subpoena
2. When the witness fees and kilometrage allowed
by the Rules were not tendered when the
subpoena was served
Grounds to Quash a Subpoena Duces Tecum
UPON MOTION Promptly Made
1. It is unreasonable and oppressive
2. Relevancy of the books, documents or things
does not appear
no longer applies. Any extension of time to file the
required pleading should therefore be counted from
the expiration of the period regardless of the fact
that said due date is a Saturday, Sunday or legal
holiday. (Reinier Pacific International Shipping, Inc.
v. Guevarra, G.R. No. 157020, June 13, 2013)

FORMS AND CONTENTS

A subpoena shall:
1. State the name of the court;
2. State the title of the action or investigation;
3. Be directed to the person whose attendance is L. MODES OF DISCOVERY
required; and
4. In the case of a subpoena duces tecum, it shall
also contain a reasonable description of the
books, documents or things demanded which
must appear to the court prima facie relevant.

SUBPOENA FOR DEPOSITIONS

Proof of service of a notice to take a deposition, as
provided in Sections 15 and 25 of Rule 23, shall 1. DEPOSITIONS PENDING ACTION;
constitute sufficient authorization for the issuance of DEPOSITIONS BEFORE ACTION OR
subpoenas for the persons named in said notice by PENDING APPEAL
the clerk of the court of the place in which the
deposition is to be taken.

The clerk shall not, however, issue a

subpoena duces tecum to any such person without
an order of the court.
a. Meaning of Deposition
PERSONAL APPEARANCE IN COURT b. Uses; Scope of Examination
A person present in court before a judicial officer c. When May Objections to Admissibility
may be required to testify as if he/she were in be made
attendance upon a subpoena issued by such court d. When May Taking of Deposition be
or officer. Terminated or Its Scope limited

END OF TOPIC

COMPUTATION OF TIME
(Rule 22) 2. WRITTEN INTERROGATORIES TO
ADVERSE PARTIES
Section 1, Rule 22 provides that when the last day
on which a pleading is due falls on a Saturday,
Sunday, or legal holiday, time shall not run until the
next working day. This rule speaks only of "the last
day of the period," so that when a party seeks an
extension and the same is granted, the due date
ceases to be the last day and hence, the provision

165
 a. Consequences of Refusal to Answer It is a testimony of a witness, taken in writing, under
b. Effect of Failure to Serve Written oath or affirmation, before some judicial officer in
Interrogatives answer to questions or interrogatories. (People v.
Webb G.R. No. 132577, 1999)

It is a way for either party to compel the other to

disgorge whatever facts he has in his possession.
(Republic v. Sandiganbayan G.R. No. 90478, 1991)

3. REQUEST FOR ADMISSION DEPOSITION DE BENNE ESSE

Deposition for use in a pending trial action. (Rule
23)

DEPOSITION IN PERPETUAM REI MEMORIAM

Deposition for use in future proceedings as in the
case where it is sought before the existence of an
a. Implied Admission by Adverse Party action or for cases on appeal. (Rule 24)
b. Consequences of Failure to Answer
Request for Admission NATURE OF DEPOSITIONS
c. Effect of Admission Who May Petition (DEPOSITION BEFORE
d. Effect of Failure to File and Serve ACTION)
Request for Admission 1. Any person who wants to perpetuate his/her
own testimony; or
2. Any person who wants to perpetuate the
testimony of another person.

A non-resident foreign corporation may request for

depositions, whether oral or written. (San Luis v.
4. PRODUCTION OR INSPECTION OF Rojas G.R. No. 159127, 2008)
DOCUMENTS OR THINGS In criminal cases, filing a Motion for Leave to Take
5. PHYSICAL AND MENTAL Deposition is a voluntary appearance and he
EXAMINATION OF PERSONS subjects himself to the jurisdiction of the court.
6. CONSEQUENCES OF REFUSAL TO (Disini v. Sandiganbayan, G.R. No. 175730, 2010)
COMPLY WITH MODES OF Before Whom Taken (DEPOSITIONS PENDING
DISCOVERY ACTION)
1. IF WITHIN the Philippines – deposition may be
1. DEPOSITIONS PENDING ACTION; taken before
DEPOSITIONS BEFORE ACTION OR
PENDING APPEAL

a. MEANING AND PURPOSE OF DEPOSITION

DEPOSITION
Taking of the testimony of any person, whether
he/she be a party or not, but at the instance of a
party to the action. This testimony is taken out of
court and it may either be an oral examination or a
written interrogatory.
a) Judge;
b) Notary public; or
c) Before any person authorized to administer
oaths if the parties so stipulate in writing.

166
2. IF OUTSIDE the Philippines – deposition may
be taken before
a) A secretary of an embassy or legation,
consul general, consul, vice-consul or
consular agent of the Republic of the
Philippines;
b) Such person or officer as may be appointed
by commission or letters rogatory;
c) A person authorized to administer oaths by
written stipulation of the parties.
When DEPOSITIONS PENDING ACTION Are
Taken
1. After jurisdiction has been obtained over the
defendant or property subject of the action and
BEFORE answer has been filed – WITH leave of
court;
2. After jurisdiction has been obtained and AFTER
an answer has been served – WITHOUT leave
of court;
3. DEPOSITION OF PRISONER – only with leave
of court and upon such terms as the court may
prescribe.
There is no rule that limits deposition-taking only to
the period of pre-trial or before it, neither against the
taking after pre-trial. (Jonathan Landoil International
Co., Inc. v. Mangudadatu G.R. No. 155010, 2004)

b. USES AND SCOPE OF EXAMINATION

A party shall NOT be deemed to make a person

Difference Between Letters Rogatory and his/her own witness for any purpose by taking
Commission his/her deposition (Rule 23, Section 7) EXCEPT
when the deposition is introduced in evidence, then
he/she will be deemed to have made the deponent
his/her witness (Rule 23, Section 8).
LETTERS COMMISSION
The exception will NOT apply if the deposition used
ROGATORY
is that of an opposing party or the deposition is
Request to a An instrument issued by used to impeach or contradict the deponent –
FOREIGN COURT to a court of justice or Deponent still NOT a witness of the party taking the
give its aid, backed by other competent deposition.
its power, to secure tribunal DIRECTED TO
desired information. A MAGISTRATE by his A deposition is not to be used when the deponent is
official designation OR at hand. (Sales v. Sabino G.R. No. 133154, 2005)
TO AN INDIVIDUAL
BY NAME, authorizing Any Part or All of the Deposition, So Far as
him to take the Admissible under the Rules of Evidence, May be
depositions of the Used
witness. 1. Against any party who was present or
represented at the taking of the deposition; or
Methods of procedure Taken in accordance 2. Against one who had due notice of the
are under the control with the rules laid deposition.
of the foreign tribunal. down by the court
issuing the The Deposition May be Used for the Following
commission. Purposes
1. For the purpose of contradicting or impeaching
the testimony of the deponent as witness by
any party;
2. If the deponent is a party or anyone who was
at the time of the deposition was an officer,
(Dulay v. Dulay, G.R. No. 158857, 2005)
director, or managing agent of a public or private

167
 corporation, partnership or association which is
a party, his/her deposition can be used by an
adverse party for any purpose.
3. If the deponent is a witness, whether or not a
party to the case, his/her deposition may be
used by any party for any purpose if the court
finds that:
a) The witness is dead; or
b) 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/her absence
was procured by the party offering the
deposition); or
c) The witness is unable to attend or testify
because of age, sickness, infirmity or
imprisonment; or
d) The party offering the deposition has been
unable to procure the attendance of the
witness by subpoena; or
e) Upon application and notice, that such
exceptional circumstances exist as to make it
desirable, in the interest of justice to allow
the deposition to be used.
Scope of Examination
May be any matter not privileged and which is
relevant to the subject of the pending action,
including:
1. Claim or defense of any other party;
2. Existence, description, nature, custody,
condition and location of any books, documents,
or other tangible things; and
3. Identity and location of persons having
knowledge of relevant facts.
In civil cases, a person may not use the right
against self-incrimination as an objection to make a
deposition. Only when an incriminating question is
asked can a person invoke the right. (Rosete v. Lim
G.R. No. 136051, June 8, 2006)
c. WHEN MAY OBJECTIONS TO
ADMISSIBILITY BE MADE
Objections may be made at the trial or hearing to
receive in evidence any deposition or part thereof.
Any reason that would require the exclusion of the
evidence if the witness were then present and
testifying may be used as a reason for objection.
All objections made at the time of the examination
to the qualifications of the officer taking the
deposition, manner of taking it, to evidence
presented, conduct of any party and any other
objection to the proceedings shall be NOTED by the
officer taking the deposition. He/she has NO
authority to rule on such objections. (Riano, Civil
Procedure: A Restatement for the Bar, 2nd ed. 2009)
d. WHEN THE TAKING OF DEPOSITION MAY
BE TERMINATED OR ITS SCOPE LIMITED
The Taking of Deposition may be terminated or
Its Scope Limited at ANY TIME DURING the
Taking of the Deposition
1. Upon motion or petition of any party or of the
deponent; and
2. Upon showing that the examination is being
conducted in bad faith or in such manner as
unreasonably to annoy, embarrass or oppress
the deponent or party.
2. WRITTEN INTERROGATORIES TO
ADVERSE PARTIES
WRITTEN INTERROGATORIES
Its purpose is to elicit material and relevant facts
from any adverse party.
Unless thereafter allowed by the court for good
cause shown and to prevent a failure of justice, a
party not served with written interrogatories may not
168
 Seeks the disclosure of Designed to seek for a
all material and more definite
relevant facts from a statement or for
be compelled by the adverse party to give testimony party particulars of any
in open court, or to give a deposition pending matter not averred with
appeal. (Sps. Afulugencia v. Metrobank, G.R. No. sufficient definiteness
185145, February 5, 2014) in a pleading

Since the calling party is deemed bound by the

adverse party’s testimony, compelling the adverse
party to take the witness stand may result in the
calling party damaging its own case. … Another
reason for the rule is that by requiring prior written
interrogatories, the court may limit the inquiry to
what is relevant, and thus prevent the calling party
from straying or harassing the adverse party when it
takes the latter to the stand. (Sps. Afulugencia v.
Metrobank, G.R. No. 185145, February 5, 2014

A Party Shall FILE AND SERVE Written

Interrogatories Written
Interrogatories to
1. After jurisdiction has been obtained over the Interrogatories in a
Parties
defendant or property subject of the action and Deposition
BEFORE answer has been filed – WITH leave of
court; or

2. After jurisdiction has been obtained and AFTER

an answer has been served – WITHOUT leave of
court
The interrogatories shall be ANSWERED FULLY in
writing and shall be signed and sworn to by the Directed to an Adverse Not served upon the
person making them. Such answer shall be filed Party adverse party directly;
and served to the party submitting the interrogatory delivered to the officer
within fifteen (15) days from service of such designated in the notice
interrogatories UNLESS the court on motion and for
good cause extends or shortens the time.

OBJECTIONS to the interrogatory may be

presented to the court within ten (10) days after
service thereof.

NO party may serve MORE THAN ONE set of
interrogatories to be answered by the same party
WITHOUT LEAVE OF COURT. (Riano, 2014, p.
520)
Difference between interrogatories to parties
and bill of particulars
The service of written interrogatories is a mode of
deposition separate and distinct from interrogatories
to parties. (Riano, 2014, p.520)
a. CONSEQUENCES OF REFUSAL TO
ANSWER WRITTEN INTERROGATORIES

Interrogatories to Bill of Particulars

Parties

Directed to an Adverse Directed to a Pleading

Party

169
The Court, ON MOTION and NOTICE May PRIOR to the filing of the sworn statement - Fifteen
1. Strike out all or any part of any pleading of that (15) days after service of request.
party; or Such objections will defer compliance until such
2. Dismiss the action or proceeding or any part have been resolved by the court.
thereof made if it was the PLAINTIFF who
refused to answer;
3. Enter judgment by default against the
defendant, if it was the DEFENDANT who
refused to answer;
4. Order that party who refused to answer to pay
reasonable expense incurred by the other party
and attorney’s fees (Section 5, Rule 29 of the a. IMPLIED ADMISSION BY ADVERSE
Rules of Court) PARTY
If a party refuses to answer the WHOLE written
interrogatory, Section 5, Rule 29 shall apply.
However, where a party refuses only to answer a
PARTICULAR question, Section 3 [c], Rule 19 shall
apply (the main difference being that in Section 3[c],
there is no provision on payment of reasonable
expenses/ penalty) There is an IMPLIED ADMISSION if the party to
whom the request is made does NOT file and serve
b. EFFECT OF FAILURE TO SERVE WRITTEN a sworn statement EITHER a) denying specifically
INTERROGATORIES the matters of which an admission is requested OR
General Rule: A party not served with written b) setting forth the reasons why he cannot either
interrogatories may NOT be compelled by the admit or deny those matters within fifteen (15)
adverse party to give testimony in open court, or to days after service thereof or with such further time
give a deposition pending appeal. as the court may allow on motion
Exception: When allowed by the court for good
cause and to prevent a failure of justice.

b. CONSEQUENCE OF FAILURE TO
ANSWER REQUEST FOR ADMISSION
3. REQUEST FOR ADMISSION

The matters of which admission is requested shall

be deemed admitted.
A Written Request for Admission Filed and
Served Upon Any Other Party May Include
1. Request for the admission of the genuineness of
any material and relevant document described in
and exhibited with the request;
2. Request for the admission of the truth of any
material and relevant matter of fact set forth in the
request. c. EFFECT OF ADMISSION
Objections to any request for admission shall be
submitted to the court WITHIN the period for and

170
Any admission made pursuant to such request is for
the purpose of the pending action only. The
admission may NOT be used against the party who
gave it in any other proceeding.
d. EFFECT OF FAILURE TO FILE AND
SERVE REQUEST FOR ADMISSION
The party who fails to request for admission of
material and relevant facts which are or ought to be
within the personal knowledge of such party shall
NOT be permitted to present evidence on such
facts UNLESS allowed by the court for good cause
shown and to prevent a failure of justice. (Riano,
page522, 2014)
Withdrawal of Admission
1.Admissions made in this mode of discovery,
whether express or implied, are NOT final and
irrevocable.
2.The court may allow the party making the
admission to withdraw or amend the
admission upon such terms as may be just.
3.To effect the withdrawal, the admitting party
should file a motion to be relieved of the
effects of his admission. (Riano, page 523,
2014)
That the Comment was not under oath is not a
substantive, but merely a formal, defect which can
be excused in the interest of justice conformably to
the well-entrenched doctrine that all pleadings
should be liberally construed as to do substantial
justice. The filing of such Comment substantially
complied with Rule 26. Consequently, the DBP
cannot be deemed to have impliedly admitted the
matters set forth in the Request for Admission for
the mere reason that its Comment was not under
oath. (DBP v CA, GR No. 153034, 2005)
A party should not be compelled to admit matters of
fact already admitted by his pleading and
concerning which there is no issue, nor should he
be required to make a second denial of those
already denied in his answer to the complaint. [xxx]
A request for admission is not intended to merely
reproduce or reiterate the allegations of the
requesting party's pleading but should set forth
relevant evidentiary matters of fact, or documents
described in and exhibited with the request, whose
purpose is to establish said party's cause of action
ordefense.
[xxx] Unless it serves that purpose, it is, as correctly
observed by the Court of Appeals, "pointless,
useless," and "a mere redundancy.” (Po v CA, GR
No. L-34341, 1988)
4. PRODUCTION AND INSPECTION
OF DOCUMENTS OR THINGS
171
UPON MOTION, a party may seek the production of
documents, papers, books, accounts, letters,
photographs, objects or tangible things OR to order
any party to permit entry upon designated land or
other property in his possession or control.
Purpose
1. To allow a party to seek an order from the court
in which the action is pending to:
(a) Order any party to produce and permit the
inspection and copying or photographing... of
any designated document... NOT privileged,
which constitute or contain evidence material to
any matter
(b) Order any party to permit entry upon
designated land or other property in his
possession or control
2. This mode of discovery is not only for the
benefit of a party, but also for the court and for
it to discover all relevant and material facts in
connection with the case before it. (Riano,
2014, p. 524)
The scope of discovery under this mode is to be
liberally construed so as to provide the litigants with
information essential to the fair and amicable
settlement or expeditious trial of the case. While the
grant of a motion for the production of a document
is admittedly discretionary on the part of the trial
court judge, nevertheless, it cannot be arbitrarily or
unreasonably denied because to do so would bar
access to relevant evidence that may be used by a
party-litigant. The test to be applied by the trial
judge in determining the relevancy of the
documents is one of reasonableness and
practicability. (Eagleridge Development Corporation
v Cameron Granville 3 Asset Management Inc., GR
No. 204700, 2013)
This remedial measure is intended to assist in the
administration of justice by facilitating and
expediting the preparation of cases for trial and
guarding against undesirable surprise and delay;
and it is designed to simplify procedure and obtain
admissions of facts and evidence, thereby
shortening costly and time-consuming trials. It is
based on ancient principles of equity.
More specifically, the purpose of the statute is to
enable a party-litigant to discover material
information which, by reason of an opponent's
control, would otherwise be unavailable for judicial
scrutiny, and to provide a convenient and summary
method of obtaining material and competent
documentary evidence in the custody or under the
control of an adversary.
It is a further extension of the concept of pretrial.
Rule 27 of the Revised Rules of Court permits
"fishing" for evidence, the only limitation being that
the documents, papers, etc., sought to be produced
are not privileged, that they are in the possession of
the party ordered to produce them and that they are
material to any matter involved in the action.
However, Fishing for evidence that is allowed under
the rules is not without limitations. In Security Bank
Corporation v. Court of Appeals, the Court
enumerated the requisites in order that a party may
compel the other party to produce or allow the
inspection of documents or things, viz.:
(a) The party must file a motion for the production
or inspection of documents or things, showing
good cause therefor;
(b) Notice of the motion must be served to all other
parties of the case;
(c) The motion must designate the documents,
papers, books, accounts, letters, photographs,
objects or tangible things which the party
wishes to be produced and inspected;
(d) Such documents, etc., are not privileged;
(e) Such documents, etc., constitute or contain
evidence material to any matter involved in the
action, and
(f) Such documents, etc., are in the possession,
custody or control of the other party.
However, Solidbank’s motion was fatally defective
and must be struck down because of its failure to
specify with particularity the documents it required
Gateway to produce. Solidbank’s motion for
production and inspection of documents called for a
blanket inspection. Solidbank’s request for
inspection of "all documents pertaining to, arising
from, in connection with or involving the Back-end
172
Services Agreement” was simply too broad and too 4. Communication between Priest and Penitent
generalized in scope. 5. Communication of Public Officers involving
public interest

A motion for production and inspection of

documents should not demand a roving inspection
of a promiscuous mass of documents. The
inspection should be limited to those documents
designated with sufficient particularity in the motion,
such that the adverse party can easily identify the
documents he is required to produce. (Solidbank
Corporation v Gateway Electronics Corporation, GR
No. 164805, April 30, 2008)
Others not mentioned by Rule 130:
1. Editors may not be compelled to disclose the
source of published news
2. Voters may not be compelled to disclose for
whom they voted
3. Trade secrets
4. Information contained in tax census returns
5. Bank Deposits (Riano, page 525-526, 2014)

Filing of a Motion; Order of the Court

1. The motion must be filed by the party seeking
the production or inspection of documents and
things, and the motion must show good cause
supporting the same.
2. The order shall specify the time, place and
manner of making the inspection and taking
copies and photographs, and may prescribe
such terms and conditions as are just.

This is essentially a mode of discovery limited to the

parties to the action. This is to be differentiated from
a subpoena duces tecum which is a means to
compel the production of evidence which may be
directed to a person who may or may not be a party
to the action. (Riano, 2014, p.525)
Documents to be Produced
1. It should NOT be privileged;
2. It should constitute or contain evidence material
to any matter involved in the action; and
3. It must be within the party’s possession, custody
or control.
Privileged Documents under Rule 130, Sec. 24
1. Communication between Husband and Wife
2. Communication between Attorney and Client
3. Communication between Physician and Patient
5. PHYSICAL AND MENTAL
EXAMINATION OF PERSONS
When the mental or physical condition of a party is
in controversy, the court, UPON MOTION FOR
GOOD CAUSE SHOWN, may order the party to
submit to a physical or mental examination by a
physician.
The party examined MAY request the party causing
the examination to be made to deliver to him a copy
of a detailed report of the examining physician.
Waiver of Privilege

173
By requesting and obtaining a report of the
examination OR by taking the deposition of the
examiner, the party examined WAIVES any
privilege he may have in that action or any other
involving the same controversy regarding the
testimony of every other person who has examined
or may thereafter examine him.
6. CONSEQUENCES OF REFUSAL TO
COMPLY WITH THE MODES OF
DISCOVERY
For Party or Deponent who Appears But
REFUSES TO ANSWER Any Question Upon Oral
Examination Or Interrogatory:
1. The proponent may apply for a court order to
compel an answer:
a) If the motion is GRANTED– the court shall
require the refusing party to answer. If the
refusal to answer was without
SUBSTANTIAL JUSTIFICATION, it may
require the refusing party or deponent or the
counsel advising the refusal, or both of them,
to pay the proponent the amount of the
reasonable expenses incurred in obtaining
the order, including attorney's fees.
b) If the motion is DENIED - and the court finds
that it was filed WITHOUT SUBSTANTIAL
JUSTIFICATION, the court may require the
proponent or the counsel advising the filing
of the application, or both of them, to pay to
the refusing party or deponent the amount of
the reasonable expenses incurred in
opposing the application, including attorney's
fees
2. If despite the court order, the party or deponent
still refuses to answer, the refusal may be
considered contempt of that court or the court
may make such order as are just under Section
3, Rule 29 of the Rules of Court.
If the Adverse Party Makes a Wrongful Denial of
the Genuineness of Documents or Truth of Any
Matter of Fact
The other party who proves the genuineness may
apply to the court for an order requiring the other
party to pay him reasonable expenses incurred in
making such proof, including attorney’s fees.
If a Party Refuses an Order To produce any
document or Other Thing Under Rule 27 OR If a
Person Refuses to Submit to a Physical or
Mental Examination Under Rule 28 OR If a
Person Refuses to Answer Particular Questions
Under Rule 25:
The court may make such orders in regard to the
refusal as are just, and among others, also issue
the following-
1. An order that the matters regarding which the
questions were asked shall be TAKEN TO BE
ESTABLISHED for the purposes of the action in
accordance with the claim of the party obtaining
the order.
2. An order
a) Prohibiting the disobedient party to support
or oppose claims or defenses, or
b) Prohibiting such disobedient party from
introducing in evidence designated
documents or things or items of testimony.
3. An order
a) Striking out pleadings or parts thereof, or
b) Staying further proceedings until the order is
obeyed, or
c) Dismissing the action or proceeding or any
part thereof, or
174
 d) Rendering a judgment by default against the
disobedient party.
4. In addition to any of the above orders, an order
directing the arrest of any party or agent of a
party for disobeying any of such orders.
For Failure to Appear to Serve Answer to
Written Interrogatories the Court, on Motion,
May:
1. Strike out all or any part of any pleading by that
party;
2. Dismiss the action or proceeding or any part
thereof; or enter a judgment by default against
that party;
3. At the court’s discretion, order the party to pay
reasonable expenses incurred by the other,
including attorney’s fees.
Contempt of court
If a party or other witness refuses to be sworn or
refuses to answer any question after being directed
to do so by the court of the place in which the
deposition is being taken, the refusal may be
considered contempt of that court.
Other consequences
If party refuses to obey:
1. An order made under section 1 of this Rule
requiring him to answer designated
questions, or
2. An order under Rule 27 to produce any
document or other thing for inspection,
copying, or photographing or to permit it to
be done, or to permit entry upon land or
other property or an order made under
Rule 28 requiring him to submit to a
physical or mental examination,
The court may make such orders in regard to the
refusal as are just, and among others the following:
a. An order that the matters regarding which
the questions were asked, or the character
or description of the thing or land, or the
contents of the paper, or the physical or
mental condition of the party, or any other
designated facts shall be taken to be
established for the purposes of the action
in accordance with the claim of the party
obtaining the order;
b. An order refusing to allow the
disobedient party to support or oppose
designated claims or defenses or
prohibiting him from introducing in
evidence designated documents or things
or items of testimony, or from introducing
evidence of physical or mental condition;
c. An order striking out pleadings or parts
thereof, or staying further proceedings
until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or
rendering a judgment by default against the
disobedient party; and
d. In lieu of any of the foregoing orders or in
addition thereto, an order directing the
arrest of any party or agent of a party for
disobeying any of such orders except an
order to submit to a physical or mental
examination.
Expenses on refusal to admit
If a party after being served with a request under
Rule 26 to admit the genuineness of any document
or the truth of any matter of fact serves a sworn
denial thereof and if the party requesting the
admissions thereafter proves the genuineness of
such document or the truth of any such matter of
175
fact, he may apply to the court for an order requiring
the other party to pay him/her the reasonable M. TRIAL
expenses incurred in making such proof, including (Rule 30)
attorney's fees.
Unless the court finds that there were good
reasons for the denial or that admissions sought
were of no substantial importance, such order shall
be issued.

For FAILURE TO APPEAR TO SERVE ANSWER

to Written Interrogatories the Court, on Motion,
May:
1. Strike out all or any part of any pleading by that
party;
2. Dismiss the action or proceeding or any part
thereof; or enter a judgment by default against
that party;
3. At the court’s discretion, order the party to pay 1. ADJOURNMENTS AND
reasonable expenses incurred by the other,
including attorney’s fees. POSTPONEMENTS
2. REQUISITES OF MOTION TO
Expenses against the Republic of the POSTPONE TRIAL
Philippines
Expenses and attorney's fees are not to be imposed
upon the Republic of the Philippines under this
Rule.

In Zepeda v. Chinabank, G.R. No. 172175, 2006,

the Supreme Court ruled that the consequences a. For absence of evidence
enumerated in Section 3(c) of Rule 29 would only b. For illness of party or counsel
apply where the party upon whom the written
interrogatories is served, refuses to answer a
particular question in the set of written
interrogatories and despite an order compelling him
to answer the particular question, still refuses to
obey the order. If such party refuses to answer the
whole set of written interrogatories and not just a 3. AGREED STATEMENT OF FACTS
particular question, the opposing party should have
4. ORDER OF TRIAL; REVERSAL OF
filed a motion based on Section 5 and not Section
3(c) of Rule 29. ORDER
5. CONSOLIDATION OR SEVERANCE
OF HEARING OR TRIAL
6. DELEGATION OF RECEPTION OF
EVIDENCE
7. TRIAL BY COMMISSIONERS

END OF TOPIC

a. Reference by consent or ordered on

motion

176
 b. Powers of Commissioner
c. Commissioner’s Report; Notice to
Parties and Hearing on the Report
TRIAL
Trial is the judicial process of investigating and
determining the legal controversies, starting with the
production of evidence by the plaintiff and ending
with his closing arguments.
HEARING
Hearing is a broader term. It is not only confined to
the trial and presentation of evidence but it also
includes pre-trial, determination of granting or
denying a motion and several stages of litigation.
When Trial is Unnecessary
1. Judgment on the Pleadings
2. Summary Judgment
3. Judgment on Compromise
4. Dismissal of Complaint WITH Prejudice
5. Summary Procedure Cases
6. Judgment on Facts Stipulated/Agreed Upon
1. ADJOUNMENTS AND
POSTPONEMENTS
A court may adjourn a trial from day to day and to
postpone it to any stated time
General Rule: A court does not have power to
adjourn trial for a longer period than one (1) month
for each adjournment and not for more than three
(3) months total for all adjournments
Exception: When authorized in writing by the Court
Administrator, Supreme Court.
2. REQUISITES OF MOTION TO
POSTPONE TRIAL
Postponement is NOT a matter of right. It is
addressed to the sound discretion of the court.
a. MOTION TO POSTPONE TRIAL FOR
ABSENCE OF EVIDENCE
Requisites:
1. Affidavit showing the materiality or relevancy for
such evidence; and
2. Due diligence has been used to procure
evidence.
If the adverse party admits the facts in evidence,
trial shall not be postponed even if such adverse
party objects or reserves the right to object to the
admissibility of the evidence
b. MOTION TO POSTPONE TRIAL ON THE
GROUND OF ILLNESS OF A PARTY OR
COUNSEL
Requisites
1. Affidavit or sworn certification showing that the
presence of such party or counsel at the trial is
indispensable; and
2. The character of the illness is such as to render
the non-attendance excusable.
3. AGREED STATEMENT OF FACTS
[STIPULATION OF FACTS]
Parties to ANY action may agree upon the facts
involved in the litigation
Such agreement must be in WRITING and upon
facts involved in the litigation. The case will then be
submitted for judgment on the facts agreed upon
WITHOUT need for introduction of evidence.
If the parties agree only on some of the facts, trial
shall be held as to the disputed facts
In CIVIL cases, such agreement MAY be made
orally, in open court. However, in CRIMINAL
CASES, such agreement must always be in writing.
4. ORDER OF TRIAL; REVERSAL OF
ORDER
177
Order of Trial
The trial shall be LIMITED to the issues stated in
the PRE-TRIAL ORDER and shall proceed as
follows:
1. Plaintiff shall adduce evidence is support of
his complaint;
2. Defendant shall then adduce evidence in
support of his defense, counterclaim, cross-
claim or third-party complaint;
3. Third (3rd) party defendant shall adduce
evidence in support of his defense,
counterclaim, cross-claim, fourth-party
complaint;
4. Fourth (4th) party and so on shall adduce
evidence of the material facts pleaded by him;
5. The parties against whom any counterclaim
or cross-claim has been pleaded, shall
adduce evidence in support of their defense, in
the order prescribed by the court;
6. Parties may then adduce rebutting evidence
only, unless the court permits them to adduce
evidence upon their original case;
7. Oral argument or submission of memoranda;
8. Case deemed submitted for decision.
Reversal or Modification of Order
If the defendant relies upon an affirmative defense
in his answer, then the order of the trial may be
properly reversed. This is because the plaintiffs
need not present evidence as judicial admissions
do not require proof.
Defendant in this case will present evidence ahead
of plaintiff.
5. CONSOLIDATION OR SEVERANCE
OF HEARING OR TRIAL
Consolidation is Proper When
1. There are actions involving a common question
of law or fact; and
2. The actions are pending before the same court.
Court May Order Actions to be Consolidated By
1. A joint hearing or trial of any and all matters or
issue in the action; or
2. Consolidation of all actions; or
3. Such order concerning proceedings therein as
may tend to avoid unnecessary costs or delay.
Civil cases MAY now be consolidated with criminal
cases. (Rule 111, Section 2[a])
Consolidation is a matter of discretion with the
court. Consolidation becomes a matter of right
only when the cases sought to be consolidated
involve similar questions of fact and law,
provided certain requirements are met. An
essential requisite of consolidation is that the
court must have jurisdiction over all the cases
consolidated before it. In this case, since the
Sandiganbayan does not have jurisdiction over
the collection case, the same cannot be
consolidated with the criminal cases even if
these cases involve similar questions of fact
and law. (Republic v. Court of Appeals (G.R.
No. 116463, June 10, 2013)
Under the Rules of Court, the consolidation of
cases for trial is permissive and a matter of
judicial discretion. This is because trials held in
the first instance require the attendance of the
parties, their respective counsel and their
witnesses, a task that surely entails an expense
that can multiply if there are several proceedings
upon the same issues involving the same
parties. At the trial stage, the avoidance of
unnecessary expenses and undue vexation to
the parties is the primary objective of
consolidation of cases. 
But the permissiveness of consolidation does
not carry over to the appellate stage where the
primary objective is less the avoidance of
unnecessary expenses and undue vexation than
it is the ideal realization of the dual function of all
appellate adjudications.
178
In the appellate stage the rigid policy is to make
the consolidation of all cases and proceedings
resting on the same set of facts, or involving
identical claims or interests or parties mandatory.
Such consolidation should be made regardless of
whether or not the parties or any of them
requests it. (In re: Fabiana (A.M. No. CA-12-51-
J, July 2, 2013)
Severance, When Proper
The court, in furtherance of convenience or to avoid
prejudice, may order a separate trial of any claim,
cross-claim, counterclaim, or third-party complaint,
or of any separate issue or of any number of claims,
cross-claims, counterclaims, third-party complaints
or issues
6. DELEGATION OF RECEPTION OF
EVIDENCE
General Rule: The JUDGE of the court where the
case is pending shall personally receive the
evidence to be adduced by the parties.
Exception: The court may delegate the reception of
evidence to its CLERK OF COURT (who is a
member of the bar) in:
1. Default or Ex Parte hearings;
2. Any case where the parties so agree in writing.
The CLERK OF COURT has the duty to submit his
report, objections, and transcripts of the
proceedings within ten (10) days from the
termination of hearing.
The CLERK OF COURT shall have NO power to
rule on objections to any question or to the
admission of exhibits. Such power shall remain with
the JUDGE who shall resolve such objection within
ten (10) days from the termination of
hearing.
7. TRIAL BY COMMISSIONERS
a. REFERENCE BY CONSENT OR ORDERED
ON MOTION
Court may order the trial of any or all of the issues
in a case to be referred to a COMMISSIONER.
COMMISIONER – a person to whom a case
pending in court is referred, for him to take
testimony, hear the parties and report thereon to the
court, and upon whose report, if confirmed,
judgment is rendered. It includes a referee, an
auditor or an examiner.
The Commissioner is either:
1. Agreed upon by written consent of both
parties;
2. Appointed by the Court (e.g. Expropriation,
Partition, Settlement of Estate of a Deceased
Person).
The Court May Direct Reference to a
Commissioner Either
1. Upon motion of either party, or
2. Upon the court’s own motion, when the parties
do not consent.
Reference to a Commissioner May be Made In
the Following Cases
1. When the trial of an issue of fact requires the
examination of a long account on either side
2. When the taking of an account is necessary
for the information of the court before judgment;
3. Carrying a judgment or order into effect;
4. When a question of fact, other than upon the
pleadings, arises upon motion or otherwise, in
any stage of the case.
b. POWERS OF THE COMMISSIONER
The Commissioner has the Power to:
1. Regulate the proceedings before him,
179
2. Issue subpoena and subpoena duces tecum,
3. Swear in witnesses,
4. Rule on the admissibility of evidence,
5. Do all acts and take all measures necessary or
proper, for the efficient performance of his
duties.

The powers of the commissioner are subject to the

restrictions contained in the court Order of
Reference appointing him as Commissioner.
N. DEMURRER TO EVIDENCE
c. COMMISSIONER’S REPORT; NOTICE TO (Rule 33)
PARTIES AND HEARING ON THE REPORT

Commissioner’s Report
Upon completion of trial or hearing or proceeding
before the Commissioner, the Commissioner shall
file a report in writing showing the matters
submitted to him in the Order of Reference.

He shall set forth in his report findings of fact and 1. GROUND

conclusions of law. He shall also attach all exhibits 2. EFFECT OF DENIAL
affidavits, depositions, papers and the transcript of 3. EFFECT OF GRANT
testimonial evidence presented before him.
4. WAIVER OF RIGHT TO PRESENT
Notice to Parties EVIDENCE
Upon filing of the Commissioner’s Report, the Clerk 5. DEMURRER TO EVIDENCE IN CIVIL
of Court shall notify the parties. CASE VERSUS DEMURRER TO
Parties are allowed ten (10) days from such notice
EVIDENCE IN A CRIMINAL CASE
to signify grounds for objections to the findings.

Objections to the report based upon grounds which

were available to the parties during the proceedings
before the commissioner, other than objections to
the findings and conclusions therein set forth, shall
not be considered by the court UNLESS they were
made before the commissioner.

Hearing on the Report

After the expiration of the ten (10) day period after
notice to file an objection, a hearing shall be set on
the report.
1. GROUND
After hearing the court shall issue an order
adopting, modifying or rejecting the Commissioner’s DEMURRER TO EVIDENCE
Report. After the plaintiff has completed the presentation of
his evidence, the defendant may move for dismissal
When the parties stipulate that a commissioner's on the ground that upon the facts and the law, the
findings of fact shall be final, only questions of law plaintiff has shown NO RIGHT TO RELIEF.
shall thereafter be considered.
Note: The evidence contemplated by the rule on
demurrer is that which pertains to the merits of the
END OF TOPIC

180
 Should be filed within May be filed only after
the time for, but prior the plaintiff has
to the filing of an completed the
case, excluding technical aspects such as capacity answer, of the presentation of his
to sue. [Celino v. Heirs of Alejo and Teresa defending party to the evidence.
Santiago G.R. No. 161817, July 30, 2004] pleading asserting the
claim against him
Demurrer to evidence authorizes a judgment on
the merits of the case without the defendant
having to submit evidence on his part as he
would ordinarily have to do, if it is shown by
IF DENIED - IF DENIED - defendant
plaintiff’s evidence that the latter is not entitled
defendant must file an may present evidence
to the relief sought. A demurrer to evidence is
answer, else be
likewise sustainable when, admitting every proven
declared in default IF GRANTED - plaintiff
fact favorable to the plaintiff and indulging in his
appeals and the order
favor all conclusions fairly and reasonably inferable
IF GRANTED - of dismissal is reversed,
therefrom, the plaintiff has failed to make out one or
plaintiff may appeal or the defendant loses his
more of the material elements of his case, or when
re-file case (if right to present
there is no evidence to support an allegation
subsequent case is evidence.
necessary to his claim. It should be sustained
not barred)
where the plaintiff’s evidence is prima facie
insufficient for a recovery. [Heirs of Santioque v.
Heirs of Calma G.R. No. 160832, Oct. 27, 2006]

What should be resolved in a motion to dismiss

based on a demurrer to evidence is whether the
plaintiff is entitled to the relief based on the facts
and the law. The “facts” referred to here include
judicial admissions, matters of judicial notice, 2. EFFECT OF DENIAL
stipulations made during the pre-trial and trial,
admissions, and presumptions, the only exclusion Defendant CAN present his evidence as a matter of
being the defendant’s evidence. (Casent Realty right EVEN IF he did NOT obtain leave of court or
v. Philbanking G.R. No. 150731, 2007) reserve his right to do so.

MOTION TO MOTION TO DISMISS

DISMISS UNDER UNDER RULE 33
RULE 16 (DEMURRER TO
EVIDENCE)
EFFECT OF EFFECT OF DENIAL IN
DENIAL IN CIVIL CRIMINAL CASE
Grounded on Based on insufficiency CASE
preliminary objections of evidence (No right of
relief based on the facts
and law presented)

Maybe filed by Maybe filed only by the

defending party defendant against the
against whom a claim complaint of the plaintiff The defendant will If demurrer was
is asserted in the present his with express leave of
action evidence court, accused may
present evidence.

181
 If demurrer was without
express leave of court,
accused can NO longer
present evidence and the 4. WAIVER OF RIGHT TO PRESENT
case is submitted for EVIDENCE
decision based on
prosecution’s evidence.
If on appeal, the order granting the motion for
demurrer is REVERSED, the defendant LOSES his
right to present evidence.

Judgment shall be rendered on the basis of the

evidence submitted by the PLAINTIFF.

NOTE: The appellate court reversing the order

An order denying a demurrer to the evidence is granting the demurrer MUST NOT REMAND the
INTERLOCUTORY and is therefore NOT case to the trial court for further proceedings. The
appealable. It can be the subject of a Petition for appellate court should render judgment on the basis
Certiorari in case of grave abuse of discretion or an of the evidence submitted by the plaintiff.
oppressive exercise of judicial authority. (Katigbak (Radiowealth Finance Corporation v. Del Rosario,
v. Sandiganbayan, G.R. No. 140183, 2003) 335 SCRA 228, 2000)

3. EFFECT OF GRANT 5. DEMURRER TO EVIDENCE IN

CIVIL CASES VERSUS DEMURRER
Court will render judgment on demurrer to evidence TO EVIDENCE IN A CRIMINAL
by DISMISSING the case. This order is CASE
APPEALABLE.

CIVIL CASE CRIMINAL CASE

NO need for leave of Leave of court is
court for defendant to NECESSARY so that
file demurrer to the accused could
EFFECT OF GRANT EFFECT OF GRANT IN
evidence present his evidence if
IN CIVIL CASE CRIMINAL CASE
his demurrer is denied

If court finds plaintiff’s If court finds

evidence insufficient, prosecution’s evidence
demurrer will be insufficient, demurrer
granted and will be granted and
The complaint will be The accused will be complaint will be judgment will be
dismissed acquitted. Judgment of dismissed. This rendered acquitting the
acquittal is NOT dismissal is accused. The judgment
appealable appealable. is not appealable.

182
If plaintiff appeals and Judgment is NOT
the judgment is appealable by reason of
reversed, the the double jeopardy
appellate court will rule.
decide the case on END OF TOPIC
the basis of plaintiff’s
evidence and the
defendant loses his
right to present
evidence.

If court denies If court denies

demurrer, defendant demurrer, either of the
will present his following will happen:
evidence O. JUDGMENTS AND FINAL
1. If demurrer was
WITH express leave of
ORDERS
court, accused may (Rule 34)
present evidence;

2. If demurrer was
WITHOUT leave of
court, accused can no
longer present evidence
and the case is
submitted for decision
based on prosecution’s
evidence.

1. JUDGMENT WITHOUT TRIAL

2. CONTENTS OF A JUDGMENT
The court cannot, on The court may make a 3. JUDGMENT ON THE PLEADINGS
its own make a demurrer on its own. 4. SUMMARY JUDGMENTS
demurrer. (Rule 119, Section 23)

Similarities of Both Demurrer in a Civil case and a. For the claimant

a Criminal Case b. For the defendant
Both are based on insufficiency of evidence c. When the case not fully adjudicated
presented by the plaintiff or the prosecution to d. Affidavits and attachments
warrant the grant of affirmative relief in favor of the
plaintiff nor conviction of accused;

In both, the motion is filed after the plaintiff or the

prosecution has presented evidence and closed his
or its case.
5. JUDGMENT ON THE PLEADINGS
VERSUS SUMMARY JUDGMENTS

183
6. RENDITION OF JUDGMENTS AND
FINAL ORDERS
7. ENTRY OF JUDGMENTS AND
FINAL ORDER
JUDGMENT
A judicial act which settles the issues, fixes the
rights and liabilities of the parties, and determines
the proceeding, and is regarded as the sentence of
the law pronounced by the court on the action or
question before it.
Requisites:
1. In writing in the official language;
2. Personally and directly prepared by the judge;
3. State clearly and distinctly the facts and the law
on which it is based;
4. Contains a dispositive portion;
5. Signed by the judge; and
6. Filed with the clerk of court.
1. JUDGMENT WITHOUT TRIAL
JUDGMENT WITHOUT TRIAL
A decision rendered in a full-blown trial. Examples
include judgment by confession and judgment upon
a compromise.
2. CONTENTS OF A JUDGMENT
Parts of a Judgment
1. Opinion of the court (findings of fact and
conclusions of law) – Ratio Decidendi;
2. Disposition of the case (dispositive portion) -
Fallo;
3. Signature of the judge.
When there is a conflict between the dispositive
portion and the body of the decision, the FALLO
controls.
A Judgment of CONVICTION Must Contain
1. The legal qualifications of the offense
constituted by the acts committed by the
accused and the aggravating and mitigating
circumstances which attended its commission.
2. Participation of the accused either as principal,
accomplice or accessory.
3. Penalty imposed on the accused.
4. Civil liability or damages, if any, unless a
separate civil action has been reserved or
waived.
A Judgment of ACQUITTAL Must Contain
1. Whether the evidence absolutely failed to prove
the guilt of the accused or merely failed to prove
it beyond reasonable doubt
2. If the act or omission from which civil liability
may arise did not exist
3. JUDGMENT ON THE PLEADINGS
A judgment rendered by the court upon motion of
the claimant OR plaintiff on the ground that an
ANSWER fails to tender an issue, OR otherwise
admits the material allegations of the adverse
party’s pleading.
Note: The concept of a judgment on the pleadings
will not apply when no answer is filed. (Riano, Civil
Procedure: The Bar Lecture Series, Vol. 1, Bantam
Ed, 2014)
General Rule: A judgment on the pleadings must
be UPON MOTION of the claimant.
Exception: If at pre-trial, the court finds that a
judgment on the pleadings is proper, it MAY render
such judgment motu proprio. (Rule 18, Section 2
[g])
Judgment on the pleadings is proper when an
answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party’s
pleading. An answer fails to tender an issue if it
does not comply with the requirements of a specific
denial as set out in Sections 8 (actionable
document denial under oath) and 10 (specific
denial). Failure to deny such would result in the
admission of the material allegations of the adverse
party’s pleadings. [Asian Construction v.
Sanneadle, G.R. No. 181676, June 11, 2014]
Sham denials, consisting of an avowed lack of
knowledge of facts which could not but be clearly
known by them, in effect tender no issue, or
otherwise admit the allegations of the complaint
material to a valid decision. [Manufacturer’s Bank v.
Diversified, G.R. No. 33695, May 15, 1989]
Judgment on the pleadings is proper when an
answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party’s
pleadings. The defense of the defendant was that
plaintiff was in bad faith. The courts ruled that the
184
answer in fact tendered an issue hence judgment
on the pleadings would be inapplicable. Summary
judgment also cannot apply because the
requirement for such is that there must not be a
genuine issue. The plaintiff, in this case, prayed for
an accounting which required a full blown trial
(requires presentation of evidence on partial
payment) hence there was a genuine issue in the
case at bar. [Sps. Ong v. Roban Lending, G.R. No.
172592, July 9, 2008]
Judgment on the pleading is a judgment on the
facts pleaded, and based exclusively upon the
allegations appearing in the pleadings and the
annexes. The trial court has the discretion to grant a
motion for judgment on the pleadings filed by a
party if there is no controverted matter in the case
after the answer is filed. This case was peculiar
because the defendant was the one who moved for
judgment on pleadings without offering proof as to
the truth of her allegations and without giving the
plaintiff opportunity to introduce evidence, the
defendant is deemed to have admitted the material
and relevant matters of the complaint. (Usually, it is
the plaintiff who files a judgment on pleadings)
[Sunbanun v. Go, G.R. No. 163280, Feb. 2, 2010]
Judgment on the pleadings is appropriate when an
answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party’s
pleading. An answer fails to tender an issue if it
does not comply with the requirements of a specific
denial as set out in Sections 8 and 10, Rule 8 of the
Rules, resulting in the admission of the material
allegations of the adverse party’s pleadings. As
such, it is a form of judgment that is exclusively
based on the submitted pleadings without the
introduction of evidence as the factual issues
remain uncontroverted. [GSIS v. Prudential, G.R.
No. 165585, Nov. 20, 2013]
Judgment on the pleadings is proper when an
answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party’s
pleading. An answer fails to tender an issue if it
does not comply with the requirements of a specific
denial as set out in Sections 8 (actionable
document denial under oath) and 10 (specific
denial). Failure to deny such would result in the
admission of the material allegations of the adverse
party’s pleadings. [Asian Construction v.
Sanneadle, G.R. No. 181676, June 11, 2014]
Sham denials, consisting of an avowed lack of
knowledge of facts which could not but be clearly
known by them, in effect tender no issue, or
otherwise admit the allegations of the complaint
material to a valid decision. [Manufacturer’s Bank v.
Diversified, G.R. No. 33695, May 15, 1989]
Judgment on the pleadings is proper when an
answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party’s
pleadings. The defense of the defendant was that
plaintiff was in bad faith. The courts ruled that the
answer in fact tendered an issue hence judgment
on the pleadings would be inapplicable. Summary
judgment also cannot apply because the
requirement for such is that there must not be a
genuine issue. The plaintiff, in this case, prayed for
an accounting which required a full blown trial
(requires presentation of evidence on partial
payment) hence there was a genuine issue in the
case at bar. [Sps. Ong v. Roban Lending, G.R. No.
172592, July 9, 2008]
Judgment on the pleading is a judgment on the
facts pleaded, and based exclusively upon the
allegations appearing in the pleadings and the
annexes. The trial court has the discretion to grant a
motion for judgment on the pleadings filed by a
party if there is no controverted matter in the case
after the answer is filed. This case was peculiar
because the defendant was the one who moved for
judgment on pleadings without offering proof as to
the truth of her allegations and without giving the
plaintiff opportunity to introduce evidence, the
defendant is deemed to have admitted the material
and relevant matters of the complaint. (Usually, it is
the plaintiff who files a judgment on pleadings)
[Sunbanun v. Go, G.R. No. 163280, Feb. 2, 2010]
One who prays for judgment on the pleadings
without offering proof as to the truth of his own
allegations and without giving the opposing party an
opportunity to introduce evidence, must be
understood to admit all material and relevant
allegations of the opposing party and to rest his
motion for judgment on those allegations taken
together with such of his own as are admitted in the
pleadings. [Falcasantos v. How Suy Ching, GR No.
L-4229, May 29, 1952]
A Motion for Judgment on the Pleadings is one that
is considered ex parte because upon particular
facts thus presented, the plaintiff is entitled to
judgment, or motu proprio under Section 2 [g] of
Rule 18 of the Rules of Court. [Dino v. Valencia,
G.R. No. L-43886, July 19, 1989]
Judgment on the pleadings is appropriate when an
answer fails to tender an issue, or otherwise admits
185
the material allegations of the adverse party’s
pleading. An answer fails to tender an issue if it
does not comply with the requirements of a specific
denial as set out in Sections 8 and 10, Rule 8 of the
Rules, resulting in the admission of the material
allegations of the adverse party’s pleadings. As
such, it is a form of judgment that is exclusively
based on the submitted pleadings without the
introduction of evidence as the factual issues
remain uncontroverted. [GSIS v. Prudential, G.R.
No. 165585, Nov. 20, 2013]
Judgment on the pleadings is proper when an
answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party’s
pleading. An answer fails to tender an issue if it
does not comply with the requirements of a specific
denial as set out in Sections 8 (actionable
document denial under oath) and 10 (specific
denial). Failure to deny such would result in the
admission of the material allegations of the adverse
party’s pleadings. [Asian Construction v.
Sanneadle, G.R. No. 181676, June 11, 2014]
Sham denials, consisting of an avowed lack of
knowledge of facts which could not but be clearly
known by them, in effect tender no issue, or
otherwise admit the allegations of the complaint
material to a valid decision. [Manufacturer’s Bank v.
Diversified, G.R. No. 33695, May 15, 1989]
Judgment on the pleadings is proper when an
answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party’s
pleadings. The defense of the defendant was that
plaintiff was in bad faith. The courts ruled that the
answer in fact tendered an issue hence judgment
on the pleadings would be inapplicable. Summary
judgment also cannot apply because the
requirement for such is that there must not be a
genuine issue. The plaintiff, in this case, prayed for
an accounting which required a full blown trial
(requires presentation of evidence on partial
payment) hence there was a genuine issue in the
case at bar. [Sps. Ong v. Roban Lending, G.R. No.
172592, July 9, 2008]
Judgment on the pleading is a judgment on the
facts pleaded, and based exclusively upon the
allegations appearing in the pleadings and the
annexes. The trial court has the discretion to grant a
motion for judgment on the pleadings filed by a
party if there is no controverted matter in the case
after the answer is filed. This case was peculiar
because the defendant was the one who moved for
judgment on pleadings without offering proof as to
the truth of her allegations and without giving the
plaintiff opportunity to introduce evidence, the
defendant is deemed to have admitted the material
and relevant matters of the complaint. (Usually, it is
the plaintiff who files a judgment on pleadings)
[Sunbanun v. Go, G.R. No. 163280, Feb. 2, 2010]
One who prays for judgment on the pleadings
without offering proof as to the truth of his own
allegations and without giving the opposing party an
opportunity to introduce evidence, must be
understood to admit all material and relevant
allegations of the opposing party and to rest his
motion for judgment on those allegations taken
together with such of his own as are admitted in the
pleadings. [Falcasantos v. How Suy Ching, GR No.
L-4229, May 29, 1952]
A Motion for Judgment on the Pleadings is one that
is considered ex parte because upon particular
facts thus presented, the plaintiff is entitled to
judgment, or motu proprio under Section 2 [g] of
Rule 18 of the Rules of Court. [Dino v. Valencia,
G.R. No. L-43886, July 19, 1989]
Judgment on the pleadings is appropriate when an
answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party’s
pleading. An answer fails to tender an issue if it
does not comply with the requirements of a specific
denial as set out in Sections 8 and 10, Rule 8 of the
Rules, resulting in the admission of the material
allegations of the adverse party’s pleadings. As
such, it is a form of judgment that is exclusively
based on the submitted pleadings without the
introduction of evidence as the factual issues
remain uncontroverted. [GSIS v. Prudential, G.R.
No. 165585, Nov. 20, 2013]
One who prays for judgment on the pleadings
without offering proof as to the truth of his own
allegations and without giving the opposing party an
opportunity to introduce evidence, must be
understood to admit all material and relevant
allegations of the opposing party and to rest his
motion for judgment on those allegations taken
together with such of his own as are admitted in the
pleadings. (Falcasantos v. How Suy Ching, GR No.
L-4229, 1952)
A Motion for Judgment on the Pleadings is one that
is considered ex parte because upon particular
facts thus presented, the plaintiff is entitled to
judgment, or motu proprio under Section 2 [g] of
186
Rule 18 of the Rules of Court. (Dino v. Valencia,
G.R. No. L-43886, 1989)
Grounds
1. Answer fails to tender an issue because of:
a) General denial of the material allegations of
the complaint;
b) Insufficient denial of the material allegations
of the complaint; or
2. Answer admits the material allegations of the
adverse party’s pleading.
By moving for judgment on the pleading, plaintiff
WAIVES his claim for unliquidated damages. Claim
for such damages must be alleged and proved.
No Judgment on the Pleadings in Actions for
1. Declaration of Nullity of Marriage;
2. Annulment of marriage; and
3. Legal Separation
In actions for declaration of nullity or annulment of
marriage or for legal separation, the material facts
alleged in the complaint shall always be proved
(see Articles 48 and 60 of the Family Code). The
purpose is to prevent collusion between the parties.
Difference between motion to dismiss and
motion for judgment on the pleadings
MOTION TO DISMISS MOTION FOR
JUDGMENT ON
PLEADINGS
Filed by defendant to a Filed by the claimant
complaint,
counterclaim, cross-
claim, or third-party
complaint.
4. SUMMARY JUDGMENT
Nature of summary judgment
1. A summary judgment, also called accelerated
judgment, is proper where, upon a motion filed
after the issues had been joined and on the
basis of the pleadings and papers filed, the
court finds that there is no genuine issue as to
any material fact except as to the amount of
damages.
2. What triggers a summary judgment is the
absence of a genuine factual issue. It is
not proper where there are factual issues
to be resolved by the presentation of
evidence. Even if there is a complicated
question of law if there is no issue as to
the facts, a summary judgment is not
barred. (Velasco v. Court of Appeals, 329
SCRA 392).
One granted by the court, UPON MOTION, for the
prompt disposition of civil actions wherein it clearly
appears that there exists NO GENUINE ISSUE or
controversy as to any material fact, EXCEPT as to
the amount of damages.
It is granted AFTER the issues have been joined
and on the basis of pleadings, depositions,
admissions and affidavits, there exists NO genuine
factual issue. It is available to BOTH plaintiff and
defendant.
A genuine issue is an issue of fact which requires
the presentation of evidence as distinguished from
a sham, fictitious, contrived or false claim. When the
facts as pleaded appear uncontested or undisputed,
then there is no real or genuine issue or question as
to the facts, and summary judgment is called for.
The party who moves for summary judgment has
the burden of demonstrating clearly the absence of
any genuine issue of fact, or that the issue posed in
the complaint is patently unsubstantial so as not to
187
constitute a genuine issue for trial. (Philippine Bank
of Communications v. Go 642 SCRA 693, 2011)
The trial court cannot motu proprio decide that
summary judgment on an action is in order. The
defending party or claimant, as the case may be,
must invoke the rule on summary judgment by filling
a motion. The adverse party must be notified of the
motion for summary judgment and furnished with
supporting, affidavits, depositions or admissions
before hearing is conducted. (Pineda v. Heirs of
Eliseo Guevara, G.R. No. 143188, February 14,
2007)
Under Section 3, Rule 35 of the Rules of Court, a
summary judgment MAY NOT be rendered on the
amount of damages, although such judgment may
be rendered on the issue relating to the existence of
the right to damages. In this case, the Court
distinguished between the determination of the
amount of damages and the issue of the right to
damages itself in case of a summary judgment.
(Ybiernas v. Tanco-Gabaldon, G.R. No. 178925,
2011)
An action for annulment of marriage cannot be
decided by summary judgment proceeding (Roque
v. Encarnacion, G.R. No. L-6505, ] 1954)
Summary judgments are made specifically
applicable to a special civil action for Declaratory
Relief (Rule 63).
The motion shall be served at least ten (10) days
before the time specified for the hearing. The
adverse party may serve opposing affidavits,
depositions, or admissions at least three (3) days
before the hearing. (Section 3, Rule 35)
After the hearing, the judgment sought shall be
rendered forthwith if the pleadings, supporting
affidavits, depositions, and admissions on file, show
that, EXCEPT as to the amount of damages, there
is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a
matter of law. (Section 3, Rule 35)
If on motion for Summary Judgment, judgment is
NOT rendered upon the whole case or for all reliefs
sought and a trial is necessary, the court at the
hearing of the motion, by examining the pleadings
and the evidence before it and by interrogating
counsel, shall ascertain what material facts exist
without substantial controversy and what are
actually and in good faith controverted. (Section 4,
Rule 35)
It shall thereupon make an order specifying the
facts that appear without substantial controversy,
including the extent to which the amount of
damages or other relief is not in controversy, and
directing such further proceedings in the action as
are just. The facts so specified shall be deemed
established, and the trial shall be conducted on the
controverted facts accordingly. (Section 4, Rule 35)
a. FOR THE CLAIMANT
A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a
declaratory relief may, at any time AFTER the
pleading in answer thereto has been served, move
with supporting affidavits, depositions or admissions
for summary judgment in his favor upon all or any
part thereof. (Section 2, Rule 35)
b. FOR THE DEFENDANT
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 summary
judgment in his favor upon all or any part thereof.
(Section 3, Rule 35).
c. WHEN THE CASE NOT FULLY
ADJUDICATED ON MOTION
This authorizes rendition of PARTIAL summary
judgment but such is interlocutory in nature and is
NOT a final and appealable judgment.
The court shall make an order specifying the facts
that appear without substantial controversy. The
facts so specified shall be deemed established.
The trial shall be conducted on the controverted
facts only and judgment shall be rendered on the
facts that appear without substantial controversy.
The test is whether or not the pleadings, affidavits
and exhibits in support of the motion are sufficient
to overcome the opposing papers and to justify the
finding that, as a matter of law, there is no defense
to the action or claim clearly meritorious. [Estrada v.
Consolacion, G.R. No. L-40948, June 29, 1976]
188
 him to incur, including attorney’s fees. It may, after
d. AFFIDAVITS AND ATTACHMENTS hearing, further adjudge the offending party or
counsel guilty of contempt. (Section 6, Rule 35)
Requisites of affidavits:
1. Based on personal knowledge; 5. JUDGMENT ON THE PLEADINGS
2. Set forth facts as would be admissible in
evidence; VERSUS SUMMARY JUDGMENT
3. Show affirmatively that the affiant is competent to
testify to the matters stated therein.

Bases of Summary Judgment

1. Affidavits made on personal knowledge, set forth JUDGMENT ON THE SUMMARY
such facts as would be admissible as evidence PLEADINGS JUDGMENT
and show affirmatively that the affiant is Solely based on the Based on the
competent to testify on matters stated therein pleadings pleadings, depositions,
(Section 5, Rule 35); admissions, and
2. Depositions of the adverse party or a third party affidavits
under Rule 23;
3. Admissions of the adverse party under Rule 26;
or General Rule - Available to BOTH
4. Answers to interrogatories under Rule 25; all Available only to a plaintiff and defendant
intended to show that: claiming party like a
plaintiff or a
counterclaimant

Exception - Defendant
presents a
counterclaim
a) There is no genuine issue as to any material
fact, EXCEPT damages which must always
be proved; and There is an absence of There is an issue only
b) The movant is entitled to a judgment as a a factual issue in the as to the amount of
matter of law. case because the damages but not as to
answer tenders no any material fact
issue at all. or there is
an admission of
material allegations

Even if the answer does tender an issue, and

therefore a judgment on the pleadings is not proper, Notice required before Notice required before
a summary judgment may still be rendered if the hearing: Three (3) hearing: Ten (10) days.
issues tendered are not genuine, are sham, days The adverse party in
fictitious, contrived, set up in bad faith, and patently turn may serve
unsubstantial. (Vergara v. Suelto, G.R. No. L- opposing affidavits,
74766, 1987) depositions or
admissions at least
Affidavits in Bad Faith three days before the
It should it appear that the affidavits are: hearing.
1. Presented in bad faith; or
2. Solely for the purpose of delay.
On the merits May be interlocutory or
The court shall order the offending party or counsel on the merits
to pay to the other party the amount of reasonable
expenses, which the filing of the affidavits caused

189
There is already an If filed by the
answer filed PLAINTIFF, it must be
filed at any time after
an answer is served; Rendered by the court after a party expressly
agrees to the other party’s claim or acknowledges
If filed by the validity of the claim against him.
DEFENDANT, it may
be filed at any time JUDGMENT UPON A COMPROMISE
even before there is an Judgment rendered by the court on the basis of a
answer compromise agreement entered into between the
parties to the action. It has the force of law and is
conclusive between parties. It is NOT appealable.

Judgment upon a compromise is immediately

executory upon the signing of the compromise
agreement in the absence of a motion to set aside
on the ground of fraud, mistake, etc. Hence, it has
6. RENDITION OF JUDGMENTS AND the effect of res judicata. (World Machine
Enterprises v. IAC G.R. No. 72019, December 20,
FINAL ORDERS 1990)

Rendition of a judgment JUDGMENT ON THE MERITS

The filing of the signed decision with the clerk of
court. (Riano, 2014, p. 583)
NOTE: It is not the writing or signing of the
judgment which constitutes rendition of the
judgment. (Castro v. Malazo, 99 SCRA 164)
A case is deemed SUBMITTED FOR
RESOLUTION upon the filing of the last pleading,
brief or memorandum required by the Rules of
Court or by the court.
Even if the judgment has already been put in writing
and signed, it is STILL subject to amendment if it
has not yet been filed with the Clerk of Court.
Judgment rendered after consideration of the
evidence submitted by the parties during the trial of
the case.
JUDGMENT NON PROTUNC
A judgment intended to enter into the records acts
which had already been done, but which do not
appear in the records.
JUDGMENT SIN PERJUICIO
A dismissal of a case without prejudice to it being
refilled. It is one which contains only the dispositive
portion of the decision and reserves the making of
findings of fact and conclusions of law in a
subsequent judgment.

A judgment is considered RENDERED upon the PROMULGATION

FILING of the signed decision with the Clerk of
Court. This includes an amended decision because
an amended decision is a distinct and separate
judgment and must follow the established
procedural rule.
For a Judgment to be Valid
1. In writing, personally and directly prepared by
the Judge
2. State clearly and distinctly the facts and law on
which it is based
3. Signed by judge and filed with clerk of court
(Rule 36, Section 1)
JUDGEMENT BY CONFESSION
The process by which a decision is published,
officially announced, made known to the public or
delivered to the clerk of court for filing, coupled with
notice to the parties or their counsel.
MEMORANDUM DECISION
The judgment or final resolution of the appellate
court may adopt by reference the findings of facts
and conclusions of law contained in the decision of
the trial court.
7. ENTRY OF JUDGMENT AND FINAL
ORDER
If no appeal or motion for new trial or
reconsideration is filed within the reglementary

190
period, the judgment or final order shall be entered When justice so demands, the court may require
by the Clerk in the Book of Entries of Judgment. the parties on each side to file adversary pleadings
as between themselves and determine their
Date of the finality of the judgment or final order ultimate rights and obligations. (Rule 36, Section 3)
shall be deemed to be the DATE OF ITS ENTRY.
SEVERAL JUDGMENTS
Judgment is deemed FINAL when it disposes of a
Judgment rendered by a court, when proper,
case in a manner that leaves NOTHING more to be
against one or more defendants and NOT against
done by the court in respect thereto. (Rule 36,
all of them leaving the action to proceed against the
Section 1)
others. (Rule 36, Section 4)
Sec. 2 of Rule 36 clearly provides that “The date of
Several judgments is proper where
finality of the judgment or final order shall be
1. The liability of each party is clearly separable
deemed to be the date of its entry.”
and distinct from his co-parties such that the
claims against each of them could have been
General Rule: After judgment has become final and
the subject of separate suits, and
executory, the court cannot amend the same.
2. The judgment for or against one of them will not
necessarily affect the other. (Fernandez v. Sta.
Exceptions:
Maria, G.R. No. 160730, 2004)
Amendment May Be Possible in the Following
Instances:
It is NOT proper in actions against solidary debtors.
1. To make corrections of clerical errors but not
(Fernandez v. Sta. Maria, G.R. No. 160730, 2004)
substantial amendments;
2. To clarify an ambiguity which is borne out by
SEPARATE JUDGMENT
and justifiable in the context of the decision; and
Judgment rendered to dispose of one of the several
3. In judgments for support, which can always be
claims for relief presented in an action. (Rule 36,
amended from time to time.
Section 5)
Entry of judgment or final order is important for the
Separate Judgments are Made on One or
reckoning of reglementary periods such as the 5-
Several Claims
year period for execution by motion or the 6-month
1. At any stage;
period for a petition for relief (Regalado, Remedial
2. Upon a determination of the issues material to a
Law Compendium, 9th Ed.)
particular claim and all counterclaims arising out
of the transaction, or occurrence which is the
The judgment or final order has the effect of RES
subject matter of the claim;
JUDICATA between the two parties.
3. Such judgment terminates the claim, leaving the
action to proceed as to the remaining claims.
RES JUDICATA has Two Aspects
1. Bar by Prior Judgment – the judgment or final
REMEDIES AGAINST JUDGMENTS OR FINAL
order is a bar to the prosecution of a subsequent
ORDERS (Riano 2015 p. 630)
action based on the same claim or cause of
action.
Before Finality
2. Conclusiveness of Judgment – the judgment
1. Motion for Reconsideration
or final order precludes the re-litigation of
2. Motion for New trial
particular issues or facts on a different demand
3. Appeal
or cause of action.
After Finality
Judgment For or Against One or More of Several
1. Relief from Judgment or Final Order
PartiesJudgment MAY be given for or against one
2. Annulment of Judgment
or more of several plaintiffs, and for or against one
3. Petition for Certiorari
or more of several defendants.
4. Collateral Attack of a Judgment

191
Judgment against Entity without Juridical e. Remedy when motion is denied; fresh
Personality 15-day period rule
When judgment is rendered against two or more 2. APPEALS IN GENERAL
persons sued as an entity without juridical a. Judgments and final orders subject to
personality, the judgment shall set out their
appeal
individual or proper names, if known. (Rule 36,
Section 6) b. Matters not appealable
c. Remedy against judgments and orders
END OF TOPIC which are not appealable
d. Modes of appeal

i. Ordinary appeal
ii. Petition for review
iii. Petition for review on certiorari

P. POST-JUDGMENT REMEDIES
e. Issues to be raised on appeal
f. Period of appeal
g. Perfection of appeal
h. Appeal from judgments or final orders
of the MTC
i. Appeal from judgments or final orders
of the RTC
j. Appeal from judgments or final orders
of the CA
k. Appeal from judgments or final orders
of the CTA
l. Review of final judgments or final
1. MOTION FOR NEW TRIAL OR orders of the COMELEC
RECONSIDERATION m. Review of final judgments or final
orders of the Ombudsman
n. Review of final judgments or final
orders of the NLRC
o. Review of final judgments or final
orders of quasi-judicial agencies

a. Grounds
b. When to File
c. Denial of the motion; effect
d. Grant of the motion; effect

192
3. RELIEF FROM JUDGMENTS, within fifteen (15) days after notice to the appellant
of the judgment or final order appealed from. (Sec.
ORDERS AND OTHER 2, Rule 40; Sec. 3, Rule 41; Sec. 2, Rule 45, Rules
PROCEEDINGS of Court).

It does not refer to a motion for reconsideration of

an interlocutory order which, for instance, precedes
a petition for certiorari. (Rule 37, Section 1)

A motion for reconsideration of a judgment is a

a. Grounds for availing of the remedy prohibited motion in a case that falls under
b. Time to file petition summary procedure (Sec. 19[c], TV, Rules on
c. Contents of petition Summary Procedure; Bar
1989,1990).

The motion is likewise prohibited under Sec. 14(c)

4. ANNULMENT OF JUDGMENTS OR
FINAL ORDERS AND RESOLUTIONS
of the Rule of Procedure in Small Claims Cases
(A.M. No. 08-8-7- SC).
Effect of the filing of the motion on the period to
appeal
The filing of a timely motion for reconsideration
interrupts the period to appeal (Sec. 2, Rule 40;
Sec. 3, Rule 41, Rules of Court).

REQUIREMENTS

a. Grounds for annulment

b. Period to file action
c. Effects of judgment of annulment

MOTION FOR MOTION FOR

NEW TRIAL RECONSIDERATI
ON

5. COLLATERAL ATTACK OF
JUDGMENT

1. MOTION FOR NEW TRIAL OR

RECONSIDERATION (Rule 37)

Motion for New Trial (MNT)

One that moves for a re-opening of trial for new or
additional presentation of evidence in a case
already decided by the court but before the
judgment rendered thereon becomes final and
executory. Errors of law or irregularities are
expunged from the record, or new evidence is
introduced, or both steps are taken.

Motion for Reconsideration (MR)

One that is directed against a final judgment or a
final order, filed within the period for appeal, i.e.

193
 1. Must be 1. Must be in Exception:
in writing; writing; The allegations contained in
2. Affidavit 2. Must point an affidavit of merit required
to be attached to a motion
of the existence of out specifically
to lift an order of default or
fraud, accident, the conclusion
for a new trial need not be
mistake, or of judgment or
embodied in a separate
excusable conclusions of
document but may be
negligence (FAME) the judgment
incorporated in the petition
or newly or final order;
itself. Otherwise stated,
discovered 3. Grounds: when a motion to lift an
evidence (NDE);
order of default contains the
3. If ground reasons for the failure to
is FAME: answer as well as the facts
constituting the prospective
defense of the defendant
and it is sworn to by said
a. Excessive defendant, neither a formal
damages verification nor a separate
b. Insufficien affidavit of merit is
Affidavit of merit setting necessary. (Capuz vs. CA,
t evidence
forth the particular facts G.R. No. 112795, 1994)
(factual
claimed to constitute a
meritorious cause of c. Contrary
action; to law (legal)
If ground is NDE: (Rule 37,
Section 1)

Affidavit of Merit (for MNT)

One which recites the nature and character of
FAME on which the motion for new trial is based. It
a. Affidavit must state the movant’s good and substantial cause
of new witnesses; 4. Specific of action or defense and the evidence he/she
assignment of intends to present if the motion is granted which
and
trial court evidence should be as such as to warrant
b. Duly
findings that reasonable belief that the result of the case would
authenticated probably be otherwise.
are challenged
documents to be
with express
introduced.
reference to
testimonial or Effect of Motion for New Trial or
documentary Reconsideration and Notice Thereof
evidence or to A motion suspends or tolls the running of the
provisions of reglementary period to appeal EXCEPT when it is
law; pro-forma.
5. Written
4. Written notice to notice to PRO-FORMA MOTION (Rule 37, Section 2)
adverse party A motion that does NOT comply with Rule 15
adverse party
(Rule 37, Section 2) (mandatory requirement of notice and hearing) and
(Rule 37,
Section 2) Rule 37 (requirement that the motion must point out
specifically the findings or conclusions of the
judgment as are contrary to law, fails to make
express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be

194
contrary to such findings or conclusions, and is a. GROUNDS
merely intended to delay the proceedings or if there
is no affidavit of merit).

A pro forma motion is a worthless piece of paper

which the clerk of court has no right to receive and
which the court has no authority to act upon.

A motion for reconsideration is NOT pro forma just

because it reiterated the arguments earlier passed
upon and rejected by the appellate court. This is
because a movant may raise the same arguments,
precisely to convince the court that its ruling was
erroneous. (Security Bank v. Cuenca, GR No.
151914, 2002)
MOTION FOR MOTION FOR
Moreover, the rule (that a motion is pro forma if it NEW TRIAL RECONSIDERATION
only repeats the arguments in the previous
pleadings) will NOT apply if said arguments were
not squarely passed upon and answered in the
decision sought to be reconsidered. (Ong Yong v.
Tiu, GR No. 144476, 2003)Where the
circumstances of a case do not show an intent on
the part of the pleader to merely delay the
The Grounds Are The Grounds Are:
proceedings, and his motion reveals a bona fide
effort to present additional matters or to reiterate his
arguments in a different light, the courts should be
slow to declare the same outright as pro forma. The
doctrine relating to pro forma motions has a direct
bearing upon the movant’s valuable right to appeal.
It would be in the interest of justice to accord the
appellate court the opportunity to review the
decision of the trial court on the merits than to abort 1. Fraud 1. The damages
the appeal by declaring the motion pro forma, such (Extrinsic), awarded are
that the period to appeal was not interrupted and Accident, Mistake excessive;
had consequently lapsed (Philippine National Bank or Excusable
v. Paneda, 515 SCRA 639, 649. Negligence 2. The evidence
(FAME); or is insufficient to
A motion for reconsideration is deemed pro forma if justify the decision
the same does not specify the findings or 2. Newly or final order
conclusions in the judgment which are not discovered (factual question);
supported by the evidence or contrary to law, evidence (NDE), or
making express reference to the pertinent evidence which could not,
or legal provisions. It is settled that although a with reasonable
motion for reconsideration may merely reiterate diligence, have
issues already passed upon by the court that by been discovered
itself does not make it pro forma and is immaterial and produced at
because what is essential is compliance with the the trial, and
requisites of the Rules. which, if
presented, would
probably alter the
result.

195

3. The decision
or final order is
contrary to law
(legal question).
GROUNDS FOR NEW TRIAL
1. EXTRINSIC FRAUD – Extrinsic or collateral
fraud, as distinguished from intrinsic fraud,
connotes any fraudulent scheme executed by a
prevailing litigant outside the trial of a case
against the defeated party, or his agents,
attorneys or witnesses, whereby said defeated
party is prevented from presenting fully and
fairly his side of the case. (Libudan vs. Gil, G.R.
No. L-21163, 1972)
(Example: preventing a witness from testifying).
Note: Compare with intrinsic fraud –
Intrinsic fraud takes the form of acts of a
party in a litigation during the trial which
did not affect the presentation of the case,
but did prevent a fair and just detemination
of the case. (Libudan vs. Gil, G.R. No. L-
21163, 1972)
(Example: use of forged instruments or
perjured testimony).
For the next three grounds: The ACCIDENT,
MISTAKE, and EXCUSABLE NEGLIGENCE must
be something which ordinary prudence could not
have guarded against and by reason of which the
party applying has probably been impaired in this
rights. (De Leon, Appellate Remedies, 2013, p.21)
2. ACCIDENT – An event that takes place without
one’s reasonable foresight or expectation.
3. MISTAKE – The general rule is that only
mistakes of “fact” (as opposed to mistake of
“law”) may be a ground for new trial.
Thus, the petitioner’s claim of having
committed an “honest mistake” in not filing an
answer to respondent’s petition for prohibition
and declaratory relief because of its belief that
the RTC did not acquire jurisdiction over it was
held to be a “mistake of law” which cannot be
a ground for new trial. (De Leon, Appellate
Remedies, 2013, p.21, citing Viking Industrial
Corporation v. CA GR No. 143794, 2004)
However, the Supreme Court has on occasion
recognized a mistake in “law”, made in good
faith, and where such mistake misled a party,
as a ground for new trial. Regalado gives as
examples of mistake of “law” a mistake as to
the scope and extent of the coverage of an
ordinance (citing City of Iloilo vs. Pinzon, L-
7552, May 31, 1955) and a mistake of a
defendant who failed to file an answer to the
complaint (and consequently declared in
default) because the defendant relied on a
compromise agreement with the plaintiff. The
defendant failed to properly appreciate the
effect of the compromise agreement on the
pending case. (Salazar vs. Salazar, 8 Phil. 183)
196

4. EXCUSABLE NEGLIGENCE – Depends upon
the circumstances of the case.
Note: The test of excusable negligence is whether
a party has acted with ordinary prudence while
transacting important business. (Philippine
Phosphate Fertilizer Corporation v. Commissioner
of Internal Revenue G.R. No. 141973, 2005)
GENERAL RULE: Negligence of counsel is binding
upon the client.
EXCEPTION: Such negligence of counsel may
be a ground for new trial if it was so great that
the party was prejudiced and prevented from
fairly presenting his/her case, viz:
a) Where the gross negligence of
counsel deprives the client of due process
of law;
b) When the application of the rule
will result in the outright deprivation of
client’s liberty or property; or
c) Where the interest of justice so
requires. (Redena vs. CA, G.R. No.
146611, 2007)
d) Where gross negligence of
counsel will deprive or has deprived the
party of his substantial rights.
For a claim of counsel’s negligence to prosper,
nothing short of clear abandonment of the client’s
cause must be shown. (Multi-trans Agency v.
Oriental Assurance GR No. 180817, 2009)
5. NEWLY DISCOVERED EVIDENCE
Requisites to be Considered as Newly
Discovered Evidence:
1. The evidence was discovered after trial;
2. Such evidence could not have been
discovered and produced at trial despite the
exercise of reasonable diligence; and
3. It is material, not merely cumulative,
corroborative or impeaching; and
4. It is of such weight that, if admitted, will
probably change the judgment. (Tumang v. Court of
Appeals G.R. Nos. 82346-47, 1989)
Otherwise, it is barred and called FORGOTTEN
EVIDENCE.
Newly discovered evidence need not be newly
created evidence. It may and does commonly refer
to evidence already in existence prior or during trial.
(Tumang v. Court of Appeals G.R. Nos. 82346-47,
1989)
If the documents belatedly submitted are public
records, they cannot be considered as “newly
discovered” since these could be secured during
trial. (Heirs of Emilio Santioque v. Heirs of Emilio
Calma, GR No. 160832, 2006)
Important: MOTIONS FOR EXTENSION OF TIME
to file a motion for new trial may be filed only in
connection with cases pending before the Supreme
Court, which may in its sound discretion either
197
grant or deny the extension requested. (Marcelo v. grant or deny the extension requested. (Habaluyas
PCIB, GR No. 182735, 2009) Enterprises v Japson, GR No. 70895, 1986)

The Habaluyas ruling applies even if the motion is

filed before the expiration of the reglementary
period. (Fernandez v. CA, GR No. 131094, 2005)

b. WHEN TO FILE
No motion for extension may be filed before any
lower courts, as stated in Sec. 2(2), Rule 40 and
Sec. 2, Rule 41.

GROUNDS FOR MOTION FOR

RECONSIDERATION
1. Damages awarded are excessive; WHEN AND WHERE TO FILE
2. Evidence is insufficient to justify the decision or
final order; and
3. Decision or final order is contrary to law.

A motion for reconsideration must point out

specifically the findings or conclusions of the
judgment or final order which are not supported by
evidence or which are contrary to law, making MOTION FOR MOTION FOR
specific reference to the testimonial or NEW TRIAL RECONSIDERATION
documentary evidence presented or to the
provisions of law alleged to be violated. (Cansino v.
CA GR No. 125799, 2003)

A winning litigant may also move for reconsideration

of a part or parts of a decision or final order.
(Balanoba v. Madriaga, GR No. 160109, 2005)
WHEN TO FILE
As a rule, a motion for reconsideration seasonably
filed in the Court of Appeals will NOT necessarily
preclude a motion for new trial as long as it was
also filed on time. Further, a denial of a motion for
reconsideration entitles the party who filed said
motion another 15 days to appeal by certiorari – the
same period within which a motion for new trial may Within the period for Within the period for
be filed. (Tiongco v. Deguma, GR No. 133619, taking an appeal. taking an appeal. This is
1990) This is within 15 within 15 days (or 30 days
days (or 30 days if a if a record on appeal is
Note: MOTIONS FOR EXTENSION OF TIME to file record on appeal is required) after receipt of
a motion for reconsideration may be filed only in required) after notice to the appellant of
connection with cases pending before the Supreme receipt of notice to the judgment or final order
Court, which may in its sound discretion either the appellant of the appealed from.

198
judgment or final MOTION FOR MOTION FOR
order appealed from. NEW TRIAL RECONSIDERATION

WHERE TO FILE If denied, not If denied, not

appealable; will have appealable; remedy is to
to wait for the appeal from the
judgment and appeal judgment or final order.
therefrom. remedy is (Rule 37, Section 9)
to appeal from the
judgment or final This means that if the
order. (Rule 37, motion is denied, the
With the trial court With the trial court which Section 9) movant has a “fresh
which rendered the rendered the questioned period” of 15 days from
questioned judgment judgment or final order This means that if the receipt or notice of the
sought to be reconsidered motion is denied, the order denying or
movant has a “fresh dismissing the motion for
period” of 15 days reconsideration from
from receipt or notice which to file a notice of
of the order denying or appeal. (Neypes v.
dismissing the motion Court of Appeals, 469
for new trial from SCRA 633).
which to file a notice of
appeal.

c. DENIAL OF THE MOTION; EFFECT

d. GRANT OF THE MOTION; EFFECT

EFFECT OF DENIAL OF MOTION

199
EFFECT OF GRANT OF MOTION The court may either only a part, or less than
enter a judgment or all of the matters in
final order as to the controversy, or only one,
rest or stay the or less than all, of the
enforcement of such parties to it, the order may
judgment or final grant a reconsideration as
order until after new to such issues if
MOTION FOR MOTION FOR trial. severable without
NEW TRIAL RECONSIDERATION interfering with the final
judgment or order upon
the rest.

GRANT OF MOTION
(Rule 37, Section 6)

If a new trial is If the court finds that e. REMEDY WHEN MOTION IS DENIED,
granted, the trial excessive damages have FRESH 15-DAY PERIOD
court will set aside been awarded or that the
the judgment or final judgment or final order is
order. The case contrary to the evidence
stands for trial de or law, it may amend such
novo and will be tried judgment or final order
anew. accordingly.

PARTIAL GRANT OF MOTION A party shall have a FRESH PERIOD of 15 days to

(Rule 37, Section 7)
Partial new trial is Partial reconsideration is
allowed where less allowed. If the court finds
than all of the issues that a motion affects the
are ordered retried. issues of the case as to
file a notice of appeal to the RTC from receipt of the
order denying a motion for new trial or motion for
reconsideration. This rule shall apply to Rules 40,
41, 42, 43 and 45 (Neypes vs. CA, G.R. No.
141524, 2005) and in criminal cases under Section
6 of Rule 122 of the Revised Rules of Criminal
Procedure. (Yu vs. Tatad, G.R. No. 170979, 2011)
Note: The period is 30 days if record on appeal is
required.
Recall:

200
1. Rule 40 – Appeals from MTC to RTC
2. Rule 41 – Appeals from RTC to CA from NO Appeal May be Taken From:
decisions rendered by the RTC in the exercise 1. An order denying a petition for relief or any
of its original jurisdiction similar motion seeking relief from judgment;
3. Rule 42 – Petitions or review from RTC to CA 2. An interlocutory order;
from decisions of the RTC in the exercise of its
appellate jurisdiction
4. Rule 43 – Appeals from Quasi-Judicial
Agencies to CA
5. Rule 45 – Appeals by certiorari to SC

The fresh period does NOT refer to the period Note: An interlocutory order does NOT dispose
within which to appeal from the order denying the of the entire case; it does not put an end to a
motion for reconsideration BUT to the period within case before the court.
which to appeal from the judgment itself
because an order denying a motion for
reconsideration is not appealable.

2. APPEALS IN GENERAL
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 ending,
unless the court allows an appeal therefrom; and
7. An order dismissing an action without prejudice.
(Rule 41, Section 1)
a. JUDGMENTS AND FINAL ORDERS
SUBJECT TO APPEAL
c. REMEDY AGAINST JUDGMENTS AND
ORDERS WHICH ARE NOT APPEALABLE

In those instances where the judgment or final order

is not appealable, the aggrieved party may file the
appropriate special civil action under Rule 65. (Rule
41, Section 1)
The right to appeal is not a natural or inherent right;
d. MODES OF APPEAL
it is not a part of due process but a mere statutory
privilege that has to be exercised only in the
manner and in accordance with law.

An appeal may be taken only from judgments or

final orders that completely dispose of the case.

An interlocutory order is NOT appealable until after

(i) ORDINARY APPEAL
a judgment on the merits has been rendered.

b. MATTERS NOT APPEALABLE

201
 a. ISSUES TO BE RAISED ON APPEAL
An appeal taken by filing a notice of appeal (and a
record on appeal, when proper) from a judgment
or final order of a lower court on questions of fact
and law.

RULE 40 – APPEAL FROM MTC TO RTC

RULE 41 – APPEAL FROM RTC from decisions
rendered by the RTC in the exercise of its original NOTE: The issues that may be raised on appeal
jurisdiction depend on the kind of appeal filed.

1) Questions of FACT – exists when the doubt or

difference arises as to the truth or the falsehood
of alleged facts; or when the query necessarily
invites calibration of the whole evidence
considering mainly the credibility of witnesses,
existence and relevancy of specific surrounding
(ii) PETITION FOR REVIEW (Rule 42)
circumstances, their relation to each other and
to the whole and the probabilities of the
situation (Sesbreno vs. CA, G.R. No. 84096,
1995); (Cirtek Employees Labor Union vs.
Cirtek Electronics, Inc., G.R. No. 190515, 2011)

An appeal from the judgment or final order of the

Regional Trial Court to the Court of Appeals
decided by the Regional Trial Court in the exercise
of its appellate jurisdiction on questions of fact, of
law or of fact and law.
2) Questions of LAW – exists when the
doubt or difference arises as to what the law is
on certain state of facts (Sesbreno vs. CA, G.R.
No. 84096, 1995); (Cirtek Employees Labor
Union vs. Cirtek Electronics, Inc., G.R. No.
190515, 2011) It also pertains to the legal
consequences or effects of the law on a given
set of facts.
(iii) PETITION FOR REVIEW ON
CERTIORARI (Rule 45)

3) MIXED Questions of Fact and Law

An appeal from a judgment or final order of the
Regional Trial Court in the exercise of its original
jurisdiction but ONLY on questions of law. It also
pertains to an appeal from the judgment, final order
or resolutions of the Court of Appeals,
Sandiganbayan, Court of Tax Appeals en banc.

202
 MODE OF APPEAL QUESTIONS OF FACT, OR LAW, OR BOTH
and
ISSUES TO BE RAISED

1) Rule 40 - Appeal from MTC to RTC

• Notice of Appeal filed with the MTC and

payment of fees

2) Rule 41 - Appeal from RTC (exercising

original jurisdiction) to CA

• Notice of Appeal filed with the RTC and

payment of fees

203
3) Rule 42 - Appeal from RTC (exercising • Petition for Review on Certiorari filed
appellate jurisdiction) to CA with the SC with payment of fees

• Petition for Review filed with RTC with

payment of fees General Rule: Pure questions of law

Exceptions based on SC Circulars:

4) Rule 43 - Appeal from QJA to CA

(a) Writ of Amparo
(b) Writ of Habeas Data
(c) Writ of Kalikasan

• Petition for Review filed with CA with

payment of fees

Exceptions based on Jurisprudence:

(a) When the factual findings of the Court of
Appeals and the trial court are contradictory;
(2) when the conclusion is a finding grounded
entirely on speculation, surmises, or
Generally, QUESTION OF LAW only
conjectures;
(b) When the inference made by the Court of
Appeals from its findings of fact is manifestly
mistaken, absurd, or impossible;
(c) When there is a grave abuse of discretion in
the appreciation of facts;
(d) When the Appellate Court, in making its
Rule 45 - Appeal from CA, CTA en banc, findings, went beyond the issues of the case
Sandiganbayan, and RTC, on pure questions of and such findings are contrary to the
law admissions of both appellant and appellee;
(e) When the judgment of the Court of Appeals is
premised on a misapprehension of facts;     

204
 Rule 40 - 15 days or 30 days (if
Appeal from record on appeal is
MTC to RTC required) from notice of
(f) When the Court of Appeals failed to notice final judgment or final
certain relevant facts which, if properly order
considered, would justify a different - Full payment of appeal
conclusion;   fees within the period to
(g) When the findings of fact are themselves appeal
conflicting; - Non-extendible, but
(h) When the findings of fact are conclusions MR/MNT will trigger fresh
without citation of the specific evidence on period from receipt of
which they are based; and order of denial
(i) When the findings of fact of the Court of
Appeals are premised on the absence of Rule 41 Appeal - GR: 15 days or 30 days (if
evidence but such findings are contradicted from RTC record on appeal is
by the evidence on record. (Local Superior (original) to CA required) from notice of
vs. Jody King, G.R. No. 141715, 2005) final judgment or final
order
- EXC: 48 hours for habeas
corpus cases
- Full payment of appeal
fees within the period to
appeal
- Non-extendible, but
f. PERIOD OF APPEAL MR/MNT will trigger fresh
period from receipt of
Period of Remedies order of denial

Rule 42 - 15 days from notice of

Petition for decision
REMEDY PERIOD Review from - Extendible for 15 days
RTC
Rule 37 - 15 days or 30 days (if
(appellate) to
upon proper motion and
MR/MNT record on appeal is payment of the full
CA
required) from notice of amount of docket and
final judgment or final other lawful fees and
order deposit for costs before
- No extension allowed the expiration of the
reglementary period
- 2nd MR not allowed (Rule
37, Section 5) - Extendible for another 15
days for the most
Rule 38 - Within 60 days after compelling reasons
Petition for knowledge but not more
Relief from than 6 months after entry
Judgment of judgment (date of
finality)
- Non-extendible;
uninterrupted

205
Rule 43 - 15 days from notice of the
Appeals from award, judgment, final
QJA to CA order or resolution, or
from the date of its last
publication, if publication
is required by law for its
effectivity, or of the denial
of petitioner's motion for
new trial or
reconsideration duly filed
in accordance with the
governing law of the court
or agency a quo
- Only one (1) motion for
reconsideration shall be
allowed
- Extendible for another 15
days for the most
compelling reasons with
full payment of docket
fees
Rule 45 Appeal - 15 days from notice of the
by certiorari judgment or final order or
[from RTC, CA, resolution appealed from,
CTA En Banc, or of the denial of the
on pure petitioner's motion for new
questions of trial or reconsideration
law, to the SC - Extendible for 30 days on
justifiable reasons upon
motion duly filed and
served, with full payment
of the docket and other
lawful fees and the
deposit for costs before
the expiration of the
reglementary period
RULE 64 - 30 days from notice of the
Review of judgment or final order or
Judgments and resolution sought to be
Final Orders or reviewed.
Resolutions of - MR or MNT, if allowed
COMELEC and
under the procedural rules
the COA
of the Commission
concerned, shall interrupt
the period herein fixed
(no fresh period!)
- If the motion is denied, the
aggrieved party may file
the petition within the
remaining period, but
which shall not be less
than 5 days in any
event, reckoned from
notice of denial.
Rule 65 – - 60 days from notice of the
Certiorari, judgment, order or
Prohibition, resolution
Mandamus - MR/MNT will trigger fresh
period from receipt of
order of denial
g. PERFECTION OF APPEAL

Rule 47 - Extrinsic fraud: 4 years

Annulment of from discovery
Judgments - Lack of jurisdiction: before
barred by laches or
estoppel
RULES 40 and 41

If by notice of appeal:

206
 - Appeal is deemed perfected as to elevation of the the rest of the case
the party appealing upon the filing of the notice of original records to the because the original
appeal and full payment of appeal fees in due appellate court as to records remain with
time. thereby OBSTRUCT the trial court even as
the trial court in its it affords the
further proceedings appellate court the
regarding the other full opportunity to
parts of the case. review and decide the
appealed matter.

(De Leon, Appellate Remedies, 2013, p. 53, citing

2. If by record on appeal: Lebin vs. Mirasol, G.R. No. 164255, September 7,
2011)

RULE 42
Appeal is perfected as to petitioner upon timely:
1. Filing of a petition for review; and
2. Payment of the corresponding docket and
- Appeal is deemed perfected as to other lawful fees. (Rule 42, Section 8)
the party appealing upon the approval of the
record on appeal filed in due time. (Rule 41,
Section 9)

h. APPEAL FROM JUDGMENTS OR FINAL

ORDERS OF THE MTC (Rule 40)

NOTICE OF APPEAL RECORD ON Where to Appeal

APPEAL An appeal from a judgment or final order of an
Municipal, Metropolitan, Municipal Circuit Trial
Court may be taken to the Regional Trial Court
exercising jurisdiction over the area to which the
former pertains.

The title of the case shall remain as it was in the

An appeal by notice The record on appeal
of appeal is a mode enables the trial court
that envisions the to CONTINUE with
court of origin, but the party appealing shall be
further referred to as the appellant and the adverse
party, the appellee.
After an appeal to the RTC has been perfected, the
MTC loses jurisdiction over the case and any
motion for the execution of the judgment should be

207
filed with the RTC (Rule 40, Section 1), subject to
the MTC’s residual jurisdiction under Rule 41,
Section 9 in relation to Rule 40, Section 4.
MODE OF APPEAL: Notice of Appeal
The notice of appeal does not require the approval
of the court. The function of the notice of appeal is
merely to notify the trial court that the appellant was
availing of the right to appeal, and not to seek the
court’s permission that he be allowed to pose an
appeal. (Crisologo v. Daray A.M. No. RTJ-07-2036,
2006)
How to Appeal
1. FILE a notice of appeal within 15/30 days from
notice of judgment or final order with the court
that rendered it, and SERVE upon the adverse
party.
2. PAY the full amount of the appellate court
docket and other legal fees to the clerk of the
court which rendered the judgment or final
order. (BUT, failure to pay warrants only
discretion to dismiss the appeal.) (Rule 40,
Section 3)
NOTICE OF APPEAL should indicate:
1. Parties to the appeal.
2. Date of judgment or final order or part thereof
appealed from.
3. Court to which the appeal is being taken; and
4. Material dates showing the timeliness of the
appeal (i.e., when the judgment or final order
was received, when the motion for
reconsideration or new trial was filed, and when
denial of the motion for reconsideration or
motion for new trial was received).
RECORD ON APPEAL, which is required only in
a.) Certain kinds of special proceedings; or
b.) Other cases of multiple or separate appeals,
shall:
1. State the full names of the parties to the
proceedings in its caption
2. Include:
a. Judgment or final order from
which the appeal is taken.
b. In chronological order, copies of
such pleadings, petitions, motions, and all
interlocutory orders as are related to the appealed
judgment or final order for the proper understanding
of the issue involved; and
c. Such data as will show that the
appeal was perfected on time.
3. Contain a subject index, if it exceeds 20 pages.
Copies of the notice of appeal and the record on
appeal (when required) shall be served on the
adverse party.
MATERIAL DATA RULE
The requirement for “material dates showing the
timeliness of the appeal” is the same as the
“material data rule” applicable to records on appeal
with respect to the contents thereof.
Appellate Court Docket and Other Lawful Fees
Within the period for taking an appeal, the
appellant shall pay to the Clerk of the Court which
rendered the judgment or final order appealed from,
the full amount of the appellate court docket and
other lawful fees. (Rule 40, Section 5)
Proof of payment shall be transmitted to appellate
court together with the original record or the record
on appeal, as the case may be.
Note: It is the responsibility of the MTC clerk of
court to attach appellant’s proof of payment to the
original record. Whatever omission or negligence
on the part of such clerk of court should not
adversely affect the appellant. (De Leon, Appellate
Remedies, 2013, p. 42)
Payment of docket fees within the period to appeal
is MANDATORY for the perfection of an appeal.
Without such payment, the appellate court does not
acquire jurisdiction over the subject matter of the
action and the decision sought to be appealed
becomes final and executory. (Alfonso vs. Andres,
G.R. 139611, 2002). The payment of the appellate
docket fee is not a mere technicality of law or
procedure but an essential requirement for the
perfection of an appeal (Enriquez vs. Enriquez,
G.R. No. 139303, 2005) and without which the
decision or final order appealed from would become
final and executory as if no appeal was filed at all.
(Sps. Manalili vs. Sps. De Leon, G.R. No. 140858,
2001)
Note: While, in appealed cases, the full payment of
the appellate docket fees within the prescribed
period is mandatory, even jurisdictional, the failure
to pay warrants only discretionary as opposed to
208
automatic dismissal of the appeal. (De Leon,
Appellate Remedies, 2013, p. 41)
GENERAL RULE
The court will dismiss the appeal when there is no
full payment of appellate docket fees within the
prescribed period to appeal.
EXCEPTIONS which warrant a relaxation of the
application of rules on payment of docket fees:
1. Most persuasive and weighty
reasons.
2. To relieve a litigant from an
injustice not commensurate with his/her
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 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.
(Villena v. Rupisan, GR No. 167620, 2007)
IMPORTANT when invoking liberality:
The party invoking liberality should adequately
explain his failure to abide by the rules. (Navarro vs.
Metrobank, G.R. No. 138031, 2004) Anyone
seeking an exemption has the burden of proving
that exceptionally meritorious instances exist which
warrant departure from the Rule (RP vs. CA, G.R.
No. 129846, 2000).
Duty of the Clerk of Court
Within fifteen (15) days from the perfection of the
appeal, the clerk of court or the branch clerk of
court of the lower court shall transmit the original
record on appeal, together with the transcripts and
exhibits, which he/she shall certify as complete, to
the proper RTC.
A copy of his/her letter of transmittal of the records
shall be furnished the parties. (Rule 40, Section 6)
Note: Still, it must be emphasized that the
reckoning point for the RTC to acquire jurisdiction
over the appeal is NOT the receipt of the letter of
transmittal and of the notice of appealed case, but
the timely filing of the notice of appeal in
accordance with Sec. 9, Rule 41. (De Leon,
Appellate Remedies, 2013, p. 44)
RESIDUAL JURISDICTION of the Court
Prior to the transmittal of the original record or
record on appeal, the court may: (IAPOA)
1. Issue orders for the protection and preservation
of the rights of the parties which do not involve
any matter litigated by the appeal.
2. Approve compromises.
3. Permit appeals of indigent litigants.
4. Order execution pending appeal in accordance
with Sec. 2, Rule 39; and
5. Allow withdrawal of the appeal.
Note: Reckoning point for the exercise of residual
jurisdiction is the transmittal of records to the
appellate court.
Procedure in the Regional Trial Court
209
1. Upon receipt of the complete record or the
record on appeal, the clerk of court of the RTC
shall notify the parties of such fact.
2. Within fifteen (15) days from notice, it shall be
the duty of the appellant to submit a
MEMORANDUM OF APPEAL to briefly discuss
the errors imputed to the lower court, and a
copy shall be furnished by him/her to the
adverse party.
3. Within fifteen (15) days from receipt of the
appellant’s memorandum, the appellee may
file his/her MEMORANDUM OF APPEAL; and
4. Upon filing of the memorandum of the appellee,
OR the expiration of the period to do so, the
case shall be considered SUBMITTED FOR
DECISION. (Rule 40, Section 7)
The RTC shall decide the case on the basis of the
entire record of the proceedings in the court of
origin and such memoranda as are filed.
Failure of the APELLANT to file a memorandum
shall be a ground for the dismissal of the appeal.
The requirement for the submission of appellant’s
memorandum is a mandatory and compulsory rule.
Non-compliance therewith authorizes the dismissal
of the appeal.
Where the party has appealed by counsel in the
inferior court, the notice should be sent to his
attorney; BUT if the notice is sent to the party
himself/herself and he/she actually received the
same, such notice is valid and binding.
The notice to be sent to the parties cannot be
downplayed as a mere formality, for it is such notice
which sets in motion the appellate procedure before
the RTC and the running of the prescriptive period
within which the appellant must file his/her appeal
memorandum. Moreover, the notice must be
categorical enough in stating that the RTC has
already received the records of the case. If there is
no such notice or the notice is defective in that it
does not contain a statement that the RTC is
already in possession of the records of the case,
the appellant stands to lose his/her right to seek a
judicial review of his/her case. Thus, a notice to the
effect that a case under appeal “is entered in the
Docket Book of the RTC” was deemed insufficient
to commence the appeal before the RTC and the
running of the 15-day period within which the
appellant must file his appeal memorandum. (De
Leon, Appellate Remedies, 2013, p. 45)
The RTC presently decides all appeals from the
MTC based on the entire record of the
proceedings had in the court of origin and such
memoranda or briefs as may be submitted by the
parties or required by the RTC. As a consequence,
the RTC, in exercising its appellate jurisdiction, is
not limited to errors assigned in the appeal
memorandum. Thus, in Macaslang v. Zamora, it
was held that the RTC, as an appellate court, could
rule on the failure of the complaint to state a cause
of action and the lack of demand to vacate even if
not assigned in the appeal. (De Leon, Appellate
Remedies, 2013, p. 49)
Appeal from Orders Dismissing Case Without
Trial; Lack of Jurisdiction
If an Appeal is Taken from an Order of the Lower
Court (i.e., MTC) Dismissing the Case WITHOUT
TRIAL on the Merits – The Regional Trial Court
May
1. If AFFIRMED - and the ground of the dismissal
is lack of jurisdiction over the subject matter,
the Regional Trial Court, if it has jurisdiction,
SHALL TRY the case on the merits AS IF the
case was originally filed with it.
2. If REVERSED - the case shall be remanded to
the MTC for further proceedings.
If the Case WAS TRIED on the Merits by the Lower
Court (i.e., MTC) Without Jurisdiction over the
Subject Matter:
The RTC on appeal shall NOT dismiss the case if it
has original jurisdiction thereof, BUT shall decide
the case WITHOUT prejudice to the admission of
amended pleadings and additional evidence in the
interest of justice. (Rule 40, Section 8)
Applicability of Rule 41
The other provisions of Rule 41 shall apply to
appeals provided in this Rule. Thus, the inferior
courts also exercise residual jurisdiction in the
same manner provided under paragraph 5, Section
9 of Rule 41. (Rule 40, Section 9)
i. APPEAL FROM JUDGMENTS AND
FINAL ORDERS OF THE RTC
210

Two Modes:
1. RULE 41 – Appeal by Notice of Appeal from
RTC, exercising original jurisdiction, to the CA.
2. RULE 42 – Petition for Review from RTC,
exercising appellate jurisdiction, to the CA.
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 ending,
unless the court allows an appeal therefrom; and
7. An order dismissing an action without prejudice.
Modes of Appeal

1. APPEAL FROM THE REGIONAL TRIAL

COURTS (Rule 41)

ORDINARY APPEAL PETITION FOR

(Rule 41) REVIEW
(Rule 42)

Appeal is not a right but Discretionary

Subject of Appeal a statutory privilege,
The right to appeal is not part of due process but a thus, appeal must be
mere statutory privilege that has to be exercised made strictly in
only in the manner and in accordance with law. accordance with the
provision set by law.
An appeal may be taken only from judgments or (Enriquez vs. Enriquez,
final orders that completely dispose of the case. G.R. No. 139303, 2005)

An interlocutory order is NOT appealable until after

judgment on the merits has been rendered.

In those instances where the judgment or final order

is not appealable because it is interlocutory, the
aggrieved party may file the appropriate special civil
action under Rule 65. All the records are No records are
elevated from the court elevated unless the
Section 1 Rule 41 of the Rules of Court Provides of origin. court decrees it.
That 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
Notice and record on Filed with the Court of

211
appeal if required are Appeals. by the by the Regional Trial
filed with the court of Regional Trial Regional Trial Court where
origin and payment of Court in its Court in the only questions
fees original exercise of its of law are
jurisdiction appellate raised or
jurisdiction involved

The case was decided The case was decided

by the RTC pursuant to by the RTC pursuant to
its original jurisdiction. its appellate jurisdiction. By NOTICE By PETITION By PETITION
OF APPEAL FOR REVIEW FOR REVIEW
with the court filed with the ON
which Court of CERTIORARI
rendered the Appeals in filed with the
judgment or accordance Supreme Court
final order with Rule 42 in accordance
appealed from and serving a with Rule 45
Period to file is a matter Period to file is a matter (i.e., Regional copy thereof and serving a
of right but is NON- of right and is Trial Court) upon the copy thereof
EXTENDIBLE EXTENDIBLE and serving a adverse party upon the
copy thereof adverse party
upon the
adverse party

RECORD OF
APPEAL shall
be required
only in:
Modes of Appeal from RTC 1. Special
proceedings;
2. Multiple or
separate
appeals where
the law or the
Rules so
ORDINARY PETITION APPEAL BY require
APPEAL FOR REVIEW CERTIORARI
(RULE 41) (RULE 42) (RULE 45)

Questions of Questions of Question of

fact or mixed fact, of law, or law only from
Appeal to the Appeal to the Appeal to the questions of mixed judgment or
Court of Court of Supreme Court fact and law questions of final order
Appeals in Appeals in in all cases fact and law rendered by
cases decided cases decided decided by the RTC in the

212

exercise of its
original
jurisdiction
Period of Ordinary Appeal; Appeal in Habeas
Corpus Cases
1. Fifteen (15) days from notice of the judgment or
final order appealed from.
2. If a record on appeal is required, file notice of
appeal and record on appeal within thirty (30)
days from notice of the judgment or final order.
3. In HABEAS CORPUS cases, forty-eight (48)
hours from notice of judgment or final order
appealed from.
4. The period shall be interrupted by a timely
Motion for New Trial or Motion for
Reconsideration.
5. No motion for extension of time to file a Motion
for Reconsideration or Motion for New Trial shall
be allowed (same rule as MTC-RTC appeals),
except in cases pending with the Supreme
Court. (Rule 41, Section 3)
Period of Ordinary Appeal; Appeal in Habeas
Data Cases (Section 19 of A. M. No. 08-1-16-SC)
1. The period of appeal shall be five (5) working
days from the date of notice of the judgment or
final order.
2. Appeal shall be made directly to the Supreme
Court under Rule 45 where questions of fact or
of law or both may be raised.
Period of Ordinary Appeal; Appeal in Writ of
Amparo Cases (Section 19 of A.M. No. 07-9-12-
SC)
1. The period of appeal shall be five (5) working
days from the date of notice of the adverse
judgment.
2. Appeal shall be made directly to the Supreme
Court under Rule 45 where questions of fact or
of law or both may be raised.
General Rule: Perfection of appeal within the
reglementary period is jurisdictional.
Exception: When there has been extrinsic
fraud, accident, mistake or excusable
negligence (FAME), resort to Petition for Relief
from Judgment under Rule 38 may be had.
(Habaluyas v. Japson, G.R. No. 70895, 1986)
Appellate Court Docket and Other Lawful Fees
Within the period for taking an appeal, the
appellant shall pay to the Clerk of the Court which
rendered the judgment or final order appealed from,
the full amount of the appellate court docket and
other lawful fees.
Proof of payment shall be transmitted to appellate
court together with the original record or the record
on appeal, as the case may be. (Rule 41, Section 4)
Note: Please see notes on General Rule and
Exceptions with regard to Payment of Fees under
Rule 40 in the previous section of this reviewer.
Notice of Appeal
The notice of appeal must:
1. Indicate the parties to the appeal.
2. Specify judgment or final order or part thereof
appealed from.
3. Specify the court to which the appeal is being
taken; and
4. State the material dates showing the timeliness
of the appeal. (Rule 41, Section 5)
Record on Appeal
The Record on Appeal shall include:
1. Full names of all the parties to the
proceedings shall be stated in the caption
2. The judgment or final order from which the
appeal is taken.
3. In chronological order, copies of only such
pleadings, petitions, motions and all
interlocutory orders as are related to the
213
 appealed judgment or final order for the proper
understanding of the issues involved; and
4. Together with such data as will show that
the appeal was perfected on time (Material
Data Rule). (Rule 41, Section 6)
Approval of Record on Appeal
Upon filing of the record on appeal for approval
AND if no objection is filed by the appellee within
five (5) days from receipt of the copy thereof the
trial court (RTC) may:
1. Approve it as presented; OR
2. Upon its own motion or at the instance of the
appellee, may direct its amendment by the
inclusion of any omitted matters which are
deemed essential to the determination of the
issue of law or fact involved in the appeal. (Rule
41, Section 7)
If the trial court orders the amendment thereof, the
appellant shall redraft the record by including
therein, in their proper chronological sequence,
such additional matters as the court may have
directed him/her to incorporate, and shall thereupon
submit the redrafted record for approval, upon
notice to the appellee, in like matter as the original
draft.
A record on appeal does not have to be set for
hearing in the trial court by the appellant, as it is
deemed submitted for approval upon its filing and
the rule merely requires the adverse party to file any
objection thereto within five (5) days.
Joint Record on Appeal
Can be applied when both parties are appellants.
(Rule 41, Section 8)
Perfection of Appeal; Effect thereof
Upon the timely filing of a notice of appeal and the
payment of the corresponding docket and other
lawful fees, the appeal is deemed perfected as to
the appealing party (appellant).
In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the
time to appeal of the other parties.
In appeals by record on appeal, the court loses
jurisdiction only over the subject matter thereof
upon the approval of the records on appeal filed in
due time and the expiration of the time to appeal of
the other parties.
In either case, prior to the transmittal of the original
record or the record on appeal, the court may issue
orders for the protection and preservation of the
rights of the parties which do not involve any matter
litigated by the appeal, approve compromises,
permit appeals of indigent litigants, order execution
pending appeal in accordance with Section 2 of
Rule 39, and allow withdrawal of the appeal. (Rule
41, Section 9)
General Rule: A perfected appeal stays the
challenged judgment or final order; such judgment
or final order cannot yet be the subject of a motion
for execution.
Exception: If the Court of Appeals, the law, or the
Rules provide otherwise.
This is NOT applicable to civil cases under the Rule
on Summary Procedure which provides that the
decision of the RTC in civil cases governed by said
Rule, including forcible entry and unlawful detainer
cases; shall be immediately executory without
prejudice to a further appeal that may be taken
therefrom.
Duty of the Clerk of Court of the Lower Court
upon Perfection of Appeal
Within thirty (30) days after perfection of all the
appeals in accordance with the preceding section, it
shall be the duty of the clerk of court of the lower
court:
214
 a. To verify the correctness of the original
record or the record on appeal, as the case
may be, and to make a certification of its
correctness;
b. To verify the completeness of the records
that will be transmitted to the appellate court;
Transmittal
The branch clerk of court of the RTC shall transmit
to the appellate court the original record or the
approved record on appeal:

c. If found to be incomplete, to take such

measures as may be required to complete the
records, availing of the authority that he or the
court may exercise for this purpose; and 1. Within 30 days from the perfection of the
appeal.
2. With proof of payment of the appellate
d. To transmit the records to the appellate
court docket and other lawful fees.
court.
3. A certified true copy of the minutes of the
proceedings.
4. An order of approval.
5. A certificate of correctness.
6. Original documentary evidence; and
7. Original and three copies of the transcript.
(Rule 41, Section 12)
If the efforts to complete the records fail, he shall
indicate in his letter of transmittal the exhibits or
transcripts not included in the records being
transmitted to the appellate court, the reasons for
their non-transmittal, and the steps taken or that
could be taken to have them available.
The clerk of court shall furnish the parties with
copies of his letter of transmittal of the records to
the appellate court. (Rule 41, Section 10)

Transcript
Upon perfection of the appeal, the clerk shall
immediately direct stenographers concerned to
Dismissal of Appeal
attach to the record of the case:
PRIOR to the transmittal of the original record or the
1. 5 copies of the transcripts of the testimonial
record on the appeal to the appellate court, the trial
evidence referred to in the record on appeal.
court may, motu proprio or on motion, dismiss
2. Transcription of such testimonial evidence.
the appeal for having been taken out of time OR for
3. An index containing the names of the
non-payment of the docket and other lawful fees
witnesses and the pages where their
within the reglementary period. (Rule 41, Section
testimonies could be found; and
13)
4. List of exhibits and pages wherein they appear.
(Rule 41, Section 11)
The period to appeal is mandatory and
jurisdictional.

215
Failure to appeal on time makes the decision final 3. Furnish the Regional Trial Court and adverse
and executory and deprives the appellate court of party with a copy of the petition. (Rule 42,
jurisdiction. Section 1)

However, in a few instances, the court has allowed

due course to such appeals on strong and
compelling reasons of justice. (Note: This is
applicable to the Supreme Court only, NOT the trial
courts.)

Rule 41 Rule 42

2. PETITION FOR REVIEW FROM THE

REGIONAL TRIAL COURT TO THE COURT
OF APPEALS (Rule 42) Refers to regular Governs appeals from
appeals from the the decision of the
Regional Trial Court Regional Trial Court in
exercising original the exercise of its
jurisdiction appellate jurisdiction
(Case originally filed
with MTC)

How Appeal Taken Time for Filing

Requisites:
1. File a verified petition for review with the Court
of Appeals within 15 days from notice of the
decision or of the denial of Motion for
Reconsideration/Motion for New Trial
An appeal on pure Appeals to the Court of
questions of law cannot Appeals from the
be taken to the Court of Regional Trial Court
Appeals and such under this rule MAY be
improper appeal will be made on questions of
dismissed pursuant to fact or of law or on
a. The Court of Appeals may grant Section 2, Rule 50 of mixed questions of fact
an additional period of 15 days within the Rules of Court. and law
which to file the petition for review. No
further extension shall be granted except Note: An appeal taken
for the most compelling reason and in to either the Supreme
no case to exceed 15 days. Court or the Court of
Appeals by the wrong
or inappropriate mode
shall be dismissed. No
transfers of appeals
erroneously taken to the
Supreme Court or to the
2. Pay docket and lawful fees and deposit Court of Appeals to
P500.00 to the Clerk of Court of the Court of whichever of these
Appeals. Tribunals has

216
 Note: Before the Court of Appeals may grant the
appropriate appellate
15-day extension to file a petition for review,
jurisdiction will be
Sec. 1, Rule 42 of the Rules of Court requires
allowed; continued
the payment of the full amount of the docket and
ignorance or willful
other lawful fees and the deposit of the
disregard of the law on
necessary amount for costs before the
appeals will not be
expiration of the reglementary period. (Heirs of
tolerated. (SC Circular
Esplana vs. CA, G.R. No. 155758, 2008)
2-90, March 9, 1990)

3. Proof of service of the petition;

Form and Contents

File in 3 legible copies, with the original copy
intended for the court being indicated as such by
the petitioner. (per Efficient Use of Paper Rule, A.M.
No. 11-9-4-SC)
The Petition shall contain:
1. Full names of the parties, without impleading
the lower courts/judges thereof as petitioners or
respondents.
2. Specific material dates to show it was filed on
time.
3. A statement of the matters involved, the issues
raised, the specification or errors of fact or law,
or both, allegedly committed by the Regional
Trial Court, and the reasons or arguments
relied upon for the allowance of the appeal.
4. Clearly legible duplicate originals or true copies
of judgments of both lower courts, certified
correct by the RTC Clerk of Court.
5. Certificate of non-forum shopping. (Rule 42,
Section 2)
Note: The service of judgment serves as the
reckoning point to determine whether a decision
had been appealed within the reglementary
period or has already become final. (Mindanao
Terminal and Brokerage vs. CA, G.R. No.
163286, 2012);
Note: In Teh vs People, the Court of Appeals
correctly dismissed the petition for being
insufficient in form, not being accompanied by
duplicate original or certified true copies of the
documents and material parts of the record that
would support the allegations.  Moreover, there
was no written explanation why service of the
petition was not done personally. Teh vs.
People, G.R. No. 141180, 2005); and

The lower courts or judges that rendered the

judgment or final order complained of should not
be impleaded as parties. The same prohibition is
now provided in petitions for review on certiorari 4. Contents of and the documents which should
under Rule 45, since these are petitions for accompany the petition. (Rule 42, Section 3)
purposes of appeal and NOT petitions in original
actions.

Effect of Failure to Comply With Requirements

The failure of the petitioner to comply with any of
the following requirements shall be sufficient
ground for the dismissal thereof:
1. Payment of the docket and other lawful fees.
2. Deposit for costs.
Note: It is petitioner who knows best what
pleadings or material portions of the record of
the case would support the allegations in the
petition. Petitioner’s discretion in choosing the
documents to be attached to the petition is
however not unbridled. The CA has the duty to

217
 check the exercise of this discretion, to see to it
that the submission of supporting documents is
not merely perfunctory. The practical aspect of
this duty is to enable the CA to determine at the
earliest possible time the existence of prima
facie merit in the petition. Moreover, Section 3 of
Rule 42 of the Rules of Court provides that if
petitioner fails to comply with the submission of
"documents which should accompany the
petition," it "shall be sufficient ground for the
dismissal thereof." (Canton vs. City of Cebu,
G.R. No. 152898, 2007)
Note: In Quintin Lee vs. CA, the Court of
Appeals correctly dismissed petitioner's appeal
not only because he purportedly employed the
wrong mode of appeal. It likewise found that
petitioner failed to comply with the requirements
of Section 2(d), Rule 42 of the Rules. In his
petition before the appellate court, petitioner
attached only plain machine copies of the
certified photocopies of the assailed decisions of
the lower courts. Neither did he submit the
pleadings and other material portions of the
record to support his allegations. (Quintin Lee
vs. CA, G.R. No. 165918, 2008)
Purpose: To eliminate the causes of judicial
backlog and delay in light of the experience of the
appellate courts.
Action on the Petition
The Court of Appeals may:
1. Require the respondent to comment, not file a
motion to dismiss, within 10 days from notice,
or
2. Dismiss the petition if it finds it to be:
a. Patently without merit;
b. Prosecuted manifestly for delay; or
c. Questions raised are too insubstantial to
require consideration. (Rule 42, Section 4)
Contents of Comment
Requisites of the comment of the respondent:
1. File in 3 legible copies (per Efficient Use of
Paper Rule, A.M. No. 11-9-4-SC).
2. Accompanied by certified true copies of
material portions of records referred to.
3. State whether or not he/she accepts the
statement of matters involved in the petition.
4. Point out insufficiencies/inaccuracies as
he/she believes exist in petitioner’s statement
of matters involved but without repetition; and
5. State reasons why petition should not be
given due course.
A copy of the comment shall be served on the
petitioner. (Rule 42, Section 5)
Due course
If the Court of Appeals finds prima facie that the
lower court (RTC) committed an error of fact or
law that will warrant a reversal or modification of
the decision, it may give due course to the
petition. (Rule 42, Section 6)
Petition for review is not a matter of right but
discretionary on the Court of Appeals. It may only
give due course to the petition if it shows on its face
that the lower court has committed an error of fact
218
and/or law that will warrant reversal or modification b) Require the parties to submit their respective
of the decision or judgment sought to be reviewed. memoranda; or

2. Deny or dismiss the petition.

Elevation of Record
Whenever the Court of Appeals deems it
necessary, it may require the RTC to elevate the
original records of the case within 15 days. (Rule
42, Section 7)
Perfection of Appeal; Effect thereof
The appeal is deemed perfected as to the
petitioner upon the timely:

1. Filing of the petition for review; and

2. Payment of docket and lawful fees.
Records remain with the trial court because it MAY (Rule 42, Section 8)
still issue a writ of execution pending appeal and
also because in some cases (e.g., ejectment and
those of Summary Procedure), the judgments are
immediately executory.

A REJOINDER (to the reply) is no longer required

under AM No. 99-2-04-SC (15 March 1999).
The RTC loses jurisdiction over the case upon:

1. The perfection of the appeals; and

2. The expiration of the time to appeal of
the other parties.

Upon the Filing of the Reply, the Court Shall

Resolve Either to:
1. Give due course to the petition; and

However, before the Court of Appeals gives

due course to the petition, the Regional Trial
Court MAY still exercise residual powers (IAPOA):

a) Consider the case submitted for decision

based on the pleadings; or

219
1. Issue orders for the protection and
preservation of the rights of the parties which do
not involve any matter litigated by the appeal.
2. Approve compromises.
3. Permit appeals of indigent litigants.
4. Order execution pending appeal in
accordance with Sec. 2 of Rule 39; and
5. Allow withdrawal of the appeal.
General Rule: A perfected appeal stays the
challenged judgment or final order.
Exception: If the Court of Appeals, the law, or
the Rules provide otherwise.
This is NOT applicable to civil cases under the Rule
on Summary Procedure, which provides that the
decision of the RTC in civil cases governed by said
Rule, including forcible entry and unlawful detainer
cases. It shall be immediately executory without
prejudice to a further appeal that may be taken
therefrom.
Submission for Decision
If the petition is given due course, the Court of
Appeals (CA) may:
1. Set the case for oral argument. and/or
2. Require the parties to submit memoranda
within a period of 15 days from notice. (Rule 42,
Section 9)
No new issues may be raised by a party in the
Memorandum.
Issues raised by a party in previous pleadings but
not included in the Memorandum shall be deemed
waived or abandoned.
Being a summation of the parties’ previous
pleadings, the Memoranda alone may be
considered by the CA in deciding or resolving the
petition.
The case shall be deemed submitted for decision
upon the filing of the last pleading or memorandum
required by these Rules or by the CA itself.
j. APPEAL FROM JUDGMENTS AND
FINAL ORDERS OF THE COURT OF
APPEALS
Judgments, final orders or resolution of the Court of
Appeals can be raised on appeal to the Supreme
Court via Appeal by Certiorari under Rule 45 on
pure questions of law.
Appeal by Certiorari under Rule 45
A party desiring to appeal by certiorari from a
judgment, final order or resolution of the following
courts may file with the Supreme Court a verified
petition for review on certiorari:
220
 1. Court of Appeals. APPEAL BY CERTIORARI AS AN
2. Sandiganbayan. CERTIORARI ORIGINAL ACTION
3. Regional Trial Court. (RULE 45) (RULE 65)
4. Court of Tax Appeals (en banc).
5. Other courts, whenever authorized by law

Petition based on Petition raises the issue

questions of law only as to whether the lower
The petition may include an application for a writ of which the appellant court acted without or in
preliminary injunction or other provisional remedies desires the appellate excess of jurisdiction or
and shall raise only questions of law which must court to resolve with grave abuse of
be distinctly set forth. discretion

The petitioner may seek the same provisional

remedies by verified motion filed in the same
action or proceeding at any time during its
pendency. (As amended by A.M. No. 07-7-12 SC,
Dec. 12, 2007)

The appeal under this Rule contemplates that the Involves review of the May be directed against
RTC rendered the judgment or final order or judgment, award or an interlocutory order of
resolution acting in its original jurisdiction. final order on the merits the court prior to appeal
from the judgment or
If the RTC rendered the same in the exercise of its where there is no
appellate jurisdiction, the remedy is to file a appeal or any other
Petition for Review either under Rules 42 or 43. plain, speedy or
The appeal shall be taken to the Court of Appeals adequate remedy
even if only questions of law are raised by the
petitioner.

Although the term used in the second mode is

“Petition for Review,” just like in appeals from the
quasi-judicial agencies under Rule 43, it should not
be confused with the “Petition for Review on
Certiorari” under the third mode, which is a distinct Must be made within May be filed not later
procedure under Rule 45. the reglementary period than 60 days from
for appeal notice of the judgment,
Nor should the use of the word “Certiorari” in the order or resolution
latter be mistaken for the special civil action for sought to be assailed,
Certiorari in Rule 65, which is not a mode of appeal or 60 days from receipt
but is an original action. of denial of a motion for
reconsideration. Note
Certiorari as a Mode of Appeal (Rule 45) v. that, as a general rule,
Certiorari as an Original Special Civil Action (Rule before a party can file a
petition for certiorari
65) under Rule 65, he/she
must first file a motion
for reconsideration with
the lower court)

221
 The Supreme Court, in accordance with the liberal
Stays the judgment, Does not stay the
spirit pervading the Rules of Court and in the
award or order challenged proceeding
interest of justice, may decide to treat a petition for
appealed from unless a writ of
certiorari as having been filed under Rule 45,
preliminary injunction or
especially if it is filed within the reglementary
a temporary restraining
period of the same. (Delsan v. CA G.R. 112288,
order shall have been
1997);
issued by the higher
court
In the case of Cirtek, respondent indeed availed of
the wrong remedy of certiorari under Rule 65. Due,
however, to the nature of the case, one involving
workers’ wages and benefits, and the fact that
whether the petition was filed under Rule 65 or
appeal by certiorari under Rule 45 it was filed within
15 days (the reglementary period under Rule 45)
The petitioner and The parties are the from petitioner’s receipt of the resolution of the
respondent are the aggrieved party Court of Appeals’ Resolution denying its motion for
original parties to the (petitioner) against the reconsideration, the Court resolved to give it due
action, and the lower lower court or quasi- course. As Almelor v. RTC of Las Piñas, et al.
court or quasi-judicial judicial agency (public restates: Generally, an appeal taken either to the
agency is not to be respondent) and the Supreme Court or the CA by the wrong or
impleaded prevailing party in the inappropriate mode shall be dismissed. This is to
lower court (private prevent the party from benefiting from one’s neglect
respondent) and mistakes. However, like most rules, it carries
certain exceptions. After all, the ultimate purpose of
all rules of procedures is to achieve substantial
justice as expeditiously as possible. (Cirtek
Employees Labor Union vs. Cirtek Electronics, Inc.,
G.R. No. 190515, 2011)

The Supreme Court cannot tolerate the practice of

The prior filing of a A motion for categorizing a petition to be “both under Rule 65
motion for reconsideration is, as a and Rule 45, Rules of Court,” as the petition cannot
reconsideration is not general rule, a be subsumed simultaneously under Rule 45 and
required condition precedent. Rule 65, and neither may petitioners delegate upon
The purpose is to give the court the task of determining under which rule
the lower court an the petition should fall. Under Circular 2-90, wrong
opportunity to correct or inappropriate mode of appeal, merits an outright
itself dismissal. (Ybaňez v. CA, G.R. No. 117499, 1996)

A special civil action for certiorari under Rule 65 lies

only when there is no appeal or any plain, speedy
and adequate remedy in the ordinary course of law.
Thus, certiorari cannot be allowed when a party to a
case fails to appeal a judgment despite the
availability of that remedy. Certiorari is not a
The appellate court is in The higher court substitute for a lost appeal. (Indoyon vs. CA, G.R.
the exercise of its exercises original No. 193706, 2013) (N.B.: In this case, the Petition
appellate jurisdiction jurisdiction under its for Certiorari under Rule 65 was filed 35 days after
and power of review power of control and notice of resolution, by which time petitioner had
supervision over the therefore lost his appeal under Rule 45.)
proceeding of lower
courts

222
There are cases when certiorari may be allowed
despite the availability of appeal, such as: “(a) when
public welfare and the advancement of public policy
dictates; (b) when the broader interest of justice so
requires; (c) when the writs issued are null and void;
and (d) when the questioned order amounts to an
oppressive exercise of judicial authority. (Vda. de
Mendez vs. CA, G.R. No. 174937, 2012)
Exceptions under Jurisprudence:
The remedies of appeal and certiorari are mutually
exclusive and not alternative or successive.
Although it is true that the SC may treat a petition
for certiorari (under Rule 65) as having been filed
under Rule 45 to serve the higher interest of justice,
it cannot be availed of when the petition is filed well
beyond the reglementary period for filing a petition
for review (under Rule 45) and without offering any
reason therefor. (Banco Filipino v. CA, G.R. No.
132703, 2000)
To be sure, the distinctions between Rules 45 and
65 are far and wide. However, the most apparent is
that errors of jurisdiction are best reviewed in a
special civil action for certiorari under Rule 65, while
errors of judgment can only be corrected by appeal
in a petition for review under Rule 45. This Court,
however, in accordance with the liberal spirit which
pervades the Rules of Court and in the interest of
justice may treat a petition for certiorari as having
been filed under Rule 45, more so if the same was
filed within the reglementary period for filing a
petition for review. (Nuñez v. GSIS Family Bank,
G.R. No. 163988, 2005)
General Rule: Only QUESTIONS OF LAW may be
raised in a petition for review under Rule 45 of the
Rules of Court.
Exceptions: QUESTIONS OF LAW AND FACT
may be determined.
Exceptions under the SC Circulars:
1. Appeals from Habeas Data cases
2. Appeals from Amparo cases
3. Appeals from Kalikasan cases
(a) When the factual findings of the Court
of Appeals and the trial court are
contradictory;
(b) When the conclusion is a finding
grounded entirely on speculation, surmises,
or conjectures;
(c) When the inference made by the Court
of Appeals from its findings of fact is
manifestly mistaken, absurd, or impossible;
(d) when there is a grave abuse of
discretion in the appreciation of facts;
(e) when the Appellate Court, in making
its findings, went beyond the issues of the
case and such findings are contrary to the
admissions of both appellant and appellee;
(f) When the judgment of the Court of
Appeals is premised on a misapprehension
of facts;     
(g) When the Court of Appeals failed to
notice certain relevant facts which, if
properly considered, would justify a
different conclusion;  
(h) When the findings of fact are
themselves conflicting;
(i) When the findings of fact are
conclusions without citation of the specific
evidence on which they are based; and
(h) When the findings of fact of the Court
of Appeals are premised on the absence of
evidence but such findings are contradicted
223
 by the evidence on record. (Local Superior 1.
vs. Jody King, G.R. No. 141715, 2005)
2.
Time for filing; exceptions; extension
General Rule: The petition shall be filed within 15
days from the notice of the judgment appealed
from, or of the denial of the petitioner’s motion for
new trial or reconsideration filed in due time after
notice of the judgment.
Exceptions:
1. Writ of Amparo – 5 working days
2. Writ of Habeas Data – 5 working
days
Within the fifteen (15) day period, the petitioner
may, for good cause, file a motion for extension
of time to file his/her petition for review on
certiorari. The petitioner must submit the requisite
proof of service of such motion on the respondents,
pay the docket and other lawful fees in full, as well
as deposit the costs of suit.
The Supreme Court may, for justifiable reasons,
grant an extension of 30 days within which to file
the petition, provided the following requisites
concur:
A motion duly filed and served (within the
original 15-day period); and
Full payment of the docket and other lawful
fees and the deposit for costs (within the original
15-day period). (Rule 45, Section 2)
Docket and other lawful fees; proof of service of
the petition
Unless he/she has theretofore done so, the
petitioner shall pay the corresponding docket and
other lawful fees to the clerk of court of the
Supreme Court and deposit the amount of P500.00
for costs at the time of the filing of the petition. (Rule
45, Section 3)
The phrase “unless he has theretofore done so”
refers to the situation in the next preceding section
wherein a motion for extension of time to file the
petition for review was filed, in which case the
petitioner had already paid the docket and other
lawful fees and made the deposit for costs as
requisites therefore.
Although a copy of the petition is served upon the
lower court concerned, it is only for the purpose of
giving notice that its judgment should not be
entered since it is not yet executory because of the
pending petition for review thereof. The lower
court does not become a party to the case since
Rule 45 provides a mode of appeal.
Proof of service of a copy thereof on the lower court
concerned AND on the adverse party shall be
submitted together with the petition.
Contents of petition
File in 11 copies for the Supreme Court en banc
and 5 copies for the SC division (per Efficient Use
of Paper Rule, A.M. No. 11-9-4-SC), with the
original intended for the court being indicated as
such by the petitioner.
The Verified Petition shall contain:
1. Full names of the appealing party as the
petitioner and the adverse party as respondent,
without impleading the lower courts/judges
thereof either as petitioners or respondents.
224
2. Material dates showing:
a. When notice of the judgment or
final order or resolution subject thereof was
received.
b. When a motion for new trial or
reconsideration, if any, was filed; and
c. When notice of the denial thereof
was received.
3. A statement of the matters involved and the
reasons or arguments relied on for the
allowance of the petition.
4. Clearly legible duplicate original, or a certified
true copy of the judgment or final order or
resolution certified by the clerk of court of the
court a quo and the requisite number of plain
copies thereof, and such material portions of
the record as would support the petition.
5. Certificate of non-forum shopping. (Rule 45,
Section 4)
Rule 45, Section 4 of the Rules of Court indeed
requires the attachment to the petition for review on
certiorari “such material portions of the record as
would support the petition.” However, such a
requirement was not meant to be an ironclad rule
such that the failure to follow the same would merit
the outright dismissal of the petition. In accordance
with Section 7 of Rule 45, “the Supreme Court may
require or allow the filing of such pleadings, briefs,
memoranda or documents as it may deem
necessary within such periods and under such
conditions as it may consider appropriate.” More
importantly, Section 8 of Rule 45 declares that “if
the petition is given due course, the Supreme Court
may require the elevation of the complete record of
the case or specified parts thereof within fifteen (15)
days from notice.” This pronouncement is likewise
in keeping with the doctrine that procedural rules
should be liberally construed in order to promote
their objective and assist the parties in obtaining
just, speedy, and inexpensive determination of
every action or proceeding. (F.A.T. Kee Computer
Systems, Inc. v. Online Networks International, Inc.,
G.R. No. 171238, 2011)
Dismissal or denial of petition
The failure of the petitioner to comply with any of
the following requirements shall be sufficient
ground for the dismissal thereof:
1. Payment of the docket and other lawful fees.
2. Deposit for costs.
3. Proof of service of the petition; and
4. Contents of and the documents which should
accompany the petition.
The Supreme Court may, on its own initiative, deny
the petition on the following grounds:
1. The appeal is without merit.
2. It is prosecuted manifestly for delay; or
3. The questions raised therein are too
unsubstantial to require consideration. (Rule
45, Section 5)
Review discretionary
A review is not a matter of right, but of sound
judicial discretion and will be granted only when
there are special and important reasons thereof.
(Rule 45, Section 6)
The following, while neither controlling nor fully
measuring the court’s discretion, indicate the
character of the reasons which will be considered:
1. When the court a quo (the court “from which”)
has decided a question of substance, not
theretofore determined by the Supreme Court,
or has decided it in a way probably not in
accord with law or with the applicable decision
of the Supreme Court; or
2. When the court a quo has so far departed from
the accepted and usual course of judicial
proceedings, or so far sanctioned such
departure by a lower court, as to call for an
exercise of the power of supervision.
Pleadings and documents that may be required;
sanctions
For the purposes of determining whether the
petition should be dismissed or denied pursuant to
Section 5 of this rule, or where the petition is given
due course under Section 8 hereof, the Supreme
Court may:
1. Require or allow the filing of pleadings,
briefs, memoranda or documents as it may deem
necessary within such periods ad under such
conditions as it may consider appropriate.
2. Impose sanctions in the following cases:
225
 a. Non-filing of such pleadings or
documents.
b. Unauthorized filing of such
pleadings or documents; or
c. Non-compliance with the
conditions therefor. (Rule 45,
Section 7)
k. APPEAL FROM JUDGMENTS AND
FINAL ORDERS OF THE COURT OF TAX
APPEALS

Due course; elevation of records

If the petition is given due course, the Supreme
Court may require the elevation of the complete
record of the case or parts thereof within 15 days
from notice. (Rule 45, Section 8)

Rule applicable to both civil and criminal cases

The mode of appeal prescribed in this Rule shall be
applicable to both civil and criminal cases, except
in criminal cases where the penalty imposed is:
A party adversely affected by a resolution of a
Division of the Court of Tax Appeals on a motion
for reconsideration or new trial may file a petition for
review with the Court of Tax Appeals en banc.

A party adversely affected by a decision or ruling of

the Court of Tax Appeals en banc may file with
1. Death. the Supreme Court a verified petition for review on
2. Reclusion perpetua; or certiorari pursuant to Rule 45.
3. Life imprisonment. (Rule 45, Section 9)

l. REVIEW OF FINAL JUDGMENTS OR

If only to ensure utmost circumspection before the FINAL ORDERS OF THE COMELEC EN
penalty of death, reclusion perpetua or life BANC
imprisonment is imposed, the Court now deems it
wise and compelling to provide in these cases a
review by the Court of Appeals before the case
is elevated to the Supreme Court. If the Court of
Appeals should affirm the penalty of death,
reclusion perpetua or life imprisonment, it could
then render judgment imposing the corresponding
penalty as the circumstances so warrant, refrain A judgment, resolution or final order of the
from entering the judgment and elevate the entire Commission on Elections may be brought by the
records of the case to the SC for its final disposition. aggrieved party to the Supreme Court on certiorari
(People v. Mateo, G.R. Nos. 147678-87, 2004) under Rule 64.

226
 Appeals on certiorari under Rule 65. (St. Martin
Funeral Home v. NLRC, G.R. No. 130866, 1998)

SPECIAL RULES when appealing from

judgments and final orders of CSC, DOJ,
NLRC, Office of the Ombudsman, and
m. REVIEW OF FINAL JUDGMENTS OR Secretary of Labor
FINAL ORDERS OF THE OMBDUSMAN

Judgment or Final REMEDY

Orders of:

The Court of Appeals, under Rule 43, has

jurisdiction over orders, directives and decisions of CIVIL SERVICE General Rule:
the Office of the Ombudsman in administrative COMMISSION (CSC) Rule 43 with the CA
cases only. It cannot therefore review orders,
directives or decisions of the Office of the Note: The
Ombudsman in criminal and non-administrative petitioner’s failure to
cases. For criminal cases, the ruling of the state the date of
Ombudsman should be elevated to the Supreme receipt of the copy of
Court by way of Rule 65. (Indoyon vs. CA, G.R. No. the October 10, 2011
193706, 2013); (Tirol vs. Sandiganbayan, G. R. No. CSC decision is not
135913, 1999); (Fabian vs. Desierto, G.R. No. fatal to her case
129742, 1998) since the dates are
evident from the
records. Besides, we
have ruled that the
more important
material date which
must be duly alleged
in the petition is the
n. REVIEW OF FINAL JUDGMENTS OR date of receipt of the
FINAL ORDERS OF THE NLRC resolution of denial of
the motion for
reconsideration,
which the petitioner
has duly complied
with. As to the failure
to state the notary
public’s office
Judgments and final orders or resolutions of the address, the
National Labor Relations Commission are now omission was
reviewable in the first instance, by the Court of

227
 rectified with the Decisions/orders/
attachment in the resolutions of the
motion for Secretary of Justice on
reconsideration of preliminary investigations
the verification and involving an offense
certification of non- punishable by:
forum shopping and
of the affidavit of
service, with the
notary public’s office • Appeal to
address. (Barra vs. OP, then Rule
CSC, G.R. No. 43 with the CA
205250, 2013)
• Reclusion
Exceptions: perpetua to death
Rule 65 with the CA

(a) When public

welfare and the
advancement of
public policy
dictates; • Rule 65 with
(b) When the the CA (Elma vs.
• Less than Jacobi, G.R. No.
broader interest
155996, 2012)
of justice so reclusion perpetua to
requires; death
(c) When the
writs issued are
null and void; or
(d) When the
questioned order
amounts to an
oppressive NATIONAL LABOR MR with the NLRC,
exercise of RELATIONS then Rule 65 with the
judicial authority. COMMISSION (NLRC) CA. (St. Martin
(DepEd vs. Funeral Home v.
Cunanan, G.R. NLRC, G.R. No.
No. 169013, 130866, 1998)
2008)

OFFICE OF THE
DEPARTMENT OF OMBUDSMAN
JUSTICE (DOJ)
General Rule:

228
 Rule 43 with the CA Court (China Banking
(formerly SEC) Corp. vs. Cebu
Exception: Printing, G.R. No.
Rule 65 with the CA 172880, 2010)
if determination of
probable cause is
tainted with grave
• Administrative abuse of discretion.
disciplinary cases (Fabian vs. Desierto,
G.R. No. 129742,
1998)

Rule 65 with the SC.

(Tirol vs.
Sandiganbayan, G.
R. No. 135913,
1999)
o. REVIEW OF FINAL JUDGMENTS OR
FINAL ORDERS OF QUASI-JUDICIAL
AGENCIES (Rule 43)

Rule 43 shall apply to:

• Criminal cases

1. Appeals from judgments or final orders of

the Court of Tax Appeals
SECRETARY OF LABOR MR with the
(even if acting as Secretary of Labor,
voluntary arbitrator) then Rule 65 with the
CA. (Philtranco v.
Philtranco Workers
Union, G.R. No.
180962 , 2014)

2. Appeals from awards, judgments, final

orders, resolutions of or authorized by any
RTC as a Commercial Rule 43 with the CA

229
 quasi-judicial agency in the exercise of i. Trademarks and Technology
its quasi-judicial functions: Transfer.
j. National Electrification
Administration.
k. Energy Regulatory Board.
l. National Telecommunications
Commission.
m. Dept. of Agrarian Reform under
a. Civil Service Commission (see R.A. No. 6657.
Special Rules above)
b. Central Board of Assessment
Appeals.
c. Securities and Exchange
Commission.
d. Office of the President.

Note: Sec. 1 of Rule XIV of the DARAB Revised

Rules of Procedure dwells on how appeals to
the DARAB Board from the decisions, resolutions or
final orders of the Adjudicator are to be taken.  How
petitioners could have been misled to file their
appeal from the DARAB’s Decision to the Court of
Note: The parties may file a motion for Appeals via certiorari escapes comprehension. (Po
reconsideration of the order, ruling, or decision of vs. Mutia, G.R. No. 173329, 2009)
the OP. Since the OP is essentially an
administrative agency exercising quasi-judicial
functions, its decisions or resolutions may be
appealed to the CA through a petition for review
under Rule 43 of the Rules of Court. Rule 65 bars
its use as a mode of review when an appeal or any
other remedy at law is available (subject to
exceptions). It is absolutely incorrect to claim that n. Government Service Insurance
Rule 43 does not allow an immediate remedy if that System.
had been the result desired. Section 12 of Rule 43 o. Employees Compensation
expressly allows the CA to order a stay of execution Commission.
upon such terms as are just. Separately from p. Agricultural Invention Board.
Section 12, Rule 43 is Rule 58 on injunction as a q. Insurance Commission.
provisional remedy that could have been used, with r. Philippine Atomic Energy
proper supporting justification, to stay the Commission.
implementation of the OP decision. (Philippine s. Board of Investments.
Basketball Association vs. Gaite, G.R. No. 170312, t. Construction Industry Arbitration
2009) Commission; and
u. Voluntary arbitrators authorized
by law.

e. Land Registration Authority.

f. Social Security Commission.
g. Civil Aeronautics Board. Note: The decision or award of the voluntary
h. Bureau of Patents. arbitrator or panel of arbitrators should likewise be

230
appealable to the Court of Appeals, in line with the
procedure outlines in Revised Administrative
Circular No. 1-95 (now embodied in Rule 43 of the
1997 Rules of Civil Procedure), just like those of the
quasi-judicial agencies, boards and commissions
enumerated therein, and consistent with the original
purpose to provide a uniform procedure for the
appellate review of adjudications of all quasi-judicial
entities. On some occasions, rules of procedure
may be relaxed and on that basis the Court of
Appeals could have treated the petition for certiorari
as a petition for review under Rule 43. (N.B.: In this
case, the petition was filed beyond the reglementary
period for filing a petition for review under Rule 43.)
It is elementary in remedial law that the use of an
erroneous mode of appeal is a cause for dismissal
of the petition for certiorari and it has been
repeatedly stressed that a petition for certiorari is
not a substitute for a lost appeal. (Samahan ng mga
Manggagawa sa Hyatt vs. Bacungan, G.R. No.
149050, 2009)
The enumeration of quasi-judicial agencies is NOT
exclusive.
The Office of the Prosecutor is NOT a quasi-
judicial body and its action approving the filing of an
information is not appealable to the Court of
Appeals under Rule 43.
An ERROR OF JUDGMENT is one which the court
may commit in the exercise of its jurisdiction, and
which error is reviewable only by an appeal (Rule
43/42). (Fortich v. Corona G.R. No. 131457, 1998)
It may be an error in appreciation of facts or
interpretation of law.
An ERROR OF JURISDICTION is one where the
act complained of was issued by the court, officer or
a quasi-judicial body without or in excess of
jurisdiction, or with grave abuse of discretion which
is tantamount to lack or in excess of jurisdiction.
This error is correctable only by the extraordinary
writ of certiorari (Rule 65). (Fortich v. Corona, G.R.
No. 131457, 1998)
Appeals from awards, judgments, final orders or
resolutions of any quasi-judicial agency exercising
quasi-judicial functions, including the Office of the
President, may be taken to the Court of Appeals by
filing a verified petition for review within 15 days
from notice of the said judgment, final order or
resolution, whether the appeal involves questions of
fact, of law, or mixed questions of fact and law.
General Rule:
Cases not covered
This Rule shall not apply to judgments or final
orders issued under the Labor Code of the
Philippines. (Rule 43, Section 2)
Exception:
Judgments and final orders or resolutions of the
National Labor Relations Commission are now
reviewable in the first instance, by the Court of
Appeals on certiorari under Rule 65, but those of
the Employees Compensation Commission should
be brought to the CA through a petition for review
under this Rule. (St. Martin Funeral Homes v.
NLRC, G.R. No. 130866, 1998)
Special rules of procedure have also been adopted
for cases formerly within the jurisdiction and
adjudicatory processes of the Securities and
Exchange Commission. (See Regalado 10th ed. P.
573) The Supreme Court issued A.M. No. 04-9-07-
SC as a clarification on the proper mode of appeal
of cases which were formerly under the jurisdiction
of the Securities and Exchange Commission, such
as those cases involving corporate rehabilitation.
Now, there is no more need to file a notice of
appeal and record on appeal. An appeal may now
be perfected by filing a petition for review within
fifteen (15) days from notice of the decision or final
order of the trial court, directly to the CA under Rule
43 of the Rules of Court. (China Banking Corp. vs.
Cebu Printing, G.R. No. 172880, 2010)
Where to appeal
An appeal under this Rule may be taken to the
Court of Appeals within the period and in the
manner herein provided, whether the appeal
involves questions of fact, of law, or mixed
questions of fact and law. (Rule 43, Section 3)
This is another instance where an appellate review
solely on a question of law may be brought to the
Court of Appeals instead of the Supreme Court.
The same procedure obtains in appeals from the
Regional Trial Court where it decided the case in
the exercise of its appellate jurisdiction as regulated
by Rule 42.
The two (2) EXCEPTIONS to the general rule that
appeals on pure questions of law are brought to the
231
Supreme Court (Section 5[2][e], Art VIII) are Rules Efficient Use of Paper Rule, A.M.
42 and 43. No. 11-9-4-SC).
b. Attach proof of service of a copy
Period of appeal thereof on the adverse party and
Within 15 days from: on the court or agency a quo.
Notice of the award, judgment, final order or
resolution; or
Date of last publication, if publication is required by
law for its effectivity; or
Denial of petitioner’s Motion for New Trial or Motion
for Reconsideration duly filed in accordance
with the governing law of the court or agency a 2. Pay to the Clerk of Court of the Court of
quo. (Rule 43, Section 4) Appeals the docket and other lawful fees
and deposit P500.00 for costs.
Only ONE (1) MR shall be allowed.

Note: Rule 43, Section 4 specifically allows only

one motion for reconsideration to an appealing
party; as such, the reckoning of the fifteen (15)-day
period to perfect the appeal starts from the receipt
of the resolution denying the motion for a. Exemption from payment of
reconsideration. (Yinlu Bicol Mining Corporation v. docket and lawful fees may be
Trans-Asia Oil and Energy Development granted by the Court of Appeals
Corporation, G.R. No. 207942, 2015) upon a verified motion setting
forth the valid grounds therefor.
Upon proper motion and the payment of the full b. If the Court of Appeals denies the
amount of the docket fee before the expiration of motion, petitioner shall pay the
the reglementary period, the Court of Appeals may docket and other lawful fees
grant an additional period of fifteen (15) days within 15 days from notice of
only within which to file the petition for review. denial. (Rule 43, Section 5)

No further extension shall be granted except for the

most compelling reason and in no case to exceed
15 days.

How appeal taken

REQUISITES:

1. A verified petition for review: Regional Trial Court Quasi-Judicial

as Appellate Court Agencies
(Rule 42) (Rule 43)

a. File with the Court of Appeals in

seven 3 legible copies (per

232
 petition should be certified true copies or duplicate
Decision is stayed by Decision is immediately
originals. What is mandatory is to attach the
an appeal executory, not stayed
clearly legible duplicate originals or certified true
by an appeal
copies of the judgment or final orders of the lower
courts. (Jaro v. CA, G.R. No. 127536, 2002)

Effect of failure to comply with requirements

Failure of petitioner to comply with any of the
following requirements shall be sufficient ground
for the dismissal thereof:
Factual findings not Factual findings are
conclusive upon the conclusive upon the
Court of Appeals Court of appeals if
supported by
substantial evidence

1. Payment of the docket and other lawful

fees.
2. Deposit for costs.
3. Proof of service of the petition; and
4. Contents of and the documents which
should accompany the petition. (Rule 43,
Section 7)
Contents of the petition
The petition for review shall contain:

1. Full names of the parties, without

impleading the court/agencies either as
petitioners or respondents.
2. Concise statement of the facts and issues
involved and the grounds relied upon for
review. Action on the petition
3. Clearly legible duplicate original or a The Court of Appeals may:
certified true copy of the award, judgment,
final order or resolution appealed from,
together with:
4. Certified true copies of such material
portions of the record referred to therein.
5. Other supporting papers;
6. Certificate of non-forum shopping. 1. Require the respondent to file a comment
7. Material dates to show it was filed within on the petition, not a motion to dismiss,
the period fixed therein. (Rule 43, Section within 10 days from notice; or
6) 2. Dismiss the petition if it finds it to be:

Sec. 6 of Rule 43 does not require that all of the

supporting papers or annexes accompanying the

233
 a. Patently without merit.
b. Prosecuted manifestly for delay; Due course
or
c. The questions raised therein are
too unsubstantial to require
consideration. (Rule 43, Section
8)

If from the records the Court of Appeals finds

Contents of comment
Requisites of the comment of the respondent:
prima facie that the court or agency committed
errors of fact or law that would warrant a reversal
or modification of the decision sought to be
reviewed, it may give due course to the petition.
Otherwise, it shall dismiss the same.
The findings of fact of the court or agency
concerned, when supported by substantial
evidence, shall be binding on the Court of
Appeals. (Rule 43, Section 10)

1. File in 3 legible copies (per Efficient Use of

Paper Rule, A.M. No. 11-9-4-SC).
2. Accompanied by clearly legible certified
true copies of such material portions of the
record referred to therein together with the Transmittal of record
supporting papers.
3. Point out insufficiencies or inaccuracies in
petitioner’s statement of facts and issues.
4. State the reasons why the petition should
be denied or dismissed; and
5. File within 10 days from notice. (Rule 43,
Section 9) Within 15 days from notice that the petition has
been given due course, the Court of Appeals may
require the court or agency concerned to transmit
the record of the proceeding under review.

The record to be transmitted may be abridged by

the agreement of all parties to the proceeding.

A copy thereof shall be served on the petitioner and The Court of Appeals may require or permit the
proof of such service shall be filed with the Court of subsequent correction of or addition to the record.
Appeals. (Rule 43, Section 11)

The appellate court may also require the filing of a

reply, but further submissions are governed by the
resolution in A.M. No. 99-2-04.

The appeal shall not stay the award, final order, or

resolution sought to be reviewed UNLESS the Court
of Appeals shall direct otherwise upon such terms
as it may deem just.

234
Effect of appeal
General Rule: The appeal shall not stay the
award, final order, or resolution sought to be
reviewed
Exception: When the Court of Appeals shall direct
otherwise upon such terms as it may deem just.
(Rule 43, Section 12)
Submission for decision
If the petition is given due course, the Court of
Appeals may:
Set the case for oral argument; and/or
Require the parties to submit memoranda within 15
days from notice.
The case shall be deemed submitted for decision
upon the filing of the last pleading or memorandum
required by these Rules or by the Court of Appeals.
(Rule 43, Section 13)
3. RELIEF FROM JUDGMENTS OR
FINAL ORDERS AND RESOLUTIONS
(Rule 38)
a. GROUNDS FOR AVAILING THE REMEDY
A Petition for Relief may be filed based on the
following grounds:
1. When a judgment or final order is
entered into, or any other proceeding is
thereafter taken against the petitioner in
any court through fraud, accident, mistake
or inexcusable negligence; or
2. When the petitioner has been prevented
from taking an appeal by fraud, accident,
mistake or inexcusable negligence.
Who May File
Petition for Relief from judgment is a remedy
available ONLY to those PARTIES in the case.
This relief is only allowed in exceptional cases when
there is NO OTHER AVAILABLE ADEQUATE
REMEDY. Thus, when a party has other available
remedies and he/she was not prevented by fraud,
accident, mistake or excusable negligence from
filing such motion or taking such appeal, such party
CANNOT avail of this remedy.
A party who has filed a motion for new trial but
which was denied, CANNOT file a petition for relief.
These two remedies are to be EXCLUSIVE of each
other. The remedy is to appeal from the judgment.
(Francisco v. Puno, 108 SCRA 427, G.R. No. L-
55694, 1981)
Note: “any other proceeding taken thereafter” may
include order of execution. (Cayetano v. Ceguerra,
G.R. No. L-18831, 1965)
Where to File
It shall be filed in such court and in the same case
from which the petition arose. (Redena v. CA, G.R.
No. 146611, 2007)
Relief Sought
It shall pray that the judgment, order or proceedings
be set aside OR that the appeal be given due
course.
A petition for relief from judgment is applicable in
special civil actions and all kinds of special
proceedings, such as land registration, intestate
settlement, and guardianship proceedings.
Relief from judgment is NOT authorized in summary
proceedings. (Section 19 Revised Rules on
Summary Procedures)
A petition for relief is not a remedy available for
judgments, final orders, and other proceedings in
the Supreme Court. The phrase “any court” that is
referred to in Rule 38 are Metropolitan or Municipal
or Regional Trial Courts. (Sps. Mesina vs. Meer,
G.R. No. 146845, 2002)
235
 NEW TRIAL OR PETITION FOR If denied, the order of If denied, the order of
RECONSIDERATION RELIEF (RULE 38) denial is not denial is not
(RULE 37) appealable. The appealable. The
remedy is to appeal remedy is a special civil
from the judgment. action under Rule 65.

Available before Available after

judgment becomes final judgment becomes final
and executory. and executor. Legal remedy Equitable remedy

Applies to judgments Applies to judgments, Motion need not be Petition must be

or final orders only. final orders and other verified. verified.
proceedings.

Grounds: Grounds: MODES OF ATTACKING FINAL AND

FAME EXECUTORY JUDGMENTS

FAME; and
Newly discovered
evidence. MODE GROUND

Filed within the time to Filed within 60 days Petition for Relief When the judgment has
appeal. from knowledge of the under Rule 38 been taken against the
judgment and within 6 party through FAME
months from entry of
judgment.

236
 Action for Extrinsic fraud, lack of
annulment of jurisdiction, denial of
judgment under due process
Rule 47

The petition shall be filed within sixty (60) days after

the petitioner learns of the judgment, final order or
proceeding, and NOT more than six (6) months
after such judgment or final order was entered, or
Direct action, as Certiorari – when there such proceeding was taken. (Rule 38, Section 3)
certiorari, OR is grave abuse of
collateral attack discretion amounting to Both periods are NOT extendible and never
under Rule 65 lack or excess of interrupted. These two periods must CONCUR.
jurisdiction. A (Quelnan v. VHF Philippines, G.R. No. 138500,
challenged judgment, 2005)
void upon its face, can
be the subject of a Note: The alternative phrase “or such proceeding
collateral attack. was taken” in Sec. 3, Rule 38 could be taken to
mean other proceedings which are NOT to be
entered, such as a writ of execution and an order
approving a compromise agreement. In such
cases, the period must have to commence from the
date of occurrence because entry is either
unnecessary or inconsequential. [Feria and Noche,
Civil Procedure Annotated, Vol. 2, 2013 Ed., p. 120,
(Feria and Noche, Civil Procedure Annotated, Vol. citing Dirige v. Binaraya, 17 SCRA 840 (1996)]
2, 2013 Ed., p. 109)
Petition for relief from a judgment based on a
Petition for Relief from Denial of Appeal compromise must be filed not later than 6 months
When a party, by FAME, has been prevented from from the date it was rendered (not date of entry),
taking an appeal, he/she may file a petition in the since such judgment becomes final and executory
court which rendered the judgment or final order immediately. (Republic v. Estenzo, 25 SCRA 122,
and in the same case praying that the appeal be 1945)
given due course.
Note: A motion to dismiss the petition for relief may
Under this section, the petition for relief should be be filed on the ground of lack of jurisdiction, when
directed against the order preventing the perfection the latter is filed beyond the reglamentary period.
of the appeal, and NOT against the judgment on the (Pacific Importing v. Tinio, 85 PHIL 239, 1949)
merits. [Feria and Noche, Civil Procedure
Annotated, Vol. 2, 2013 Ed., p. 112, citing
Bracamonte and Calderon, 92 PHIL 186 (952) and
Rafanan v. Rafanan, 98 PHIL 162 (1955)]

c. CONTENTS OF PETITION

b. TIME FOR FILING PETITION

237

a. The petition must be verified;
b. It must be accompanied with affidavits
showing the grounds relied upon; and
c. The facts constituting the petitioner’s
good and substantial cause of action or
defense (AFFIDAVIT OF MERIT).
Note: A separate affidavit is NOT necessary if such
facts are alleged in the verified petition. [Feria and
Noche, Civil Procedure Annotated, Vol. 2, 2013 Ed.,
p. 117, citing Fabar Incorporated, 79 SCRA 638
(1997), and Samonte v. S.F. Naguiat, 75 PHIL 608
(1945)]
Order to File Answer
If the petition is sufficient in form and substance, to
justify relief, the court in which it is filed, shall issue
an order requiring the adverse parties to answer
the same within fifteen (15) days thereof. The court
should NOT issue summons. (Rule 38, Section 4)
Note: If the petition is insufficient, as for example,
no affidavit of merit is attached, the court may
dismiss the petition outright. (Omandam v. Director
of Lands, 95 PHIL 450, 1954)
Failure to file answer does not warrant declaration
of default.
Preliminary Injunction Pending Proceedings
Because a final and executory judgment is the
subject of a petition for relief, the judgment may be
subject to execution. A person who files a petition
under Rule 38 may file a preliminary injunction to
preserve the rights of the parties upon filing of a
bond.
The bond is conditioned upon the payment to the
adverse party of all damages and costs that may be
awarded to such adverse party by reason of the
issuance of the preliminary injunction.
Such injunction shall not discharge any lien which
the adverse party may have acquired upon the
property of the petitioner. (Rule 38, Section 5)
Proceedings after the Answer is Filed
After the filing of the answer or the expiration of the
period to file the answer, the court shall hear the
petition.
Thereafter, the court may either:
Dismiss the petition if it finds that the
allegations thereof are not true; or
Set aside the judgment or final order or other
proceeding if it finds the allegations to be true.
The case shall then stand as if such judgment,
final order or other proceeding had never been
rendered, issued, or taken. The court shall
hear and determine the case as if a timely
motion for a new trial or reconsideration had
been granted by it. (Rule 38, Section 6)
Instances when trial on the merits is NOT
necessary when the relief sought may be:
The allowance of an appeal after the expiration of
the reglamentary period.
The staying of immediate execution despite failure
to pay or deposit the rents due to FAME.
IMPORTANT: An order GRANTING the petition for
relief is interlocutory hence not immediately
appealable. However, certiorari lies if there is grave
abuse of discretion or lack/excess of jurisdiction.
An order DENYING the petition for relief is now
subject only to certiorari under Rule 65, as provided
in Section 1(b) of Rule 41.
238
Procedure Where the Denial of an Appeal is Set
Aside
The lower court shall be required to give due course
to the appeal and to elevate the record of the
appealed case as if a timely and proper appeal had
been made. (Rule 38, Section 7)

4. ANNULMENT OF JUDMENTS AND 1. Extrinsic fraud (Rule 47, Section 2)

FINAL ORDERS AND RESOLUTIONS
(Rule 47)
Annulment of Judgment
A remedy in law independent of the case where the
judgment sought to be annulled was rendered.
Consequently, an action for annulment of judgment
may be availed of even if the judgment to be
annulled had already been fully executed or
implemented. (Bulawan v. Aquende, G.R. No.
182819, 2011)
Coverage
This Rule shall govern the annulment by the Court
of Appeals of judgments or final orders and
resolutions in civil actions of Regional Trial Courts
for which the ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies are
no longer available through no fault of the
petitioner. (Rule 47, Section 1)
The purpose is to set aside a final and executory
judgment, so that there would be a renewal of
litigation.
This remedy is NOT available to decisions of quasi-
judicial bodies. It is only applicable to the
annulment of judgments or final orders of a
Municipal Trial Court by the Regional Trial Court or
the annulment of the decisions of Regional Trial
Court by the Court of Appeal.
One that prevents a party from having a trial or from
presenting his/her entire case to the court, or where
it operates upon matters pertaining not to the
judgment itself but to the manner in which it is
procured.
Extrinsic Fraud exists when there is a fraudulent act
committed by a prevailing party outside of the trial
of the case, where the defeated party was
prevented from presenting fully his/her side of the
case by deception practiced on him/her by the
prevailing party.
Extrinsic fraud shall not be a valid ground if it was
availed of, or could have been availed of, in a
motion for new trial or petition for relief.
Note: The petition need not categorically state the
exact words extrinsic fraud; rather, the allegations in
the petition should be so crafted to easily point out
the ground on which it was based.

(Castigador vs. Nicolas, G.R. No. 184023,

2013)

2. Lack of jurisdiction (Rule 47, Section 2)

a. GROUNDS FOR ANNULMENT

239
Absolute lack of jurisdiction over the person of the
defending party OR over the subject matter of the If based on EXTRINSIC FRAUD – the action must
claim. be filed within four (4) years from its
discovery.

If based on LACK OF JURISDICTION – the action

must be brought before it is barred by laches
or estoppel.

Note: In a petition for annulment of judgment based

on lack of jurisdiction, petitioner must show not
merely an abuse of jurisdictional discretion, but an
ABSOLUTE lack of jurisdiction. (RP vs.
Technological Advocates, G.R. No. 165333, 2010)
If based on DENIAL OF DUE PROCESS – the
action does not prescribe. Lack of due
process renders the judgment void. An action
to declare the nullity of a void judgment does
not prescribe. (Sps. Benatiro vs. Heirs of
Cuyos, G.R. No. 161220, 2008)

3. Denial of due process, as recognized Filing and Contents of Petition

by jurisprudence. (Intestate Estate of the Late The action shall be commenced by filing a verified
Nimfa Sian v. Philippine National Bank, G.R. No. petition alleging therein with particularity:
168882, 2007; Sps. Benatiro vs. Heirs of Cuyos,
G.R. No. 161220, 2008)

1. The facts and the law relied upon for

annulment;
2. Those supporting the petitioner’s good and
substantial cause of action or defense, as
the case may be.

b. PERIOD TO FILE ACTION

The petition shall be filed in 3 clearly legible copies

(per Efficient Use of Paper Rule, A.M. No. 11-9-4-
SC), together with:

240
 1. Sufficient copies corresponding to the
number of respondents.
2. Affidavits of witnesses or documents
supporting the cause of action; and
3. Certificate of non-forum shopping.
A certified true copy of the judgment or final order or
resolution shall be attached to the original copy of
the petition intended for the court and indicated as
such by the petitioner. (Rule 47, Section 4)
We have consistently held that a person need not
be party to the judgment sought to be annulled.
What is essential is that he can prove his allegation
that the judgment was obtained by the use of fraud
and collusion and that he would be adversely
affected thereby. (Bulawan v. Aquende, G.R. No.
182819, 2011)
Action by the Court
The court may:
Dismiss the petition outright, if it finds no
substantial merit in the petition, with
specific reasons for such dismissal;
Give due course if the court finds prima facie
merit in the petition, in which case
summons shall be served on the
respondent. (Rule 47, Section 5)
Procedure
A petition for annulment of judgment filed in the
Court of Appeals shall observe the procedure in
ordinary civil actions. Should a trial be necessary,
the reception of the evidence may be referred to a
member of the Court or a Regional Trial Court
judge. (Rule 47, Section 6)
c. EFFECTS OF JUDGMENT OF
ANNULMENT
A judgment of annulment shall set aside the
questioned judgment or final order or resolution and
render the same null and void, without prejudice to
the original action being re-filed in the proper court.
However, where the judgment or final order or
resolution is set aside on the ground of extrinsic
fraud, the court may, on motion, order the trial court
to try the case as if a timely motion for new trial
had been granted therein. (Rule 47, Section 7)
Suspension of Prescriptive Period
The prescriptive period for the re-filing of the
aforesaid original action shall be deemed
suspended from the filing of such original action
until the finality of the judgment of annulment.
However, the prescriptive period shall not be
suspended where the extrinsic fraud is attributable
to the plaintiff in the original action. (Rule 47,
Section 8)
Relief available
The judgment of annulment may include:
1. Award of damages;
2. attorney’s fees; and
3. Other relief.
241

If the questioned judgment or final order or
resolution had already been executed, the court
may issue:
1. Orders of restitution or
2. Other relief as justice and equity may
warrant under the circumstances. (Rule
47, Section 9)
Annulment of Judgments or Final Orders of
MTC
An action to annul a judgment or final order of a
Municipal Trial Court shall be filed in the Regional
Trial Court having jurisdiction over the former. It
shall be treated as an ordinary civil action and
sections 2, 3, 4, 7, 8, and 9 of this Rule shall be
applicable thereto. (Rule 47, Section 10)
5. COLLATERAL ATTACK OF
JUDGMENTS
Collateral attack of judgments
A collateral attack upon a judgment has been
defined to mean any proceeding in which the
integrity of a judgment is challenged, except those
made in the action wherein the judgment is
rendered or by appeal, and except suits brought to
obtain decrees declaring judgments to be void ab
initio. (15 R.C.L., 838); (Alviar vs. Carlos, G.R. No.
L-45291, 1937)
In case of collateral attack, the principles that apply
have been stated as follows: “The legitimate
province of collateral impeachment is void
judgments. There and there alone can it meet with
any measure of success. Decision after decision
bears this import: In every case the field of collateral
inquiry is narrowed down to the single issue
concerning the void character of the judgment and
the assailant is called upon to satisfy the court that
such is the fact. To compass his purpose of
overthrowing the judgment, it is not enough that he
show a mistaken or erroneous decision or a record
disclosing non-jurisdictional irregularities in the
proceedings leading up to the judgment. He must
go beyond this and show to the court, generally
from the fact of the record itself, that the judgment
complained of is utterly void. If he can do that his
attack will succeed for the cases leave no doubt
respecting the right of a litigant to collaterally
impeach a judgment that he can prove to be void.”
(I Freeman on Judgments, sec. 322, p. 642.);
(Barretto vs. Barretto-Datu, G.R. No. L-5549, 1954)
Note: In the case of Sps. Benatiro, the CFI (RTC)'s
order being null and void, it may be assailed
anytime, collaterally or in a direct action or by
resisting such judgment or final order in any action
or proceeding whenever it is invoked, unless barred
by laches. Consequently, the compromise
agreement and the Order approving it must be
declared null and void and set aside. (Sps. Benatiro
vs. Heirs of Cuyos, G.R. No. 161220, 2008)
Direct attack distinguished from collateral
attack
A DIRECT ATTACK against a judgment is made
through an action or proceeding the main object of
which is to annul set aside, or enjoin the
enforcement of such judgment, if not yet carried into
effect; or, if the property has been disposed of, the
aggrieved party may sue for recovery.
A COLLATERAL ATTACK is made when, in
another action to obtain a different relief, an attack
on the judgment is made as an incident in said
action. This is proper only when the judgment, on its
face, is null and void, as where it is patent that the
court which rendered said judgment has no
jurisdiction. (Co vs. CA, G.R. No. 93687, 1991)
END OF TOPIC
Q. EXECUTION, SATISFACTION
AND EFFECT OF JUDGMENTS
242
 5. PROCEEDINGS WHERE PROPERTY
IS CLAIMED BY THIRD PERSONS

1. DIFFERENCE BETWEEN FINALITY

OF JUDGMENT FOR PURPOSES OF a. In relation to third-party claims in
APPEAL; FOR PURPOSES OF attachment and replevin
EXECUTION
2. WHEN EXECUTION SHALL ISSUE

6. RULES ON REDEMPTION
7. EXAMINATION OF JUDGMENT
a. Execution as a matter of right OBLIGOR WHEN JUDGMENT IS
b. Discretionary execution UNSATISFIED
8. EXAMINATION OF OBLIGOR OF
JUDGMENT OBLIGOR
9. EFFECT OF JUDGMENT OR FINAL
ORDERS
10. ENFORCEMENT AND EFFECT OF
3. HOW A JUDGMENT IS EXECUTED FOREIGN JUDGMENTS OR FINAL
ORDERS

1. DIFFERENCE BETWEEN FINAL

JUDGMENT FOR PURPOSES OF
APPEAL; FOR PURPOSES OF
a. Execution by motion or by independent EXECUTION
action
b. Issuance and contents of a writ of
FOR PURPOSES OF APPEAL
execution
c. Execution of judgments for money
General Rule: Final judgments dispose of,
d. Execution of judgments for specific
adjudicate, or determine the rights of the parties
acts
and leave nothing to be adjudicated upon. Only final
e. Execution of special judgments
judgments can be the subject of an appeal.
f. Effect of levy on third persons
Final judgment or order distinguished from
interlocutory order

Final judgment or order

A final judgment or order is one that finally disposes
of a case, leaving nothing more to be done by the
4. PROPERTIES EXEMPT FROM Court in respect thereto, e.g., an adjudication on the
EXECUTION merits which, on the basis of the evidence
presented at the trial, declares categorically what
the rights and obligations of the parties are and
which party is in the right; or a judgment or order
that dismisses an action on the ground, for

243
instance, of res judicata or prescription. Once
rendered, the task of the Court is ended, as far as
deciding the controversy or determining the rights
and liabilities of the litigants is concerned. Nothing
more remains to be done by the Court except to
await the parties' next move and ultimately, of
course, to cause the execution of the judgment
once it becomes "final" or, to use the established
and more distinctive term, "final and executory."
(Philippine Business Bank vs. Chua, G.R. No.
178899, 2010)
Interlocutory order
An interlocutory order does not finally dispose of the
case, and does not end the Court's task of
adjudicating the parties' contentions and
determining their rights and liabilities as regards
each other, but obviously indicates that other things
remain to be done by the Court, is "interlocutory",
e.g., an order denying a motion to dismiss under
Rule 16 of the Rules. Unlike a final judgment or
order, which is appealable, an interlocutory order
may not be questioned on appeal except only as
part of an appeal that may eventually be taken from
the final judgment rendered in the case. (Philippine
Business Bank vs. Chua, G.R. No. 178899, 2010)
FOR PURPOSES OF EXECUTION:
Execution of a final and executory judgment is a
matter of right. A judgment is final and executory
when the law/rules do not provide for an appeal or
the period to appeal has lapsed without an appeal
being taken.
Final judgments distinguished from final and
executory judgments
Doctrine of Immutability of judgments
A judgment that has acquired finality becomes
immutable and unalterable, and may no longer be
modified in any respect even if the modification is
meant to correct erroneous conclusions of fact or
law and whether it will be made by the court that
rendered it or by the highest court of the land.
 
The doctrine of immutability and inalterability of a
final judgment has a two-fold purpose:
1. To avoid delay in the administration of justice and
thus, procedurally, to make orderly the discharge of
judicial business; and
2. To put an end to judicial controversies, at the risk
of occasional errors, which is precisely why courts
exist. 
Exceptions:
1. Correction of clerical errors;
2. Nunc pro tunc entries that cause no
prejudice to any party;
3. Void judgments; and
4. Whenever circumstances transpire after
the finality of the decision rendering its
execution unjust and inequitable. (Apo
Fruits and Hijo Plantation vs. CA, G.R. No.
164195, 2009)

Judgments are “FINAL” in a sense that they finally

dispose of, adjudicate, or determine the rights of the
parties. But such judgments are not yet final and
executory pending the period of appeal. During that
period, execution of the judgment cannot be yet
demanded by the winning party as a matter of right.

Judgments become “FINAL AND EXECUTORY”

by operation of law. Finality of judgment becomes a
fact upon the lapse of the reglementary period to
appeal if no appeal is perfected. In such a situation,
the prevailing party is entitled to a writ of execution,
and issuance thereof is a ministerial duty of the
court. (Abrigo vs. Flores, G.R. No. 160786, 2013);
(Feria and Noche, Civil Procedure Annotated, 2013
ed., vol. 2, p.127)
Note: A supervening event, to be sufficient to stay
or stop the execution, must alter or modify the
situation of the parties under the decision as to
render the execution inequitable, impossible, or
unfair. The supervening event cannot rest on

244
unproved or uncertain facts. (Abrigo vs. Flores,
G.R. No. 160786, 2013)
Doctrine of immutability of a final judgment may be
relaxed only to serve the ends of substantial justice
in order to consider certain circumstances like:
1. Matters of life, liberty, honor or property;
2. Existence of special or compelling
circumstances;
3. Merits of the case;
4. Cause not being entirely attributable to the
fault or negligence of the party favored by
the suspension of the doctrine;
5. Lack of any showing that the review
sought is merely frivolous and dilatory;
6. Other party will not be unjustly prejudiced
by the suspension. (Abrigo vs. Flores, G.R.
No. 160786, 2013)
2. WHEN EXECUTION SHALL ISSUE
NO appeal may be taken from an order of
execution. A party desiring to assail an order of
execution may instead file an appropriate special
civil action under Rule 65 of the Rules of Court.
Requisites of a Writ of Execution
The writ must conform strictly to the decision or
judgment; it cannot vary the terms of the judgment it
seeks to enforce.
a. EXECUTION AS A MATTER OF
RIGHT
When execution shall as a matter of right
On motion:
Upon judgment or order that disposes of the action
or proceeding;
Upon expiration of the period to appeal therefrom
and no appeal has been duly perfected;
When appeal has been duly perfected and resolved
with finality. (Rule 39, Section 1)
Judgments and final orders which may be
executed as a matter of right even BEFORE
expiration of time to appeal:
(Note: Without need of advance notice or service of
a motion for execution on defeated party)
1. Judgment of lower court against defendant
in forcible entry and unlawful detainer
(where the defendant fails to post a
supersedeas bond or deposit the rentals
with the court, or where the appeal is from
a decision of the regional trial court against
the defendant).
2. Judgment in action for injunction,
receivership, accounting and support,
unless otherwise ordered by the court.
3. Award, judgment, final order, or resolution
of quasi-judicial bodies appealable to the
Court of Appeals. (Feria and Noche, Civil
Procedure Annotated, 2013 ed., vol. 2, p.
127)
Section 1 of Rule 39 of the Revised Rules of Court
does not prescribe that a copy of the motion for the
execution of a final and executory judgment be
served on the defeated party, like litigated motions
such as a motion to dismiss (section 3, Rule 16), or
motion for new trial (section 2, Rule 37), or a motion
for execution of judgment pending appeal (section
2, Rule 39), in all of which instances a written notice
thereof is required to be served by the movant on
the adverse party in order to afford the latter an
opportunity to resist the application.
Once the judgment has become final and
executory, the prevailing party (judgment obligee)
may, by motion, ask for the issuance of a writ
execution of the judgment in the court of origin.
(Far Eastern Surety vs. Vda. de Hernandez, G.R.
245
No. L-30359, 1975) The prevailing party can have it
executed as a matter of right, and the judgment
debtor need not be given advance notice of the
application for execution nor be afforded prior
hearings thereon. (De Mesa vs. CA, G.R. No.
109387)
Elementary is the rule that every motion must
contain the mandatory requirements of notice and
hearing and that there must be proof of service
thereof. The rule, however, is NOT ABSOLUTE.
There are motions that can be acted upon by the
court ex parte if these would not cause prejudice to
the other party. They are not strictly covered by the
rigid requirement of the rules on notice and hearing
of motions. A motion for execution is such kind of
motion. (Anama vs. CA, G.R. No. 187021, 2012)
The issuance of the writ of execution is the
ministerial duty of the court. Thus, it is
compellable by MANDAMUS.
Exceptions (When the Court May Refuse
Execution):
1. Where the judgment turns out to
be incomplete or conditional;
2. Judgment is novated by the
parties (e.g. compromise);
3. Change in the situation of the
parties which would render
execution of judgment unjust;
4. Execution is enjoined (e.g., there
is a preliminary injunction);
5. Judgment has become dormant;
6. Execution is unjust or impossible.
Grounds for Quashing a Writ of Execution
1. When the writ of execution varies the
judgment;
2. When there has been a change in the
situation of the parties making the
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 thereof;
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.
You can also file a petition for certiorari under Rule
65 with prayer for TRO to restrain execution.
(Albano, Remedial Law Reviewer)
When execution of final and executory
judgments may be ENJOINED:
1. Upon filing of a petition for relief from
judgment, the court in which the petition is
field may grant preliminary injunction for
the preservation of the rights of the parties
pending the proceedings;
2. In an attack against a judgment which is
void for lack of jurisdiction or was obtained
through fraud, the court in which the action
246
 for certiorari, injunction, or annulment is
filed may grant preliminary injunction; and
3. On equitable grounds. (Feria and Noche,
Civil Procedure Annotated, 2013 ed., vol.
2, p. 130)

A. Execution of a judgment or a final order

pending appeal

General Rule: The dispositive portion of the

decision is that part that becomes the subject of
execution.
Exceptions: Requisites:

Where there is ambiguity, the body of the 1. Motion for execution filed by the
opinion may be referred to for purposes of prevailing party;
construing the judgment. (Mutual Security 2. Notice of the motion to adverse party;
Insurance Corporation v. Court of Appeals and
G.R. No. L-47018, 1987) 3. Good reasons stated in a special
Where extensive and explicit discussion order after due hearing. (Rule 39,
and settlement of the issue is found in the Section 2)
body of the decision. (Wilson Ong Ching
Kian Chung, et al v. Chinese National
Cereals Oil and Foodstuffs Import and
Export Corp, et al. G.R. No. 131502, June
8, 2000)

On motion, WITH NOTICE to the adverse party, the

prevailing party may apply for a writ of execution of
judgment or final order pending appeal.

This must be done while trial court has

jurisdiction over the case and is in possession of
either the original record or record on appeal.
The court may, in its discretion, order execution
even before the expiration of the period for appeal.

After the trial court has lost jurisdiction, the motion

b. DISCRETIONARY EXECUTION for execution pending appeal may be filed with the
appellate court.

Note: Awards for MORAL and EXEMPLARY

damages CANNOT be the subject of execution
pending appeal. (International School, Inc. (Manila)
v. CA, G.R. No. 131109, 1999) Unlike the actual
damages for which the petitioners may clearly be
held liable if they breach a specific contract and the

247
amounts of which are fixed and certain, liabilities The insolvency of the judgment debtor. (Archinet
with respect to moral and exemplary damages as International, Inc. v. Becco Philippines, Inc.
well as the exact amounts remain uncertain and G.R. No. 183753, 2009)
indefinite pending resolution by the Intermediate
Appellate Court (now CA) and eventually the
Supreme Court. (Radio Communications v. Lantin,
G.R. No. L-59311, 1985)

Note: Execution pending appeal is NOT applicable

in land registration proceedings.

What is a Good Reason

Good reasons consist of compelling circumstances
justifying immediate execution lest judgment
becomes illusory, or the prevailing party, after the
lapse of time, be unable to enjoy it, considering the
tactics of the adverse party who may have However, when there are several defendants and
apparently no cause but to delay. (Archinet the co-defendant is not insolvent, insolvency of
International, Inc. v. Beco Philippines, Inc. G.R. No. a defendant is not a good reason for execution.
183753, 2009) (Philippine National Bank v. Puno G.R. No.
76018 1989)
Examples of GOOD REASONS:
That the appeal was being taken for the purpose of
delay. (Presbitero v. Roxas 73 Phil. 300, 1941)

B. Execution of several, separate or partial

judgments.

Where the education of the person to be supported

would be unduly delayed. (Javier v. Lucero, et
al. 94 Phil. 634, 1954)

Several separate or partial judgments MAY be

executed under the SAME terms and
conditions as execution of judgment or final
order pending appeal.

248
 Note: An award for actual/compensatory 1. Injunction;
damages may be ordered executed pending 2. Receivership;
appeal, but not an award for moral or 3. Accounting;
exemplary damages. 4. Support;
5. Other judgments declared to be
immediately executory as ordered
by the trial court. (Rule 39,
Section 4)

Stay of Discretionary Execution

Stayed upon approval by the proper court of a
sufficient supersedeas bond filed by the party
against whom it is directed, 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.

The supersedeas bond is filed by the petitioner

and approved by the court BEFORE the judgment
becomes final and executory. It guarantees the
satisfaction of the judgment in case of affirmation on
appeal. (Rule 38, Section 3)
Note: Section 3 (Stay of Discretionary Execution)
finds application in ordinary civil actions where the
interest of the prevailing party is capable of
pecuniary estimation, and consequently, of
protection, through the filing of a supersedeas bond.
Thus, the penultimate sentence of Section 3 states:
“[T]he bond thus given may be proceeded against
on motion with notice to the surety.” Consequently,
it finds no application in election protest cases
where judgments invariably include orders which
are not capable of pecuniary estimation such as the
right to hold office and perform its
functions. (Navarosa vs. Comelec, G.R. No.
157957, 2003)
Judgments NOT Stayed By Appeal
General Rule: Judgment is stayed by appeal. If so
stayed, it is not yet executory.
These exceptions shall be enforceable after their
rendition and shall NOT be stayed by an appeal
taken therefrom UNLESS otherwise ordered by
the trial court.
On appeal therefrom, the appellate court in its
discretion MAY make an order suspending,
modifying, restoring or granting the injunction,
receivership, accounting, or award of support.
The stay of execution shall be upon such terms as
may be considered proper for the security or
protection of the rights of the adverse party.
Effect of Reversal of Executed Judgment
The trial court may, on motion, issue such orders of
restitution or reparation of damages as equity and
justice may warrant under the circumstances. (Rule
39, Section 5)
3. HOW JUDGMENT IS EXECUTED
a. EXECUTION BY MOTION OR BY
INDEPENDENT ACTION

Exceptions: Instances when judgments are

immediately executory:

249
A Final and Executory Judgment or Order may date of finality of the revived judgment and not of
be executed: the original judgment.

The action for revival of judgment need not

necessarily be filed with the same court that
decided the case; it shall be filed in the RTC as one
incapable of pecuniary estimation.

1. On motion, within five (5) years from

entry; or
2. By filing an independent action for
revival of judgment after five (5) years
but before ten (10) years from entry.

Revival of Judgment Revival of Judgment

(Section 6) (Section 34)

The Revived Judgment may be enforced:

An independent action Not an independent

assigned a new docket action; merely by
number with payment motion filed in court
of filing fees, assigned
1. By motion, within five (5) years from date to a new court
of its entry; or
2. By action, after the lapse of five (5) years,
before it is barred by the statute of
limitations. (Rule 38, Section 6)

Assumes that there is Assumes that a

no execution within the judgment is executed
first five years within the first five
years
Suspension of the Five (5) Year Period for
Execution by Motion
While the general rule is that a judgment can no
longer be affected by mere motion after five (5)
years from the date of entry, delays in the execution
of the judgment that are ATTRIBUTABLE TO THE
DEBTOR has the effect of SUSPENDING the
running of the prescriptive period for the The party who files the The party who files the
enforcement of the judgment. action is the judgment motion is not the
creditor himself, or his original judgment
Execution by Independent Action – REVIVAL OF assignee, or successor- creditor but the highest
JUDGMENT in-interest bidder in the public
A revived judgment is deemed a new judgment, auction sale
separate and distinct from the original judgment.
Hence, the five (5) year period to enforce the
judgment by motion and the ten (10) year period to
enforce the judgment by action will run from the

250
 b. ISSUANCE AND CONTENTS OF A WRIT
Filed due to lapse of Filed because movant
OF EXECUTION
the five-year period is deprived of the
property purchased
WRIT OF EXECUTION
A judicial writ issued to an officer authorizing
him/her to execute the judgment of the court.

Requisites:

Execution in case of death or party

In case of death of the judgment obligee,
execution will issue upon the application of the
executor or administrator or successor-in-interest. 1. Must strictly conform to the decision or
judgment which gives it life;
In case of death of judgment obligor: 2. Cannot vary the terms of judgment it
BEFORE levy: seeks to enforce.

1. Execution will issue if the action is for

the recovery of real or personal The Writ must:
property or any lien thereon.
2. Execution will not issue if the action is
for the recovery of a sum of money.
The judgment obligee must file a claim
against the estate of the judgment
obligor under Rule 86.
1. Be issued in the name of the Republic of
the Philippines from the court, which
granted the motion;
2. State the name of the court, the case
number and title, the dispositive part of the
subject judgment or order; and
3. Require the sheriff or other proper officer
AFTER levy: Execution will continue even in money to enforce the writ according to its terms.
judgment. The property 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. (Rule 39, Section 7)

The motion for execution and the writ of execution

must state specifically the amount of interest, costs,
damages, rents, or profits due as of the date of
issuance of the writ, aside from the principal
obligation.

251
Special sheriffs for the service of a writ of execution
are not authorized by law.
An appeal is the remedy for an order denying the
issuance of a writ of execution.
LEVY is an act by which an officer sets apart or
appropriates a part of the whole property of the
judgment debtor for purposes of the execution sale.

Issuance of the corresponding writ of execution

upon a final and executor judgment is a ministerial
duty of the court to execute which is compellable by
mandamus (Ebero v. Cañizares, 79 Phil. 152 G.R.
No. L-1397, 1947)

c. EXECUTION OF JUDGMENTS FOR

MONEY

A Judgment for Money is enforced by:

Levy is a pre-requisite to the auction sale. In order
that an execution sale may be valid, there must be
a previous valid levy. A sale not preceded by a
valid levy is void and the purchaser acquires no
title. (Valenzuela v. De Aguila, G.R. No. L-18083-
83, 1963)
1. Immediate payment on demand;
2. Satisfaction by levy;
3. Garnishment of debts and credits. (Rule
39, Section 9)

Immediate payment on demand

Judgment obligor shall pay in cash, certified bank
check payable to the judgment obligee, or any other The officer shall levy upon properties of the
form of payment acceptable to the latter of the full judgment obligor not otherwise exempt from
amount stated in the writ of execution. execution.

Satisfaction by levy The judgment obligor exercises discretion to choose

which property to levy and if not exercised, the

252
officer shall levy first on personal property, then on
real property.
The sheriff shall sell only property sufficient to
satisfy the judgment and other lawful fees.
The levy on execution creates a lien in favor of the
judgment obligee over the right, title, and interest of
the judgment obligor in such property at the time of
the levy, subject to liens and encumbrances then
existing.
Garnishment of debts and credits
GARNISHMENT is an act of appropriation by the
court when the property of a debtor is in the hands
of a third person. It is a species of attachment for
reaching any property or credits pertaining or
payable to a judgment debtor.
Note: Garnishment is proper only when the
judgment to be enforced is one for payment of a
SUM OF MONEY.  It cannot be employed to
implement a special judgment such as that
rendered in a special civil action for mandamus.
(National Home Mortgage vs. Alpajaro, G.R. No.
166508, 2009)
The sheriff may levy on debts due to the debtor, or
other credits, including bank deposits, financial
interests, royalties, commissions and other personal
property, not capable of manual delivery in the
possession or control of 3rd parties. Notice must be
served to the 3rd party.
Note: The unused balance of an overdraft account
is not a credit subject to garnishment. (Feria and
253
Noche, Civil Procedure Annotated, 2013 ed., vol. 2,
p.181)
The garnishee or the 3rd person who is in
possession of the property of the judgment debtor is
deemed a forced intervenor.
d. EXECUTION OF JUDGMENTS FOR
SPECIFIC ACTS
Conveyance, delivery of deeds, or other specific
acts; vesting title.
If a party fails to comply within the time specified,
the court may direct the act to be done at the cost of
the disobedient party.
Sale of real or personal property
The officer must sell such property, describing it,
and apply the proceeds in conformity with the
judgment.
Delivery or restitution of real property
The officer shall demand the losing party to
peaceably vacate the property within 3 working
days, and restore possession to judgment obligee;
otherwise, the officer shall oust such disobedient
party.
Removal of improvements on property subject
of execution
Officer shall not destroy, demolish, or remove
improvements except upon special order of the
court.
Delivery of personal property
The officer shall take possession of the same and
forthwith deliver it to the party entitled to satisfy any
judgment for money as therein provided. (Rule 39,
Section 10)
If the party refuses to vacate the property, the
Sheriff must oust the party. But if demolition is
involved, there must be a special order.
A writ of execution directing the sheriff to cause the
defendant to vacate is in the nature of a habere
facias possessionem and authorizes the sheriff to
break open the premises where there is no
occupant therein. (Arcadio v. Ylagan, A.C. No.
2734, July 30, 1986)
When the party refuses to comply, the court can
appoint some other person at the expense of the
disobedient party and the act done shall have the
same effect as if the disobedient party performed it.
e. EXECUTION OF SPECIAL
JUDGMENTS
SPECIAL JUDGMENT
One which can only be complied with by the
judgment obligor because of his/her personal
qualifications or circumstances.
For example, a judgment granting a petition for
mandamus is a special judgment, since a writ of
mandamus is a command directed to an inferior
court, tribunal, or board, or to some corporation or
person, requiring the performance of a particular
duty, and which duty results from the official station
of the party to whom the writ is directed, or from
operation of law. (National Housing Mortgage
Finance Corporation v. Abayari, G.R. No. 166508,
2009)
Requisites:
254
 1. The judgment requires performance of any 1. Family home, or homestead, land
act other than payment of money, or the necessarily used in connection therewith.
sale or delivery of real or personal 2. Ordinary tools and implements used in
property. trade, employment, or livelihood.
2. A certified copy of the judgment shall be: 3. Three (3) horses, cows, carabaos, or other
beast of burden necessarily used in his/her
ordinary occupation.
4. Necessary clothing and articles for
ordinary personal use, except jewelry.
5. Household furniture and utensils
necessary for housekeeping that is ≤
a. Attached to the writ of execution; P100K.
and 6. Provisions for individual or family use
b. Served by the office upon: sufficient for 4 months.
7. Professional libraries and equipment.
8. One fishing boat and accessories ≤ P100K
used in livelihood.
9. Salaries, wages, or earnings as are
necessary for support of family within 4
months preceding levy.
3. Party against whom the judgment is 10. Lettered gravestones.
rendered; 11. Monies, benefits, privileges, or annuities
4. Any other person required by the judgment accruing out of any life insurance; and
or by law to obey the writ. (Rule 39, 12. Properties specially exempt from
Section 11) execution.

Failure to comply with special judgment under Rule Other EXEMPTIONS:

39, Section 11 is punishable by contempt by
imprisonment. This is an exception to the rule that
contempt is not a remedy to enforce a judgment.

f. EFFECT OF LEVY ON THIRD PERSONS

A levy creates a lien in favor of the judgment 1. Property mortgaged to DBP. (Section 26,
obligee over the right, title and interest of the C.A. 458)
judgment obligor in such property at the time of the 2. Property taken over by Alien Property
levy, subject to liens and encumbrances then Administration. (Section 9[f], US Trading
existing. With The Enemy Act)
3. Savings of national prisoners deposited
4. PROPERTIES EXEMPT FROM with the Postal Savings Bank. (Act 2489)
EXECUTION 4. Backpay of pre-war civilian employees.
(R.A. 304)
5. Philippine Government backpay to
Except as otherwise expressly provided by law, the
guerillas. (R.A. 897)
following property, and no other, shall be EXEMPT
6. Produce, work animals, and farm
from execution:
implements of agricultural lessees, subject
to limitations. (Section21, R.A. 6389)

255
 7. Benefits from private retirement systems of
companies and establishments, with
limitations. (R.A. 4917)
8. Labor wages, except for debts incurred for
food, shelter, clothing, and medical
attendance. (Art. 1708, NCC)
9. Benefit payments from the SSS. (Section
16 R.A. 1161 as amended by P.D.s 24, 65,
and 177)
10. Copyrights and other rights in intellectual
property under the former copyright law.
(P.D. 49 cf. Section 239.3, R.A. 8293)
11. Bonds issued under R.A. 1000. (NASSCO
v. CIR G.R. No. L-17874, 31 August 1963;
Regalado, F. Remedial Law Compendium
Vol. 1, 9th ed., pp. 481-482)
But no article or species of property mentioned in
this section shall be exempt from execution issued
upon a judgment recovered for its price or upon a
judgment of foreclosure of a mortgage hereon.
Return of Writ of Execution
The writ of execution shall be returnable to the court
immediately after the judgment has been satisfied
in part or in full.
If the judgment cannot be satisfied in full within
thirty (30) days after receipt of the writ, the officer
shall report to the court and state the reason
therefor. (Rule 39, Section 4)
Lifetime of the Writ of Execution
The writ shall continue in effect during the period
within which the judgment may be enforced by
motion. (Rule 39, Section 4) Thus, the writ is
enforceable within the five (5) year period from
entry of judgment.
NOTICE OF SALE of Property on Execution
If PERISHABLE property: By posting written
notice of the time and place of the sale in three
(3) public places, preferably in conspicuous
areas of the municipal or city hall, post office
and public market where the sale is to take
place, for such time as may be reasonable,
considering the character and condition of the
property.
OTHER PERSONAL property: By posting similar
notice in three (3) public places above-
mentioned for not less than five (5) days.
If REAL property: By posting for 20 days in three
(3) public places particularly describing the
property and stating where the property is to be
sold, and if the assessed value of the property
exceeds P50,000, by publishing a copy of the
notice once a week for two (2) consecutive
weeks in one (1) newspaper selected by raffle
(whether in English, Filipino, or any major
regional language published, edited and
circulated or, in the absence thereof, having
general circulation in the province or city).
In all cases, written notice of the sale shall be given
to the judgment obligor, at least three (3) days
before the sale, except as provided in paragraph (a)
where notice shall be given at any time before the
sale. It shall specify the place, date and exact time
of sale (between 9AM and 2PM). (Rule 39, Section
15)
PLACE OF SALE
1. May be agreed upon by the parties; or
2. In the absence of such agreement, the
sale will be held in:
1. Sale or Real or Personal
Property NOT Capable of
Manual Delivery:
Office of the Clerk of Court of
MTC or RTC which issued the
256
 writ or was designated by the
appellate court
2. Sale of Personal Property
Capable of Manual Delivery:
Place where property is located.
(Rule 39, Section 15)
5. PROCEEDINGS WHERE PROPERTY
IS CLAIMED BY THIRD PERSONS
Who May File Third Party-Claims
Any other person other than the judgment obligor or
his agent. (Third-part claimant)
Time to File a Third-Party Claim
The third (3rd) party claim (terceria) may be filed at
any time, so as long as the sheriff has the
possession of the property levied upon, or before
the property is sold under execution.
Purpose of Third-Party Claim:
1. To recover the property levied on by the
sheriff, although the claimant may
vindicate his claim by any proper action
even if he has not filed a third-party claim.
2. To hold the sheriff liable for damages for
the taking or keeping of such property,
which action for damages, however, must
be brought within 120 days from the date
of the filing of the bond. (Feria and Noche,
Civil Procedure Annotated, 2013 ed., vol.
2, p. 211)
Procedure in Making a Third-Party Claim
Third (3rd) Party Claimant should:
1. Make an affidavit of his/her title thereto,
or right of possession thereof, stating the
grounds of such right or title; and
2. Serve such affidavit upon the sheriff and
a copy thereof upon the judgment
obligee.
Effect: The Officer shall not be bound to keep the
property, UNLESS the Judgment Obligee, on
demand the officer files an INDEMNITY BOND
approved by the court to indemnify the third party
claimant in a sum not less than the value of the
property levied on.
In case of disagreement as to the value of the
property, the Court issuing the writ shall determine
the same.
The Officer shall not be liable for damages to any
third-party claimant if such bond is filed by the
judgment obligee for the taking or keeping of the
property.
Nothing herein contained shall prevent such
claimant or any third person from vindicating his
257
claim to the property in a SEPARATE action. (Rule
39, Section 16)
However, the judgment obligee can claim damages
against a third-party claimant who filed a frivolous or
plainly spurious claim, and such judgment obligee
can institute proceedings therefor in the SAME or
SEPARATE action.
When the writ of attachment is issued in favor of the
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall NOT be
required, and in case the sheriff is sued for
damages as a result of the attachment, he shall be
represented by the Solicitor General, and if held
liable therefor, the actual damages adjudged by the
court shall be paid by the National Treasurer out of
the funds to be appropriated for the purpose. (Rule
39, Section 14)
a sum not less than double the value of the
property as stated in the applicant’s affidavit. (Rule
60, Section 7)
Remedy: Nothing shall prevent a claimant or any
third person from vindicating his claim to the
property, or prevent the applicant from claiming
damages against a third-party claimant who filed a
frivolous or plainly spurious claim, in the SAME or a
SEPARATE action. (Rule 60, Section 7)
EXECUTION SALE
Penalty for selling without notice, or removing
or defacing notice
The following are liable for actual and punitive
damages:

a. IN RELATION TO THIRD-PARTY CLAIM

IN ATTACHMENT AND REPLEVIN

Proceedings where property is claimed by a third
person are the same as to a judgment obligee
(final and executory judgments), an attaching party
(attachment), and an applicant praying for
recovery of possession of personal property
(replevin), EXCEPT that the amount of the
INDEMNITY BOND they file differs.
1. An officer selling without the notice
required under Section 15; and
2. A person willfully removing or defacing the
notice posted, if done before the sale, or
before satisfaction of judgment if satisfied
before the sale.

ATTACHMENT (Rule 57)

To keep the property in the possession of the
sheriff, the ATTACHING PARTY or his AGENT, on
demand of the sheriff, shall file a BOND approved
by the court to indemnify the third-party claimant in
a sum not less than the value of the property Actual and punitive damages may be recovered by
levied upon. (Rule 57, Section 14) motion in the same action. (Rule 39, Section 17)

Remedy: Nothing shall prevent a claimant or any

third person from vindicating his claim to the
property, or prevent the attaching party from
claiming damages against a third-party claimant
who filed a frivolous or plainly spurious claim, in the
SAME or a SEPARATE action. (Rule 57, Section
14)

Replevin
To keep the property in the possession of the sheriff
or to have the latter deliver the property to the
applicant, the APPLICANT or his AGENT, on
demand of said sheriff, shall file a bond approved No Sale if Judgment and Costs Paid
by the court to indemnify the third-party claimant in

258
At any time before the sale of property on Right of redemption No right of redemption
execution, the judgment obligor may prevent the exists when property is except by the
sale by paying the amount required by the real mortgagor where the
execution and the costs that have been incurred mortgagee is a bank or
therein. (Rule 39, Section 18) a banking institution.
(See Section 47 of
How property sold on execution; who may General Banking Law
direct manner and order of sale of 2000)
Sales of property under execution must be made:
If the mortgagee is a
non-banking institution,
there is no right to
redeem.

1. At public auction.
2. To the highest bidder.
3. To start at the exact time fixed in the
notice.

Title acquired after the Title acquired upon

expiration of the period entry of the
of redemption when the confirmation and
final deed of registration of the
conveyance is foreclosure sale
executed
After sufficient property has been sold to satisfy the
execution, no more shall be sold and any excess
shall be promptly delivered to the judgment obligor
or his/her authorized representative, unless
otherwise directed by the judgment or order of the
court. (Rule 39, Section 19)

Refusal of Purchaser to Pay

The officer may again sell the property to the
highest bidder and shall not be responsible for any
loss occasioned thereby. But the court may order
the refusing purchaser to pay to the court the
amount of such loss with costs. The court may
Ordinary Sale on Sale in Judicial punish him/her for contempt if he/she disobeys the
Execution Foreclosure of order. The officer may then reject any subsequent
Mortgage bid of such purchaser who refuses to pay. (Rule 39,
Section 20)

If Judgment Obligee is Purchaser

When the purchaser is the judgment obligee, and
no third party claim has been filed, he/she need not
pay the amount of the bid if it does not exceed the
amount of his/her judgment. If it does, he/she shall
No need for Must be confirmed by
pay only the excess. (Rule 39, Section 21)
confirmation of the the court
court
Adjournment of Sale

259
With written consent of the judgment obligor and registration of the certificate of sale. (Rule
obligee or their duly authorized representatives: The 39, Section 25)
officer may adjourn the sale to any date and time
agreed upon by them.

Without such written consent: The officer may

adjourn the sale from day to day if it becomes
necessary to do so for lack of time. (Rule 39,
Section 22)
Note: The certificate of sale in this case is merely
Conveyance to Purchaser of Personal Property provisional. No court confirmation is required.
Capable of Manual Delivery
When the purchaser pays the purchase price, the Certificate of Sale Where Property is Claimed by
officer making the sale must deliver the property to Third Person
the purchaser and, if desired, execute and deliver The certificate of sale must make express mention
to him/her a certificate of sale. (Rule 39, Section 23) of the existence of such third-party claim. (Rule 39,
Section 26)
Conveyance to Purchaser of Personal Property
NOT Capable of Manual Delivery 6. RULES ON REDEMPTION
When the purchaser pays the purchase price, the
officer must execute and deliver a certificate of Right of redemption
sale. The certificate conveys to the purchaser all
the rights which the judgment obligor had in the
property as of the date of the levy on execution
or preliminary attachment. (Rule 39, Section 24)

Note: The execution and delivery of a certificate of

sale is mandatory for personal property not capable 1. Personal Property - no right because the
of manual delivery (unlike in conveyance of sale is absolute.
personal property capable of manual delivery). This 2. Real Property - right is given.
constitutes symbolic delivery.

Conveyance of Real Property; Certificate thereof

Given to Purchaser and Filed with the Registry
of Deeds
The officer must give to the purchaser a certificate
of sale.
Who may redeem REAL property
Contents of CERTIFICATE OF SALE: The JUDGMENT OBLIGOR; or his SUCCESSOR
IN INTEREST in the whole or any part of the
property;
A creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, or
on some part thereof, subsequent to the lien
under which the property was sold. Such
1. A particular description of the real property redeeming creditor is termed a
sold. REDEMPTIONER. (Rule 39, Section 27)
2. The price paid for each distinct lot or
parcel.
3. The whole price paid by him/her.
4. A statement that the right of redemption
expires 1 year from the date of the

260
 within the one-year period, if he is the first
redemptioner, and within 60 days from the last
redemption, if he is a subsequent redemptioner,
provided that the judgment debtor has not exercised
his right of redemption. (Regalado, Remedial Law
Compendium, Vol. I, Sixth Revised Edition, p. 457)

Period to redeem Redemption price

Judgment Debtor: By the judgment obligor or first redemptioner:

Within one (1) year from the date of registration 1. Purchase price.
of the certificate of sale. 2. 1%interest per month thereon, up to
the time of redemption.
3. Any amount of assessments or taxes
which the purchaser may have paid
thereon after purchase and interest on
such last named amount at the same
rate. and
Redemptioner: 4. If the purchaser be also a creditor
having a prior lien to that of the
redemptioner, other than the judgment
under which such purchase was
made, the amount of such other lien,
with interest.

Within one (1) year from the date of registration

of the certificate of sale if he/she is the first
redemptioner; and
Within 60 days from the last redemption, if
he/she is a subsequent redemptioner.
(Rule 39, Section 28) By subsequent redemptioners:

1. Amount paid on the last redemption.

Note: The periods for redemption are not extendible 2. 2% interest per month thereon.
or interrupted. The parties may, however, agree on 3. Any amount of assessments or taxes
a longer period. In such case, it would be a which the last redemptioner may have
conventional redemption. (Lazo v. Republic Surety paid thereon after redemption by
& Insurance Co., G.R. No. 27365, 1970) him/her with interest on such last
named amount; and
The judgment debtor has always one year from the 4. Amount of any liens held by said last
registration of the certificate of sale within which to redemptioner prior to his/her own, with
redeem, regardless of whether there have been any interest.
prior redemptions and the date of such
redemptions; and the moment said judgment debtor
redeems, there shall be no further redemption. The
redemptioner, on the other hand, must redeem

261

The offer to redeem must be accompanied by a
bona fide tender of redemption price. But a formal
offer to redeem with a tender is not necessary when
the right to redeem is exercised through the filing of
a complaint to redeem in the courts, within the
period to redeem.
Certificate of Redemption
The person to whom redemption is made must
execute and deliver a certificate of redemption
acknowledged before a notary public or other officer
authorized to take acknowledgments of
conveyances of real property. (Rule 39, Section 29)
Proof of redemption required by redemptioner
A redemptioner must produce to the officer, or
person from whom he/she seeks to redeem, and
serve with his/her notice to the officer:
1. A copy of the judgment or final order
certified by the clerk of the court wherein
the judgment or final order is entered; or,
2. If he/she redeems upon a mortgage or
other lien, a memorandum of the record
thereof, certified by the registrar of deeds,
or an original or certified copy of any
assignment necessary to establish his/her
claim; and
3. An affidavit executed by him/her or his/her
agent, showing the amount then actually
due on the lien. (Rule 39, Section 30)
Manner of Using Premises Pending
Redemption; Waste Restrained
Until the expiration of the time allowed for
redemption, the court may, as in other proper
cases, restrain the commission of waste on the
property by injunction, on the application of the
purchaser or the judgment obligee, with or without
notice. (Rule 39, Section 31)
What is NOT Considered Waste that can be
Restrained
It is NOT waste for a person in possession of the
property at the time of the sale, or entitled to
possession afterwards, during the period allowed
for redemption:
To continue to use it in the same manner in which it
was previously used; or
To use it in the ordinary course of husbandry; or
To make the necessary repairs to buildings thereon
while he/she occupies the property. (Rule 39,
Section 31)
Rents, earnings and income of property pending
redemption
All rents, earnings and income derived from the
property pending redemption shall belong to the
judgment obligor until the expiration of his/her
period of redemption. (Rule 39, Section 31)
Deed and possession to be given at expiration
of redemption period; by whom executed or
given
1. If NO redemption is made within one (1)
year from the date of the registration of the
certificate of sale - the purchaser is
entitled to a conveyance and possession
of the property.
2. If redeemed whenever sixty (60) days
have elapsed and no other redemption has
been made, and notice thereof given, and
the time for redemption has expired – the
last redemptioner is entitled to the
conveyance and possession.
262
 d. Because a third person has
In all cases the judgment obligor shall have the vindicated his/her claim to the
entire period of one (1) year from the date of the property.
registration of the sale to redeem the property.

The deed shall be executed by:

The purchaser may:

1. The officer making the sale; or

2. His/her successor in office.

a. File a motion in the same action or in a

separate action to recover from the
judgment obligee the price paid, with
interest, or so much thereof as has not
been delivered to the judgment obligor, or
b. File a motion to have the original judgment
revived in his/her name for the whole price
with interest, or so much thereof as has
been delivered to the judgment obligor.
(Rule 39, Section 34)
Recovery of price if sale not effective; revival of
judgment
The purchaser may recover the purchase price if:

Note: The judgment so revived shall have the same

force and effect as an original judgment would have
1. The purchaser or his/her successor-in- as of the date of the revival and no more.
interest, fails to recover the possession
thereof; or Right to contribution or reimbursement
2. Is evicted therefrom: Contribution and reimbursement may be obtained in
a separate action, unless cross claims have been
filed and adjudicated in the same action, in which
case, execution may issue to compel contribution or
reimbursement. (Feria and Noche, Civil Procedure
Annotated, 2013 ed., vol 2)

a. In consequence of irregularities in 7. EXAMINATION OF JUDGMENT

the proceedings concerning the OBLIGOR WHEN JUDGMENT IS
sale; or
b. Because the judgment has been SATISFIED
reversed or set aside; or
c. Because the property sold was
exempt from execution; or

263
 1. Against a specific thing; or
2. In respect to the probate of a will; or
3. The administration of the estate of a
deceased person; or
4. In respect to the personal, political, or
legal condition or status of a particular
person or his relationship to another
Upon return of writ of execution, and judgment is (Example: naturalization, adoption,
still unsatisfied, the creditor may ask the court to and annulment of marriage)
require the debtor to appear and his/her property or
income be examined. (Rule 39, Section 6)

Limitation
No judgment obligor shall be required to appear
before a court or commissioner outside the
province or city in which such obligor resides or is
found. The judgment or final order is CONCLUSIVE upon
the title to the thing, the will or administration or the
8. EXAMINATION OF DEBTORS OF THE condition, status or relationship of the person.
JUDGMENT OBLIGOR

Exception: The probate of a will or granting of

letters of administration shall only be PRIMA
FACIE evidence of the death of the testator or
intestate. (Rule 39, Section 47)

The court may order to be examined any person or

corporation who has property of the debtor, or is
indebted to the debtor in order to bind the credits
Effects of Judgments IN PERSONAM
due to debtor. (Rule 39, Section 37)
In OTHER CASES, the judgment or final order is,
with respect to the matter directly adjudged or
Enforcement of Attendance and Conduct of
as to any other matter that could have been
Examination
missed in relation thereto, CONCLUSIVE
A party or other person may be compelled, by an
between the parties and their successors in
order or subpoena, to attend before the court or
interest, by title subsequent to the
commissioner to testify as provided in Sections 36
commencement of the action or special
and 37. (Rule 39, Section 38)
proceeding, litigating for the same thing and
under the same title and in the same capacity.
9. EFFECT OF JUDGMENT AND FINAL (RES JUDICATA or BAR BY PRIOR
ORDERS JUDMENT)

Effects of Judgments IN REM

In case of a judgment or final order:

264
 In case of a judgment or final order UPON A
SPECIFIC THING:

In ANY OTHER LITIGATION BETWEEN THE

SAME PARTIES OR THEIR SUCCESSORS The judgment or final order is conclusive upon
IN INTEREST, that only is deemed to have the title to the thing.
been adjudged in a former judgment or final
order which appears upon its face to have been
so adjudged, or which was actually and
necessarily included therein or necessary
thereto. (ESTOPPEL BY JUDGMENT OR
CONCLUSIVENESS OF JUDGMENT)

Judgment is deemed CONCLUSIVE when the In case of a judgment or final order AGAINST A
issues actually and directly resolved in a former suit PERSON:
cannot again be raised in any future case between
the same parties involving a different cause of
action.

Res Judicata or Bar By Prior Judgment

A judgment or decree of a court of competent
jurisdiction concludes the litigation between the
parties and their successors or privies and bars a
new action or suit involving the same cause of
action.
The judgment or final order is presumptive
evidence of a right as between the parties and
their successors in interest by a subsequent
title.

Estoppel by Judgment or Conclusiveness of

Judgment
Any right, fact or matter in issue which has been
directly adjudicated upon or is necessarily
involved in the determination of the action by a
competent court is conclusively settled by the
judgment or final order and CANNOT be litigated In EITHER case, the judgment or final order may be
again by the parties and their privies. REPELLED by evidence of a:

10. ENFORCEMENT AND EFFECT OF

FOREIGN JUDGMENTS OR FINAL
ORDERS

1. Want of jurisdiction;
2. Want of notice to the party;
3. Collusion;
4. Fraud; or
5. Clear mistake of law or fact.

265
 a. Grounds for issuance of writ of
ENFORCEMENT attachment
In order to enforce a foreign judgment in the b. Requisites
Philippines, it is necessary to file an action based
on said judgment. A foreign judgment is presumed c. Issuance and contents of order
valid and binding in the country from which it of attachment; affidavit and
comes, until the contrary is show. (Feria and Noche, bond
Civil Procedure Annotated, 2013 ed., vol. 2, p. 287) d. Rule on prior or
contemporaneous service of
RECOGNITION summons
A defendant in a Philippine court may invoke a e. Manner of attaching real and
foreign judgment as res judicata in his defense. It is personal property; when
not necessary to institute a separate action or property attached is claimed
proceeding for recognition of the foreign judgment, by third person
as long as the parties opposed to the judgment on f. Discharge of attachment and
the grounds of want of jurisdiction, want of notice to the counter-bond
the party, collusion, fraud, or clear mistake of law or
fact, have the opportunity to challenge the foreign
g. Satisfaction of judgment out of
property attached
judgment. (Feria and Noche, Civil Procedure
Annotated, 2013 ed., vol. 2, p. 288)

END OF TOPIC

4. Preliminary injunction

R. PROVISIONAL REMEDIES a. Definitions and differences:

preliminary injunction and
temporary restraining order;
status quo ante order
b. Requisites
c. Kinds of injunction
d. When writ may be issued
e. Grounds for issuance of
preliminary injunction
f. Grounds for objection to, or for
the dissolution of injunction or
restraining order
g. Duration of TRO
1. Nature of provisional remedies h. In relation to R.A. 8975, ban on
2. Jurisdiction over provisional issuance of TRO or writ of
injunction in cases involving
remedies government infrastructure
3. Preliminary attachment projects
i. Rule on prior or
contemporaneous service of

266
 summons in relation to
attachment

PROVISIONAL REMEDIES
5. Receivership Provisional remedies are temporary and ancillary
remedies to which party-litigants may resort for the
preservation or protection of their rights or interests,
and for no other purpose, during the pendency of
the principal action. (Feria and Noche, 2013)

Purpose of provisional remedies

a. Cases when receiver may be
appointed
b. Requisites
c. Requirements before issuance
of an order
d. General powers of a receiver
e. Three kinds of bonds
f. Termination of receivership
6. Replevin
1. To protect the rights of a party during the
litigation
2. To secure the judgment
3. To preserve the subject matter of the
litigation
4. To preserve the status quo / status quo
ante
5. To prevent very serious damage; or
6. To meet a very urgent need

a. When may writ be issued

b. Requisites
c. Affidavit and bond; redelivery
bond

Other provisional remedies

1. NATURE OF PROVISIONAL
REMEDIES 1. VAWC (R.A. 9282)

267
 2. Marital cases (nullity, annulment, legal
separation) (A.M. 02-11-12-SC)
3. Custody of minors (A.M. 03-04-04-SC)
4. Special rules under Alternative Dispute
Resolution Act (R.A. 9285)
5. Provisional remedies relative to the rule on
Writ of Amparo and Writ of Habeas Data
6. Rules of Procedure for Environmental
Cases (A.M. No. 09-6-8-SC)
2. JURISDICTION OVER PROVISIONAL
REMEDIES
The court which grants or issues a provisional
remedy is the court which has jurisdiction over the
main action. (Riano, 2009)
All inferior courts can grant all appropriate
provisional remedies. The enforcement of said writs
outside the territorial jurisdiction of the inferior court
no longer requires the approval of the RTC.
In the case of the provisional remedy of support
pendent lite, however, jurisprudence has held that
inferior courts cannot grant the same since the main
case wherein this remedy may be involved is within
the jurisdiction of the Regional Trial Court.
(Regalado, 2008)
3. PRELIMINARY ATTACHMENT (Rule
57)
ATTACHMENT
Attachment is a provisional remedy by which the
property of an adverse party is taken into legal
custody, either at the commencement of an action
or at any time thereafter, as a security for the
satisfaction of any judgment that may be recovered
by the plaintiff or any proper party (Olib v. Pastoral,
G.R. No. 81120, 1990)
The attachment of the property of the defendant
converts an ordinary action in personam into an
action quasi in rem.. In such case, jurisdiction over
the person of the defendant is not required as long
as the court acquires jurisdiction over the res.
(Biaco v. Countryside Rural Bank, G.R. No. 161417,
2007)
Kinds of attachments
1. PRELIMINARY ATTACHMENT - issued at the
commencement of the action or at any time
before entry of judgment as security for the
satisfaction of any judgment that may be
recovered. The court takes custody of the
property.
2. GARNISHMENT - plaintiff reaches credit
belonging to the defendant and owing to him
from a third person who is a stranger to the
litigation. It does not involve actual seizure of the
property. It simply impounds the property in the
garnishee’s possession and maintains the status
quo until the main action is finally decided.
3. LEVY ON EXECUTION - the writ issued by the
court after judgment by which the property of the
judgment obligor is taken into custody of the
court before the sale of the property on
execution. (Riano 2009 ed)
Two Fold Purposes:
1. To seize the property of the debtor before
final judgment and put the same in custodia
legis even while the action is pending for
the satisfaction of a later judgment (Insular
Bank of Asia and America v. Court of
Appeals, G.R. No. L-61011, 1990)
2. To enable the court to acquire jurisdiction
over the res or the property subject of the
action in cases where service in person or
any other service to acquire jurisdiction
over the defendant cannot be effected
(Philippine Commercial International Bank
v. Alejandro, G.R. No. 175587, 2007)
When it may be availed of:
268
Filing of Application - An application for the
issuance of a writ of attachment may be filed at the
commencement of the action or at any time before
entry of judgment;
It may be applied for by the plaintiff or a defendant
who filed a counterclaim, a cross-claim or a third-
party complaint.
How long does an order of preliminary
attachment remain effective?
The lien continues until the debt is paid, or the sale
is had under execution issued on the judgment or
until the judgment is satisfied, or the attachment
discharged or vacated in the same manner provided
by law. (Lim v. Lazaro, G.R. No. 185734, 2013)
a. GROUNDS FOR ISSUANCE OF
PRELIMINARY ATTACHMENT
1. In an action for the recovery of a specified
amount of money or damages, other than moral
and exemplary, on a cause of action arising from
law, contract, quasi-contract, delict, or quasi-
delict against a party who is about to depart
from the Philippines with the intent to defraud his
creditors;
2. In an action for money or property embezzled or
fraudulently misapplied or converted to his own
use by a public officer, or an officer of a
corporation, or an attorney, factor, broker, agent,
or clerk, in the course of his employment as
such, or by any other person in a fiduciary
capacity, or for a willful violation of duty;
3. In an action to recover the possession of
property unjustly or fraudulently taken, detained
or converted, when the property, or any part
thereof, has been concealed, removed or
disposed of to prevent its being found or taken
by the applicant or an authorized person;
4. In an action against a party who has been guilty
of a fraud in contracting the debt or incurring the
obligation upon which the action is brought, or in
the performance thereof;
5. In an action against a party who has removed or
disposed of his property, or is about to do so,
with intent to defraud his creditors; and
6. In an action against a party who does not reside
in the Philippines, or on whom summons may be
served by publication. (Rule 57, Section 1, Rule
57)
Note: In grounds 1-5, Fraud (in fraud of creditors,
fraudulent detention or removal, embezzlement,
etc.) is an essential requirement.
Note: The fact that the applicant is willing to post
the attachment bond is not itself a ground for the
issuance of the writ of attachment.
Example of Fraud
As a security to the loan contracted, defendant
offered a fake title and a vehicle heavily mortgaged.
He subsequently sold the vehicle and his two condo
units before the case was filed against him. (Liberty
Insurance v. CA, GR No. 104405, 1993)
Removal of Property
The execution of a mortgage in favor of another
creditor is not conceived by the Rules as one of the
means of fraudulently disposing of one’s property.
By mortgaging a piece of property, a debtor merely
subjects it to a lien but ownership is not parted with.
(Adlawan v Torres, GR Nos. 65957-58, 1994)
Upon Whom Summons May Be Served By
Publication
Quote/summarize Rule 14, Sec. 15 and 16
(Extraterritorial service) instead.
Note: Substituted service is the normal mode of
service of summons that will confer jurisdiction on
the court over the person of residents temporarily
out of the Philippines. Hence, the court may acquire
jurisdiction over an action in personam by mere
substituted service without need of attaching the
property of the defendant. (PCIB v Alejandro, supra)
REQUISITES
1. Affidavit – To ensure that the applicant states
the truth by requiring him to allege the presence
of all the legal requirements under oath. The
affidavit is the foundation of the writ and if none
be filed or one be filed wholly fails to set out
some facts required by law to be stated therein,
there is no jurisdiction and the proceedings are
null and void.
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 Contents of the affidavit
1. A sufficient cause of action exists
2. The case is one of those mentioned
in Sec. 1, Rule 57
3. There is no sufficient security for the
claim sought to be enforced by the
action
4. The amount due to the applicant is
as much as the sum for which the
order is granted above all legal
counterclaims. (Rule 57, Section 3)
It is not enough to state that a sufficient cause of
action exists. The applicant must state the facts
showing cause of action.
To convince the court that the case is one of those
mentioned in Section 1 of the Rule, the applicant
must state facts, i.e. place, time, date, to illustrate
the grounds for attachment relied upon.
A bare allegation that an encumbrance of property
is in fraud of creditors does not suffice. Factual
bases for such conclusion must be clearly averred.
(Adlawan v Torres, GR No. 65957-58, 1994)
The amount due to the applicant must be as much
as the sum for which the order is granted above all
legal counterclaims, because if the adverse party
has a counterclaim against the applicant, this may
off-set the claim.
2. Attachment Bond – Executed in favor of the
adverse party in an amount fixed by the court,
the bond is conditioned to pay all the costs
which will be adjudged the adverse party and
all damages he may sustain if the court should
later rule that the applicant is not entitled to the
attachment.
The surety is liable for all damages and not
only for damages sustained during the appeal
as this is its commitment. (Phil. Charter Ins. v
CA, GR No. 88379, 1989)
The writ will not be issued if a real estate mortgage
exists to secure the obligation. (Salgado v. Court of
Appeals, G.R. No. 55381, 1994)
c. ISSUANCE OF CONTENTS OF ORDER
OF ATTACHMENT; AFFIDAVIT OF BOND
An order of attachment may be issued either ex
parte or upon motion with notice and hearing by the
court in which the action is pending, or by the Court
of Appeals or the Supreme Court.
The order must require the sheriff of the court to
attach so much of the property in the Philippines of
the party against whom it is issued (must not be
exempt from execution) as may be sufficient to
satisfy the applicant’s demand, UNLESS such party
makes a deposit or gives a bond, which may be the
amount sufficient to satisfy the applicant’s demand
or the value of the property attached, EXCLUSIVE
of costs.
Several writs may be issued at the same time to the
sheriffs of the courts of different judicial regions.
(Rule 57, Section 2)
Ex parte grant of the writ is allowed because it is
possible that during the course of the hearing, the
part against whom the writ is sought may dispose of
his property or abscond before the writ is issued.
(Filinvest v. Relova, G.R. No. L-50378, 1982)
d. RULE ON PRIOR OR
CONTEMPORANEOUS SERVICE OF
SUMMONS
270
General Rule:
No levy on attachment pursuant to the writ issued
under Section 2, Rule 57 shall be enforced unless it
is preceded, or contemporaneously accompanied,
by service of summons, together with a copy of the
complaint, the application for attachment, the
applicant’s affidavit and bond, and the order and
writ of attachment, on the defendant within the
Philippines.
Exceptions:
1. Summons could not be served personally or
by substituted service despite diligent
efforts,
2. Defendant is a resident of the Philippines
temporarily absent therefrom,
3. Defendant is a non-resident of the
Philippines, or
4. The action is one in rem or quasi in rem.
(Rule 57, Section 5)
THREE STAGES in the grant of Preliminary
Attachment
1. Court issues the order granting the application
2. The writ of attachment is issued pursuant to an
order of the court granting the writ
3. The writ is enforced/implemented
For 1 & 2, it is NOT necessary that jurisdiction over
the person of the defendant be first obtained. But in
the third stage, the court must have acquired
jurisdiction over the defendant, because without
such jurisdiction, the court has no power or
authority to act in any manner against the
defendant.
e. MANNER OF ATTACHING REAL AND
PERSONAL PROPERTY; WHEN PROPERTY
ATTACHED IS CLAIMED BY THIRD PERSON
The sheriff enforcing the writ shall without delay and
with all reasonable diligence attach, to await
judgment and execution in the action, only so much
of the property in the Philippines of the party against
whom the writ is issued as may be sufficient to
satisfy the applicant’s demand. (Rule 57, Section 5)
The sheriff executing the writ shall attach real and
personal property in the following manner:
1. Real property
a. By filing with the registry of deeds a copy of
the order, together with a description of the
property attached and a notice that it is
attached, or that such real property and any
interest therein held by or standing in the
name of such other person are attached; and
b. By having a copy of such order, description,
and notice with the occupant of the property,
if any, or with such other person or his agent
if found within the province.
c. Where the property has been brought under
the operation of either the Land Registration
Act or the Property Registration Decree, the
notice shall contain a reference to the
number of the certificate of title, the volume
and page in the registration book where the
certificate is registered, and the registered
owner or owners thereof.
d. The registrar of deeds must index
attachments filed under this section in the
names of the applicant, the adverse party, or
the person by whom the property is held or in
whose name it stands in the records.
e. If the attachment is not claimed on the entire
area covered by the certificate of title, a
description sufficiently accurate for the
identification of the land or interest to be
affected shall be included in the registration
of such attachment.
271

2. Personal property capable of manual
delivery
By taking and safely keeping it in his custody,
after issuing the corresponding receipt therefor
3. Stocks or shares
By leaving with the president or managing agent
thereof, a copy of the writ, and a notice stating
that the stock or interest of the party against
whom the attachment is issued, is attached
pursuant to the writ
4. Debts and credits
By leaving with the person owing such debts, or
having in his possession or under his control,
such credits or other personal property, or with
his agent, a copy of the writ, and notice that the
debts owing by him to the party against whom
the attachment is issued, and the credits and
other personal property in his possession, or
under his control, belonging to said party, are
attached in pursuance of such writ
5. The interest in the estate of the decedent
By serving the executor or administrator or other
personal representative of the decedent with a
copy of the writ and notice that said interest is
attached.
A copy of said writ of attachment and of said
notice shall also be filed in the office of the clerk
of the court in which said estate is being settled
and served upon the heir, legatee, or devisee
concerned.
6. Property in custodia legis
A copy of the writ of attachment shall be filed
with the proper court or quasi-judicial agency,
and notice of the attachment served upon the
custodian of such property. (Rule 57, Section 7)
Attachment of Debts, Credits, Similar Personal
Property
Those who have in their possession or control any
credits or other similar personal property which
belongs to the party against whom the attachment
is issued, or owing any debts to him, shall be liable
272
to the applicant for the amount of such credits,
debts or other similar property.
Such liability shall accrue from the time of service
upon him of the copy of the writ of attachment and
until the attachment is discharged, or any judgment
recovered by him is satisfied, UNLESS such
property is delivered or transferred, or such debts
are paid, to the clerk, sheriff, or other proper officer
of the court issuing the attachment. (Section 8, Rule
57 of the Rules of Court)
It is not necessary to serve summons upon the
garnishee to acquire jurisdiction upon him. All that is
required is service upon him of the writ of
garnishment.
When attached property may be sold after levy
on attachment and before entry of judgment
1. Property is perishable
2. The interests of all the parties to the action will
be subserved by the sale thereof
The court may order that the property be sold at
public auction. The proceeds will be in custodia
legis. (Rule 57, Section 11)
When property attached is claimed by a third
person
1. The sheriff shall not be bound to keep the
property under attachment UNLESS the
attaching party or his agent, on demand of the
sheriff, shall file a BOND approved by the court
to indemnify the third-party claimant in a sum not
less than the value of the property levied upon.
2. In case of disagreement as to such value, the
same shall be decided by the court issuing the
writ of attachment.
3. No claim for damages for the taking or keeping
of the property may be enforced against the
bond, unless the action therefor is filed within
one hundred twenty (120) days from the date of
the filing of the bond.
4. The sheriff shall not be liable for damages for
the taking or keeping of such property, to any
such third-party claimant, if such bond shall be
filed.
5. Nothing herein contained shall prevent such
claimant or any third person from vindicating his
claim to the property, or prevent the attaching
property claiming damages against a third-party
claimant who filed a frivolous or plainly spurious
claim, in the same or separate action.
When the writ of attachment is issued in favor of the
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
required, and in case the sheriff is sued for
damages as a result of the attachment, he shall be
represented by the Solicitor General, and if held
liable therefor, the actual damages adjudged by the
court shall be paid by the National Treasurer out of
the funds to be appropriated for the purpose. (Rule
57, Section 14)
f. DISCHARGE OF ATTACHMENT AND
COUNTER-BOND
Preliminary attachment shall be discharged when it
is established that:
1. The debtor has posted a counterbond or has
made the requisite cash bond (Rule 57, Section
12);
2. The attachment was improperly or irregularly
issued as where there is no ground for
attachment under Section 1 of this Rule (Rule
57, Section 13);
3. The bond filed is defective or insufficient (Rule
57, Section 13)
4. The attachment is excessive, but the discharge
shall be limited to the excess (Rule 57, Section
13)
5. The property attached is exempt from execution,
hence exempt from preliminary attachment
(Rule 57, Section 2 and 5); or
6. The judgment is rendered against the attaching
creditor (Rule 57, Section 19; Regalado, 2008
ed.)
Note: Attachment is IRREGULAR when any of the
six (6) grounds for attachment are present but
attachment was not made according to the rules.
273
Attachment is IMPROPER when such was made on
a ground not among any of the six (6) grounds for
attachment.
Counter-bond
When filed: after enforcement of the writ
Purpose: To secure the payment of the judgment
due to the plaintiff.
Requirement: Discharge not automatic. There must
be a hearing and an order issued by the court.
Filing of a counter-bond not a waiver to claim
damages
The filing of a counter-bond does not relieve
applicant’s attachment bond’s liability for damages.
Liability attaches if the plaintiff is not entitled to the
attachment because the requirements entitling him
to the writ are wanting, or if the plaintiff has no right
to the attachment because the facts stated in his
affidavit, or some of them are untrue. (Calderon v
IAC, GR No. 74696, 1987)
Discharge of Attachment Improperly Issued
How to obtain discharge: Motion and Hearing is
necessary (Rule 57, Sec. 12 and 13)
When filed: before or after levy or after release of
attached property
Burden of proof: the attaching creditor must show
that the writ was properly issued.
When discharge due to improper issuance not
available:
When the ground for the issuance of the writ forms
the core of the complaint, the writ cannot be
discharged until after trial on the merits. May a
party move for the discharge of the attachment on
the ground of improper issuance even after he has
filed a counterbond?
Yes. The filing of a counterbond is not a waiver to
question the impropriety of the writ. However, when
the ground for the issuance of the writ forms the
core of the complaint, the writ cannot be discharged
until after trial on the merits. This is because the
court cannot allow the litigation of the main issue of
the case prior to trial. (Liberty Insurance Corp. v CA,
GR No. 104405, 1993)
Is the liability of the attaching party on account
of improper, irregular or excessive attachment
limited to the amount of the bond?
NO. Should the bond or deposit given the by the
attaching party be insufficient or fails to fully satisfy
the award, the rules do not prevent the party
against whom attachment was issued from
recovering in the same action the damages
awarded to him from any property of the attaching
party not exempt from execution. However, the
surety’s liability is limited to the amount of the bond.
g. SATISFACTION OF JUDGMENT OUT OF
PROPERTY ATTACHED
Satisfaction of judgment by sheriff
By paying to the judgment obligee the
proceeds of all sales of perishable or other
property sold in pursuance of the order of
the court, necessary to satisfy the
judgment;
If any balance remain due, by selling so much
of the property, real or personal, as may be
necessary to satisfy the balance;
By collecting from all persons having in their
possession credits belonging to the
judgment obligor, or owing debts to the
latter at the time of the attachment of such
credits or debts
Sheriff’s Return
The sheriff, after paying the obligee, shall make a
return in writing to the court of his proceedings and
furnish the parties with copies thereof. (Section 15,
Rule 57 of the Rules of Court)
The sheriff, upon reasonable demand, must return
to the judgment obligor the attached property
remaining in his hands, and any proceeds of the
sale of the property attached not applied to the
judgment. (Section 16, Rule 57 of the Rules of
Court)
Claim against the counter-bond (Section 17,
Rule 57 of the Rules of Court)
The surety becomes liable when the judgment
becomes final. Requisites for recovery include:
274
 1. A demand made upon the surety for the
satisfaction of the judgment;
2. The surety be given notice and summary
hearing in the same actions as to his liability
for judgment under the counter-bond.
4. PRELIMINARY INJUNCTION (Rule 58)
When the injunction sought is mandatory, a writ of
preliminary injunction tends to do more than to
maintain the status quo because it commands the
performance of specific acts and is issued only in
cases of extreme urgency and where the right of the
applicant is clear. (Riano 2009 ed.)
a. DEFINITIONS AND DIFFERENCES:
PRELIMINARY INJUNCTION AND
TEMPORARY RESTRAINING ORDER;
STATUS QUO ANTE ORDER
PRELIMINARY INJUNCTION
It is an order granted at any stage of an action or
proceeding before the judgment or final order,
requiring a party or a court, agency or person to:
1. Refrain from a particular act or acts
(prohibitory injunction); or
2. Perform a particular act or acts (mandatory
injunction). (Section 1, Rule 58 of the
Rules of Court)
A preliminary mandatory injunction is more
cautiously regarded than a mere prohibitive
injunction since, more than its function of preserving
the status quo between the parties, it also
commands the performance of an act. Thus, the
issuance of a writ of preliminary mandatory
injunction is justified only in a clear case, free from
doubt or dispute. (Ngo v Allied Banking Corp, G.R.
No. 177420, 2010)
Status quo
The status quo is the last actual peaceful
uncontested situation (LAPUS) which precedes a
controversy, and its preservation is the office of an
injunctive writ. (Verzosa v. CA, GR No. 119511-13,
1998) It usually refers to the status of the parties
immediately before the filing of the complaint.
What must be alleged
1. The invasion of the right is material and
substantial;
2. The right of the complainant is clear and
unmistakable;
3. There is urgent and paramount necessity
for the writ to prevent serious damage; and
4. Its effect would not be to create a new
relation between the parties which was
arbitrarily interrupted by the defendant.
(Regalado 2008 ed.)
Injunction is resorted to only when there is a
pressing necessity to avoid injurious consequences
which cannot be remedied under any standard
compensation. The sole objective of a writ of
preliminary injunction is to preserve the status quo
until the merits of the case can be heard fully.
(Uniliver v CA, GR No. 119280, 2006)
TEMPORARY RESTRAINING ORDER (TRO)
1. It is a temporary or provisional order to
maintain the subject of controversy in
status quo until the hearing of an
application for a temporary injunction.
2. Unlike the injunction, it is intended as a
restraint upon the defendant until the
275
 propriety of granting an injunction
pendente lite can be determined, and it
goes no further than to preserve the status
quo until such determination. Accordingly,
the grant, denial, or lifting thereof does not
in any way pre-empt the court’s power to
decide the issue in the main action which
is the injunction suit. (Regalado 2008 ed.)
3. The court to which the application for
preliminary injunction was made may issue
a TRO, effective for 20 days from notice to
the party or person sought to be enjoined,
if it shall appear from facts shown by
affidavits or by the verified application that
great or irreparable injury would result to
the applicant before the matter can be
heard on notice.
4. Meanwhile, the executive judge of a
multiple-sala court or the presiding judge
of a single-sala court may issue ex parte a
TRO effective for seventy-two (72) hours
from issuance if:
a. The matter is of extreme urgency;
and
b. The applicant will suffer grave
injustice or irreparable injury.
(Rule 58, Section 5)
REQUISITES
1. Verified application showing facts entitling the
applicant to the relief demanded
Application must be verified
The Sandiganbayan cannot validly issue a TRO on
the basis of a communication (letter) which is not
verified. (Republic v Sandiganbayan, GR No.
89553, 1993)
2. Injunction bond – in an amount fixed by the court.
Purpose
To compensate the party against to whom the
injunction is issued for all damages which may
sustain by reason of the injunction or temporary
restraining order if the court should finally decide
that the applicant was not entitled thereto.
The application for TRO shall be acted upon only
after a summary hearing conducted within twenty
four (24) hours after the sheriff’s return of service
and/or the records are received by the branch
selected by raffle and to which the records shall be
transmitted immediately.
If filed in a multiple-sala court, the application shall
be raffled only after notice and in the presence of
the adverse party.
Prior or contemporaneous service of summons
Notice shall be preceded or contemporaneously
accompanied by service of summons, together with
a copy of the complaint or initiatory pleading and
the applicant’s affidavits and bond, upon the
adverse party in the Philippines.
Exception: where the summons could not be served
personally or by substituted service despite diligent
efforts, or the adverse party is a resident of the
Philippines temporarily absent therefrom or is a
non-resident thereof. (Rule 58, Section 4)
STATUS QUO ANTE ORDER
An order that directs the maintenance of the
condition prevailing before the promulgation of the
assailed decision or the status quo ante.
The Rules of Court do not sanction the issuance of
a status quo ante order. But in cases where the
SQAO is issued by a court or agency other than the
Supreme Court, the SQAO is deemed to have the
“nature of a temporary restraining order,” and thus
must comply with the requisites for a TRO in
applicable cases. Thus, it cannot exceed the 20
day term and cannot be “indefinite.” Procedural
requirements of hearing and notice must also be
complied with. (See Repol v. Comelec, GR
276
161418, 2004; Llamzon v. PEZA Board of Inquiry, Purpose
GR 167445, 2007)

The Supreme Court, in jurisprudence, may issue

SQAOs without restriction.

The Supreme Court has issued a status quo order

which, as the very term connotes, is merely
intended to maintain the last, actual, peaceable and To prevent To preserve To maintain
uncontested state of things which preceded the future injury the status quo the status quo
controversy. This was resorted to when the and maintain ante until the ante or the
projected proceedings in the case made the the status quo hearing of the condition
conservation of the status quo desirable or for the duration application for prevailing
essential, but the affected party neither sought such of the preliminary before the
relief nor did the allegations in his pleading proceedings injunction controversy
sufficiently make out a case for a temporary until further
restraining order. The status quo order was thus orders by the
issued motu proprio or on equitable considerations. Supreme
Also, unlike a temporary restraining order or a Court.
preliminary injunction, a status quo order is more in
the nature of a cease and desist order, since it does
not direct the doing or undoing of acts as in the
case of a prohibitory or mandatory injunctive relief.
The further distinction is provided by the present
amendment in the sense that, unlike the amended
rule on restraining orders, a status quo order does
not require the posting of a bond. (Regalado, Requisites
Remedial Law Compendium vol. I, 734-35)

COMELEC may issue a status quo ante order.

(Dimayuga v. COMELEC, G.R. No. 174763, 2007)

It is an interlocutory order. (Dimayuga v.

COMELEC, G.R. No. 174763, April 24, 2007)
(a) There must Same with If issued by
The “status quo” is the last actual peaceable be a verified preliminary the Supreme
uncontested situation, which precedes a application; injunction. Court –
controversy. (Philippine Economic Zone Authority v. (b) The Where the
Vianzon, G.R. No. 131020, 2000) application TRO shall be conservation
must show acted upon of the status
facts entitling only after the quo is
the applicant to sheriff’s return desirable or
the relief of service essential…
demanded; and/or the (Regalado,
(c) A bond must records are Remedial Law
be filed, unless received by Compendium
exempted in the the branch vol. I, 734-35)
PRELIMINARY TEMPORARY STATUS QUO
court where the selected by
INJUNCTION RESTRAININ ANTE ORDER
action is raffle. If issued by a
G ORDER
pending; and lower court –
(d) Prior notice must comply
and hearing for with requisites
the for a TRO

277
party/persons under the RTC having territorial jurisdiction The Rules of
sought to be Rules. over the act sought to be Court do not
enjoined. enjoined or the principal office of state where to
the corporation whose acts are file an
sought to be enjoined; Court of application for
Appeals; Supreme Court. status quo
ante order.
However, but
from the
definition of
When to File status quo as
the last
peaceable
uncontested
status in the
case, when a
court issues a
TRO to
At any stage of When great or At any stage of maintain the
an action or irreparable an action or status quo, it
proceeding injury would proceeding refers to the
prior to the result to the prior to the status quo
judgment or applicant judgment or ante.
final order before the final order.
matter can be
heard on
notice.

When the
matter is of
extreme Period of Effectivity
urgency and
the applicant
will suffer
grave injustice
and
irreparable
injury, the
judge may Until the final RTC – 20 Until the final
issue ex parte disposition of days, non- disposition of
a TRO the principal extendible the principal
effective for 72 action (including the action or as
hours from original 72 may be
issuance. hours) directed by the
Supreme
CA – may be Court.
effective for 60
days from
service on the
party or
person sought
Where to File to be enjoined

278
 2. May perpetually restrain the party or
SC – may be
person enjoined from the commission or
effective until
continuance of the act or acts or
further orders
confirming the preliminary mandatory
injunction. (Rule 58, Section 9)

c. KINDS OF INJUNCTION
WHEN WRIT MAY BE ISSUED
1. PRELIMINARY INJUNCTION - An order granted Preliminary injunction is granted at any stage of the
at any stage of an action or proceeding prior to the proceedings prior to the judgment or final order.
judgment or final order: (Section 1, Rule 58 of the Rules of Court)

1. Requiring a party or a court, agency or a

person to refrain from a performance of a Examples of when preliminary injunction may
particular act or acts (preventive or be issued based on jurisprudence:
prohibitive injunction); or
2. Also requiring the performance of a
particular act or acts (mandatory
injunction). (Rule 58, Section 1);
(Regalado 2008 ed.)

1. In petitions for relief from

judgment entered through fraud,
accident, mistake, or excusable
negligence;
2. In actions for certiorari,
prohibition, and mandamus;
3. In actions for annulment of
judgments obtained through
fraud;
4. In actions for annulment of
judgments which are not patent
nullities (i.e. want of jurisdiction,
2. FINAL INJUNCTION lack of due process of law);
5. To restrain continued breach of
valid negative obligation;
6. To enjoin repeated trespass of
land;
7. To restrain the city from
proceeding with abatement of
1. Granted if, after the trial of the action, it nuisance per accidens before it
appears that the applicant is entitled to has been judicially declared as
have the act or acts complained of such;
permanently enjoined

279
 8. To restrain voting of disputed ground has been denied (Brocka
shares of stocks; and v. Enrile, G.R. Nos. 69863-65,
9. To restrain the sheriff from selling 1990)
property on execution not
belonging to judgment debtor.

Examples of when preliminary injunction

was not issued:
Generally, a criminal prosecution may not be
restrained or stayed by injunction, preliminary
or final, except:

1. To take property out of the

possession of one party and
place it in another whose title is
1. To afford adequate protection to not clearly established;
the constitutional rights of the 2. When action for damages would
accused; adequately compensate the
2. When necessary for the orderly injuries caused;
administration of justice or to 3. To prevent directors from
avoid oppression or multiplicity of discharging their office and
action; restoring former directors; and
3. Where there is a prejudicial 4. To restrain criminal prosecution
question which is sub judice; where the Ombudsman had
4. When the acts of the officers are authorized the special prosecutor
without or in excess of authority; to conduct a preliminary
5. When double jeopardy is clearly injunction or to file an injunction.
apparent; 5. To enjoin the collection of
6. When the prosecution is under an national internal revenue taxes
invalid law, ordinance, or but not local taxes (Angeles City
regulation; v. Angeles City Electric
7. Where the court has no Corporation, G.R. No. 166134,
jurisdiction over the offense; 2010)
8. Where it is a case of persecution
rather than prosecution;
9. Where charges are manifestly
false and motivated by lust or
vengeance; and
10. When there is clearly no prima
facie case against the accused
and a motion to quash on that

280
No court shall issue a temporary restraining order or
writ of injunction against any freeze order issued by
the Anti-Money Laundering Council except the
Court of Appeals or the Supreme Court. (Section
10, RA 9160)
e. GROUNDS FOR ISSUANCE OF
PRELIMINARY INJUNCTION
A preliminary injunction may be granted when it is
established:
1. That the applicant is entitled to the relief
demanded, and the whole or part of such
relief consists in restraining the commission
or continuance of the act or acts
complained of, or in requiring the
performance of an act or acts, either for a
limited period or perpetually;
2. That the commission, continuance, or non-
performance of the act or acts complained
of during the litigation would probably work
injustice to the applicant; or
3. That a party, court, agency or a person is
doing, threatening, or is attempting to do, or
is procuring or suffering to be done, some
act or acts probably in violation of the rights
of the applicant respecting the subject of the
action or proceeding, and tending to render
the judgment ineffectual. (Section 3, Rule
58 of the Rules of Court)
Requisites for the issuance of a writ of
preliminary injunction/TRO based on
jurisprudence:
The following requisites must be proved before a
writ of preliminary injunction will issue:
1. The applicant must have a clear and
unmistakable right to be protected, that is, a
right in esse;
2. There is a material and substantial invasion
of such right;
3. There is an urgent need for the writ to
prevent irreparable injury to the applicant;
and
4. No other ordinary, speedy, and adequate
remedy exists to prevent the infliction of
irreparable injury. (Incorporators Of
Mindanao Institute Inc., et al v. The United
Church Of Christ In The Philippines, G.R.
No.  171765, 2012)
Mere prima facie evidence is needed to establish
the applicant’s rights or interests in the subject
matter of the main action. (Republic v. Evangelista,
G.R. No. 156015, 2005)
Entitled to Relief Demanded
When there is a clear finding that the applicant is
indeed the owner of the land in dispute – the
applicant is entitled to the benefit of injunctive relief
to remove intruders (Sps. Dela Rosa v Heirs of
Juan Valdez, GR No. 159101, 2011)
The writ will not issue of documents show that the
right of the applicant is disputed, i.e. existence of
lien on properties sought to be released from the
mortgage. (Ngo v Allied Banking Corp, supra.)
A writ of preliminary injunction cannot be issued
without a prior notice and hearing. It cannot be
issued ex parte. (Rule 58, Section 5)
Injunction contemplates acts being committed or
about to be committed; thus, it does not lie against
acts already consummated. (Regalado, 2008 ed.)
It also neither protects contingent or future rights
nor lies to enforce an abstract right. (Cerenio v.
Dictado G.R. No. 81550, 1988)
f. GROUNDS FOR OBJECTION TO, OR
FOR THE DISSOLUTION OF INJUNCTION OR
RESTRAINING ORDER
281

The application for injunction or restraining
order:
1. May be denied upon a showing of its
insufficiency;
2. May be denied or, if granted, dissolved, on
other grounds upon affidavits of the party or
person enjoined, which may be opposed by
the applicant also by affidavits;
3. May further be denied or, if granted,
dissolved, if it appears after hearing that:
a. Although the applicant is entitled to
the injunction or restraining order, the
issuance or continuance thereof, as
the case may be, would cause
irreparable damage to the party or
person enjoined while the applicant
can be fully compensated for such
damages as he may suffer; and
b. The former files a bond in an amount
fixed by the court conditioned that he
will pay all damages which the
applicant may suffer by the denial or
dissolution of the restraining order.
If it appears that the extent of the preliminary
injunction or restraining order granted is too great, it
may be modified. (Rule 58, Section 6)
Examples of when TRO may not be issued
based on jurisprudence:
1. To take property out of the possession of one
party and place it in another whose title is not
clearly established;
2. When action for damages would adequately
compensate the injuries caused;
3. To prevent directors from discharging their
office and restoring former directors; and
4. To restrain criminal prosecution where the
Ombudsman had authorized the special
prosecutor to conduct a preliminary
injunction or to file an injunction.
5. To enjoin the collection of national internal
revenue taxes but not local taxes. (Angeles
City v. Angeles City Electric Corporation,
G.R. No. 166134, 2010)
6. National government projects covered by the
Build-Operate-Transfer Law.
g. DURATION OF A TEMPORARY
RESTRAINING ORDER (TRO)
2 Kinds of TRO:
1. 20-day TRO
It shall be granted if it shall appear from facts shown
by affidavits or by the verified application that great
or irreparable injury would result to the applicant
before the matter can be heard on notice and
hearing on the application for preliminary injunction.
It shall be granted by the court to which the
application for preliminary injunction was made and
is effective for the said period, to be counted from
notice to the person or party sought to be enjoined.
Within this period, the court must
1. Order said party or person to show
cause, at a specified time and place,
why the injunction should not be
granted;
282
 2. Determine within the same period
whether the preliminary injunction
should be granted; and
3. Accordingly issue the corresponding
order.

The TRO shall be effective for sixty (60) days if

issued by the CA or a member thereof.

The rule against the non-extendibility of the twenty

(20) day effectivity of a temporary restraining order
is absolute if issued by a Regional Trial Court. The
failure of the trial court to fix a period in the
temporary restraining order does not convert it to a
preliminary injunction. Where there is an omission
to fix the period, the twenty (20) day period is
deemed incorporated in the order. (Bacolod City
Water District v. Labayen, G.R. No. 157494, 2004)

2. 72-hour TRO The TRO shall be effective until further notice if

It shall be granted if: (i) the matter is of extreme issued by the Supreme Court or a member thereof.
urgency; and (ii) the applicant will suffer grave (Rule 58, Section 5)
injustice and irreparable injury. It shall be granted
by the executive judge of a multiple-sala court or When injury irreparable
the presiding judge of a single-sala court, who shall
immediately comply with Sections 4 and 5, Rule 58
as to service of summons and the documents to be
served therewith.

The effectivity of the TRO starts from its issuance,

not service. Within this period, the judge before
whom the case is pending shall conduct a summary
hearing to determine whether the TRO shall be
extended until the application for preliminary
injunction can be heard.
Effectivity of TRO
In no case shall the total period of effectivity of the
TRO exceed twenty (20) days, including the original
seventy two (72) hours so provided.
If it is of such constant and frequent recurrence
that no fair or reasonable redress can be had
therefor in a court of law (Gilchrist v. Cuddy,
G.R. No. L-9356, 1915); or
Where there is no standard by which their
amount can be measured with reasonable
accuracy—that is, it is not susceptible of
mathematical computation. (Regalado 2008
ed.)

In the event that the application for preliminary

injunction is denied or not resolved within the said
period, the TRO is deemed automatically vacated.
The effectivity of a TRO is not extendible without
need of any judicial declaration to the effect and no
court shall have authority to extend or renew the
same on the same ground for which it was issued.
Respondents assert that foreclosure of their
property may cause irreparable damage, thus
justifying the issuance of the writ of preliminary
injunction. The SC held that foreclosure of
mortgaged property is not an irreparable damage
that will merit for the debtor-mortgagor the
extraordinary provisional remedy of preliminary

283
injunction as “all is not lost for defaulting mortgagors
whose properties were foreclosed by creditors-
mortgagees.” The respondents will not be deprived
outrightly of their property, given the right of
redemption granted to them under the law.
Moreover, in extrajudicial foreclosures, mortgagors
have the right to receive any surplus in the selling
price. Thus, if the mortgagee is retaining more of
the proceeds of the sale than he is entitled to, this
fact alone will not affect the validity of the sale but
will give the mortgagor a cause of action to recover
such surplus. (Solid Builders, Inc v China Banking
Corporation, 695 SCRA 103, 2013)
h. IN RELATION TO RA 8975, BAN ON
ISSUANCE OF TRO OR WRIT OF
INJUNCTION IN CASES INVOLVING
GOVERNMENT INFRASTRUCTURE
PROJECTS
Except for the Supreme Court, no court shall issue
any TRO, preliminary injunction, or preliminary
mandatory injunction against the government, or
any of its subdivisions, officials, or any person or
entity, whether public or private, acting under the
government’s discretion, to restrain, prohibit, or
compel the following acts:
1. Acquisition, clearance, and development of
the right-of-way and/or site or location of
any national government project;
2. Bidding or awarding of contract/project of
the national government;
3. Commencement, prosecution, execution,
implementation, or operation of any such
contract or project;
4. Termination or rescission of any such
contract/project; and
5. The undertaking or authorization of any
other lawful activity necessary for such
contract/project.
This prohibition shall apply in all cases, disputes,
or controversies instituted by a private party,
including but not limited to cases filed by bidders or
those claiming to have rights through such bidders
involving such contract/project.
This prohibition shall not apply:
1. When the matter is of extreme urgency
involving a constitutional issue, such that
unless a TRO is issued, grave injustice and
irreparable injury will arise; and
2. Upon the filing of a bond by the applicant,
the amount which is to be fixed by the court
and shall accrue in favor of the government
if the court should finally decide that the
applicant was not entitled to the relief
sought. (Section 3 of R.A. 8975)
Any TRO, preliminary injunction, or preliminary
mandatory injunction issued in violation of Sec. 3 is
void and of no force and effect. (Section 4 of R.A.
8975)
Any judge who shall issue the same in violation of
Section 3 shall suffer the penalty of suspension of
at least 60 days without pay, in addition to any civil
or criminal liabilities he or she may incur under
existing laws. (Section 6 of R.A. 8975)
i. RULE ON PRIOR CONTEMPORANEOUS
SERVICE OF SUMMONS IN RELATION TO
ATTACHMENT
The application for a writ of preliminary injunction
may or may not be included in a complaint or any
initiatory pleading. In any event, the notice of
hearing on the said application shall be preceded or
284
contemporaneously accompanied by service of
summons, together with a copy of the complaint or
initiatory pleading and the applicant’s affidavits and
bond, upon the adverse party in the Philippines.
But, where the summons could not be served
personally or by substituted service despite diligent
efforts, or the adverse party is a resident of the
Philippines temporarily absent therefrom or is a
non-resident thereof, the requirements of prior or
contemporaneous service of summons shall not
apply. (Rule 58, Section 4)
Duty of the court that issued the writ:
The trial court, the Court of Appeals, the
Sandiganbayan or the Court of Tax Appeals that
issued the writ of preliminary injunction against a
lower court, board, officer, or quasi-judicial agency
shall decide the main case or petition six (6) months
from the issuance of the writ. (A.M. No. 07-7-12-SC,
Effective December 27, 2007)
5. RECEIVERSHIP (Rule 59)
Purpose
To protect and preserve the rights of the parties
during the pendency of the main action, during the
pendency of an appeal, or as an aid in the
execution of a judgment when the writ of execution
has been returned unsatisfied. (Rule 59, Section 1)
Receivership is aimed at the preservation of, and at
making more secure, existing rights. It cannot be
used as an instrument for the destruction of those
rights. (Arranza v. B.F. Homes, Inc., 33 SCRA 799,
2000)
Property subject of receivership must be under
litigation.
RECEIVER
A receiver is a person appointed by the court in
behalf of all the parties to the action for the purpose
of preserving and conserving the property in
litigation and prevent its possible destruction or
dissipation, if it were left in the possession of any of
the parties. The appointment of a receiver is not a
matter of absolute right. It depends upon the sound
discretion of the court and is based upon the facts
and circumstances of each case. (Commodities
Storage & Ice Plant Corporation v. Court of
Appeals, 274 SCRA 439)
A receiver is not an agent or representative of any
party to the action. He is an officer of the court
exercising his functions in the interest of neither
plaintiff nor defendant, but for the common benefit
of all parties in the interest. He performs his duties
“subject to the control of the Court,” and every
question involved in the receivership may be
determined by the court taking cognizance of the
receivership proceedings. (Pacific Merchandising
Corporation v. Consolacion Insurance & Surety Co.,
73 SCRA 564, 1976)
a. CASES WHEN RECEIVER MAY BE
APPOINTED
b. REQUISITES
Upon a verified application, one or more receivers
of the property subject of the action or proceeding
may be appointed by the court where the action is
pending, or by the Court of Appeals or by the
Supreme Court, or a member thereof, in the
following cases:
1. When it appears from the verified application
and such other proof as the court may require,
that the party applying for the appointment of a
receiver has an interest in the property or fund
which is the subject of the action or proceeding,
and that such property or fund is in danger of
being lost, removed, or materially injured
unless a receiver be appointed to administer
and preserve it;
2. When it appears in an action by the mortgagee
for the foreclosure of a mortgage that the
property is in danger of being wasted or
dissipated or materially injured, and that its
value is probably insufficient to discharge the
285
 mortgage debt, or that the parties have so
stipulated in the contract of mortgage;
3. After judgment, to preserve the property
during the pendency of an appeal, or to
dispose of it according to the judgment, or to
aid execution when the execution has been
returned unsatisfied or the judgment obligor
refuses to apply his property to the satisfaction
of the judgment or otherwise carry the
judgment into effect; or
4. Whenever in other cases it appears that the
appointment of a receiver is the most
convenient and feasible means of
preserving, administering, or disposing the
property in litigation.
Sec. 1(d), Rule 59 of the Rules of Court is couched
in general terms and broad in scope, encompassing
instances not covered by the other grounds
enumerated under the said section. However, in
granting applications for receivership on the basis of
this section, courts must remain mindful of the basic
principle that receivership may be granted only
when the circumstances so demand, either because
the property sought to be placed in the hands of a
receiver is in danger of being lost or because they
run the risk of being impaired, and that being a
drastic and harsh remedy, receivership must be
granted only when there is a clear showing of
necessity for it in order to save the plaintiff from
grave and immediate loss or damage. (Tantano v.
Caboverde, G.R. No. 203585, 2013)
During the pendency of an appeal, the appellate
court may allow an application for the appointment
of a receiver to be filed in and decided by the court
of origin and the receiver appointed to be subject to
the control of said court. (Rule 59, Section 1)
c. REQUIREMENTS BEFORE ISSUANCE
OF AN ORDER
1. Verified application for the appointment
of a receiver based on any of the grounds
enumerated in Section 1, Rule 59; and
2. Bond filed by the applicant and executed
to the party against whom the application
is presented, in an amount to be fixed by
the court, to the effect that the applicant
will pay such party all damages the latter
may sustain by reason of the appointment
of such receiver in case the applicant
should have procured the same without
sufficient cause.
The court may, in its discretion, at any time after the
appointment, require an additional bond as further
security for such damages. (Rule 59, Section 2)
Procedure for Appointment of a Receiver
1. A verified application must be filed by the party
applying for the appointment of a receiver.
2. The applicant must have an interest in the
property or funds subject of the action.
3. The applicant must show that the property or
funds is in danger of being lost, removed,
materially altered, wasted or dissipated or there
is a need to preserve or administer the
property, or that all the grounds justifying the
appointment of a receiver exist.
4. The application must be with notice and set for
hearing
5. The applicant must post a bond in favor of the
party against whom the application is
presented before the court issues the
appointment of a receiver.
6. Before entering upon his duties, the receiver
must be sworn to perform his duties faithfully
and shall file a bond. (Regalado, 2012 ed.)
286

d. GENERAL POWERS OF A RECEIVER
Subject to the control of the court in which the
action is pending, a receiver shall have the power
to:
1. Bring and defend actions in his own name in
his capacity as receiver;
2. Take and keep possession of the property
subject of the controversy;
3. Receive rents;
4. Collect debts due to himself as receiver or to
the fund, property, estate, person, or
corporation of which he is the receiver;
5. Compound for and compromise the same;
6. Make transfers;
7. Pay outstanding debts;
8. Divide the money and other property that shall
remain among the persons legally entitled to
receive the same; and
9. Generally to do such acts respecting the
property as the court may authorize.
But funds in the hands of a receiver may
be invested only by order of the court upon
the written consent of ALL the parties to
the action.
No action may be filed by or against a receiver
without leave of the court which appointed him.
(Rule 59, Section 6)
Neither party to the litigation should be appointed as
a receiver without the consent of the other.
(Alcantara v. Abbas, G.R. No. L-14890, 1963)
e. THREE KINDS OF BONDS in
RECEIVERSHIP
1. Applicant’s bond
Before issuing the order appointing a receiver, the
court shall require the applicant to file a bond
executed to the party against whom the application
is presented, in an amount to be fixed by the court,
to the effect that the applicant will pay such party all
damages he may sustain by reason of the
appointment of such receiver in case the applicant
shall have procured such appointment without
sufficient cause.
The court may, in its discretion, at any time after the
appointment, require an additional bond as further
security for such damages. (Rule 59, Section 2)
2. Receiver’s bond
Before entering upon his duties, the receiver shall
be sworn to perform them faithfully, and shall file a
bond, executed to such person and in such sum as
the court may direct, to the effect that he will
faithfully discharge his duties in the action and obey
the orders of the court. (Rule 59, Section 4)
3. Counterbond
The application may be denied, or the receiver
discharged, when the adverse party files a bond
executed to the applicant, in an amount to be fixed
by the court, to the effect that such party will pay the
applicant all damages he may suffer by reason of
the acts, omissions, or other matters specified in the
application as ground for such appointment. (Rule
59, Section 3, Rule 59)
Liability for refusal or neglect to deliver property
to receiver
A person who refuses or neglects, upon reasonable
demand, to deliver property subject or involved in
the action or proceeding, or in case of
disagreement, as determined and ordered by the
court, may be punished for contempt and shall be
liable to the receiver for the money or the value of
the property and other things so refused or
287
neglected to be surrendered, together with all the
damages that may have been sustained by the
party or parties entitled thereto as a consequence of
such refusal or neglect. (Rule 59, Section 7)
f. TERMINATION OF RECEIVERSHIP
the gist of the replevin action is the right of the
plaintiff to obtain possession of specific personal
property by reason of his being the owner or of his
having a special interest therein. (BA Finance
Corporation v. Court of Appeals, 258 SCRA 102,
1996)

Whenever the court, motu proprio or on motion of a. WHEN WRIT MAY BE ISSUED
either party, shall determine that the necessity for a
receiver no longer exists, it shall, after due notice to
all interested parties and hearing:

1. Settle the accounts of the receiver;

2. Direct the delivery of the funds, and other
property in his possession to the person
adjudged to be entitled to receive them;
and b. REQUISITES
3. Order the discharge of the receiver from
further duty as such. Must be applied for:

The court shall allow the receiver such reasonable
compensation as the circumstances of the case
warrant, to be taxed as costs against the defeated
party, or apportioned, as judgment requires. (Rule
59, Section 8)
6. REPLEVIN (Rule 60)
REPLEVIN
Replevin, broadly understood, is both a form of
principal remedy and of a provisional relief. It may
refer either to the action itself, i.e. to regain the
possession of personal chattels being wrongfully
detained from the plaintiff by another, or to the
provisional remedy that would allow the plaintiff to
retain the thing during the pendency of the action
and hold it in pendente lite. (Tillson v. Court of
Appeals, 197 SCRA 587, 1991)
The action is primarily possessory in nature and
determines nothing more than the right of
possession. Replevin is so usually described as a
mixed action, being partly in rem and partly in
personam – in rem insofar as the recovery of
specific property is concerned, and in personam as
regards to damages involved. As an “action in rem”
1. At the commencement of the action; or
2. At any time before defendant files answer.
3. Therefore, there can be no replevin before
the appellate courts. (Rule 60, Section 1)
4. The applicant need not be the owner of the
property. It is enough that he has a right to
its possession. (Yang v. Valdez, G.R. No.
73317, 1989)
A chattel mortgagee may maintain an action for
replevin. Where the mortgage authorizes the
mortgagee to take possession of the property on
default, he may maintain an action to recover
possession of the mortgaged chattels from the
mortgagor or from any person in whose hands he
may find them. This is irrespective of whether the
mortgage contemplates a summary sale of the

288
property or foreclosure by court action. (Agner v.
BPI Family Savings Bank, G.R. No. 182963, June
3, 2013)
c. AFFIDAVIT AND BOND; REDELIVERY
BOND
Affidavit and Bond
Application for replevin must be filed at the
commencement of the action or at any time before
defendant answers.
Application must contain an affidavit executed by
the applicant or some other person who personally
knows of the facts the matters required under the
Rules, which shows:
and requiring the sheriff forthwith to take such
property into his custody. (Rule 60, Section 3)
Redelivery bond
If the adverse party objects to the sufficiency of the
applicant’s bond, or of the surety or sureties
thereon, he cannot immediately require the return of
the property.
But if he does not so object, he may, at any time
before the delivery of the property to the applicant,
require the return thereof, by filing with the court
where the action is pending a redelivery bond—
that is, a bond executed to the applicant:

1. In double the value of the property as

1. That the applicant is the owner of the stated in the applicant’s affidavit for
property claimed, particularly describing it, or the delivery of the property to the
is entitled to the possession thereof; applicant, if such delivery be
2. That the property is wrongfully detained by adjudged; and
the adverse party, alleging the cause of 2. For the payment of such sum to him
detention thereof according to the best of his as may be recovered against the
knowledge, information, and belief; adverse party; and
3. That the property has not been distrained or 3. By serving a copy of such bond on the
taken for a tax assessment or a fine pursuant applicant.
to law, or seized under a writ of execution or
preliminary attachment, or otherwise placed
under custodia legis, or if so seized, that it is
exempt or should be released from such
seizure or custody; and
4. The actual market value of the property.

Applicant must give a bond, executed to the

adverse party and double the value of the property. d. SHERIFF’S DUTY IN THE
(Rule 60, Section 2) IMPLEMENTATION OF THE WRIT; WHEN
PROPERTY IS CLAIMED BY THIRD PARTY
The replevin bond is for the return of the property to
the adverse party if such return be adjudged, and
payment to the adverse party of such sum as he
may recover from the applicant in the action.

Upon the filing of such affidavit and approval of the

bond, the court shall issue an order and
corresponding writ of replevin describing the
personal property alleged to be wrongfully detained

289
Upon receiving the order of the court, the sheriff
must serve a copy thereof on the adverse party,
together with a copy of the application, affidavit, and
bond.
If the property is in the possession of the adverse
party or his agent, the sheriff must forthwith take it
and retain it in his custody.
If the property or any part thereof be concealed in a
building or enclosure, the sheriff must demand its
delivery, and if it not be delivered, he must cause the
building or enclosure to be broken open and take the
property into his possession.
After the sheriff has taken possession of the
property, he must keep it in a secure place and shall
be responsible for its delivery to the party entitled
thereto upon receiving his fees and necessary
expenses for taking and keeping the same. (Rule 60,
Section 4)
If within five (5) days after the taking of the property
by the sheriff, the adverse party:
1. Does not object to the sufficiency of the bond, or
of the surety or sureties contained thereon; or
2. So objects, and the court affirms its approval of
the applicant’s bond or approves a new bond; or
3. If the adverse party requires the return of the
property but his bond is objected to and found
insufficient and he does not forthwith file an
approved bond,the property shall be delivered to
the applicant. (Rule 60, Section 6)
The rules provide that property seized under a writ of
replevin is not to be delivered immediately to the
plaintiff. Under Section 6, Rule 60, the Sheriff should
have waited no less than 5 days in order to give the
complainant an opportunity to object to the
sufficiency of the bond. (Hao v. Andres, A.M. No. P-
07-2384, 2008)
What is the effect of writ of replevin that has
been improperly served?
Service of the writ upon the adverse party is
mandatory in line with the constitutional guaranty on
procedural due process and as safeguard against
unreasonable searches and seizures. The writ or
order of replevin should comply with all the
requirements as to matters of form or contents
prescribed by the Rules of Court. The writ must also
satisfy proper service in order to be valid and
effective: i.e. it should be directed to the officer who
is authorized to serve it; and it should be served
upon the person who not only has the possession or
custody of the property involved but who is also a
party or agent of a party to the action. Consequently,
a trial court is deemed to have acted without or in
excess of its jurisdiction with respect to the ancillary
action of replevin if it seizes and detains a personalty
on the basis of a writ that was improperly served,
such as what happened in this case.
The proper remedy of the person being served with
the writ should be to file a motion to quash the writ of
replevin or a motion to vacate the order of seizure. It
now becomes imperative for the trial court to restore
the parties to their former positions by returning the
seized property to petitioner and by discharging the
replevin bond filed by respondent. (Rivera v. Vargas,
G.R. No. 165895, 5 June 2009, 588 SCRA 529)
Where property claimed by third person
If the property taken is claimed against whom
replevin had been issued or his agent, and such
person makes an affidavit of his title thereto, or right
to the possession thereof, stating the grounds of
such right or title, and serves such affidavit upon the
sheriff while the latter has possession of the
attached property, and a copy thereof upon the
applicant:
1. The sheriff shall not be bound to keep the
property under replevin, unless the applicant or
his agent, on demand of the sheriff, shall file a
bond approved by the court to indemnify the
third-party claimant in a sum not less than the
value of the property under replevin as provided
in Section 2, Rule 60 of the Rules of Court.
2. In case of disagreement as to such value, the
court shall determine the same.
3. No claim for damages for the taking or keeping
of the property may be enforced against the
bond, unless the action therefor is filed within
120 days from the date of the filing of the bond.
4. The sheriff shall not be liable for damages, for
the taking or keeping of such property, to any
such third-party claimant, if such bond shall be
filed.
5. Nothing herein contained shall prevent such
claimant or any third person from vindicating his
claim to the property, or prevent the attaching
property claiming damages against a third-party
claimant who filed a frivolous or plainly spurious
claim, in the SAME or SEPARATE action.
When the writ of replevin is issued in favor of the
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
required, and in case the sheriff is sued for damages
as a result of the replevin, he shall be represented
by the Solicitor General, and if held liable therefor,
the actual damages adjudged by the court shall be
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paid by the National Treasurer out of the funds to be b. Requisites of action for declaratory
appropriated for the purpose. (Rule 60, Section 7) relief
c. When court may refuse to make
END OF TOPIC judicial declaration
d. Conversion to ordinary action
e. Proceedings considered as similar
remedies

i. Reformation of an instrument
ii. Consolidation of ownership
iii. Quieting of title to real property
S. SPECIAL CIVIL ACTION

1. NATURE OF SPECIAL CIVIL 6. REVIEW OF JUDGMENTS AND

ACTIONS FINAL ORDERS OR RESOLUTION
2. ORDINARY CIVIL ACTIONS OF THE COMELEC AND COA
VERSUS SPECIAL CIVIL ACTIONS
3. JURISDICTION AND VENUE
4. INTERPLEADER

a. Application of Rule 65 under Rule 64

b. Distinction in the application of Rule
65 to judgments of the Comelec and
COA and the application of Rule 65 to
a. Requisites for interpleader other tribunals, persons and officers
b. When to file

7. CERTIORARI, PROHIBITION AND

5. DECLARATORY RELIEFS AND MANDAMUS
SIMILAR REMEDIES

a. Definitions and distinctions

a. Who may file the action

291
 i. Certiorari distinguished from a. Matters to allege in complaint for
appeal by certiorari expropriation
ii. Prohibition and mandamus b. Two stages in every action for
distinguished from injunction expropriation
c. When plaintiff can immediately enter
into possession of the real property, in
relation to R.A. 8974
d. New system of immediate payment of
initial just compensation
e. Defenses and objections
b. Requisites f. Order of expropriation
c. When petition for certiorari, g. Ascertainment of just compensation
prohibition and mandamus is proper h. Appointment of commissioners;
d. Injunctive relief commissioner’s report; court action
e. Exceptions to filing of motion for upon commissioner’s report
reconsideration before filing petition i. Rights of plaintiff upon judgment and
f. Reliefs petitioner is entitled to payment
g. Actions/omissions of MTC/RTC in j. Effect of recording of judgment
election cases
h. When and where to file petition
i. Effects of filing of an unmeritorious
petition

10. FORECLOSURE OF REAL

ESTATE MORTGAGE

8. QUO WARRANTO

a. Judgment on foreclosure for payment

or sale
b. Sale of mortgaged property; effect
a. Distinguish from quo warranto in the c. Disposition of proceeds of sale
omnibus election code d. Deficiency judgment
b. When government commence an e. Instances when court cannot render
action against individuals deficiency judgment
c. When individual may commence an f. Judicial foreclosure versus
action extrajudicial foreclosure
d. Judgment in quo warranto action g. Equity of redemption versus right of
e. Rights of a person adjudged entitled redemption
to public office

11. PARTITION
9. EXPROPRIATION

292
 a. Who may file complaint; who should 13. CONTEMPT
be made defendants
b. Matters to allege in the complaint for
partition
c. Two stages in every action for
partition
d. Order of partition and partition by
agreement a. Kinds of contempt
e. Partition by commissioners; b. Purpose and nature of each
appointment of commissioners, c. Remedy against direct contempt;
commissioner’s report; court action penalty
upon commissioner’s report d. Remedy against indirect contempt;
f. Judgment and its effects penalty
g. Partition of personal property e. How contempt proceedings are
h. Prescription of action commenced
f. Acts deemed punishable as indirect
contempt
g. When imprisonment shall be imposed
h. Contempt against quasi-judicial
bodies

12. FORCIBLE ENTRY AND

UNLAWFUL DETAINER

1. NATURE OF SPECIAL CIVIL

ACTIONS
a. Definitions and distinction
b. Distinguished from accion publiciana Being a civil action, a special civil action is one by
and accion reivindicatoria which a party sues another for the enforcement or
c. How to determine jurisdiction in protection of a right, or the prevention or redress
accion publiciana and accion of a wrong. (Section 3(a), Rule 1 of the Rules of
reivindicatoria Court)
d. Who may institute the action and
when; against whom the action may Both are governed by the rules for ordinary civil
be maintained actions. However, the fact that an action is subject
e. Pleadings allowed to special rules other than those applicable to
f. Action on the complaint ordinary civil actions is what gives a civil action its
g. When demand is necessary special character.
h. Preliminary injunction and preliminary
mandatory injunction As a general rule, however, the rules governing
i. Resolving defense of ownership ordinary civil actions shall apply in special civil
j. How to stay the immediate execution actions insofar as they supplement or are not
of judgment inconsistent with the provisions governing the
k. Summary procedure, prohibited latter actions.
pleadings
2. ORDINARY CIVIL ACTIONS AND
SPECIAL CIVIL ACTIONS
DISTINGUISHED

293
 ORDINARY CIVIL SPECIAL CIVIL
ACTIONS ACTIONS
Generally governed
Governed by rules for by rules for ordinary 2. Review of Adjudication of COMELEC/COA
ordinary civil actions civil actions but 3. Certiorari
subject to special 4. Prohibition
rules 5. Mandamus
6. Quo Warranto
Not necessarily such 7. Contempt
as in certain special
Must be based on a Special civil actions with 2 stages
civil actions:
cause of action 1. Expropriation
1. Declaratory relief –
meaning an act or 2. Partition
no actual violation of
omission has violated
rights
the rights of another 3. JURISDICTION AND VENUE
2. Interpleader – no
interest in the subject
matter See Annex.

May be filed initially in There are some 4. INTERPLEADER (Rule 62)

either the MTC or special civil actions
RTC depending upon which cannot be INTERPLEADER
the jurisdiction commenced in the An interpleader is a remedy whereby a person
amount or the nature MTC, i.e. petitions for who has property whether personal or real, in his
of the action certiorari, prohibition possession, or an obligation to render wholly or
and mandamus partially, without claiming any right in both, or
Some special civil claims an interest which in whole or in part is not
Ordinary civil actions
actions are filed as disputed by the conflicting claimants, comes to
are filed as
the same, but others court and asks that the persons who claim the said
complaints.
are filed as petitions property or who consider themselves entitled to
demand compliance with the obligation, be
required to litigate among themselves, in order to
determine finally who is entitled to one or the other
thing. (Ocampo v. Tirona., G.R. No. 147812, 2005)
Special civil actions initiated by a complaint
[PIFEF] a. REQUISITES FOR INTERPLEADER
1. Partition
2. Interpleader 1. There must be two or more claimants with
3. Foreclosure of REM adverse or conflicting interests to a
4. Expropriation property in the custody or possession of the
5. Forcible Entry and Unlawful Detainer plaintiff;
2. The plaintiff in an action for interpleader
has no claim upon the subject matter of the
adverse claims or if he has an interest at all,
such interest is not disputed by the claimants;
3. The subject matter of the adverse claims must
be one and the same; and
4. The parties to be interpleaded must make
effective claims. (Rule 62, Section 1)

b. WHEN TO FILE

The stakeholder should use reasonable diligence

to hale the contending claimants to court—that is,
Special civil actions initiated by a petition by filing the interpleader suit within a reasonable
[ProM C2DR Q] time after a dispute has arisen without waiting to
1. Declaratory Relief be sued by either of the contending parties.

294
Otherwise, he may be barred by laches or undue
delay.
Pertinently, a stakeholder’s action of interpleader
is too late when filed after judgment has been
rendered against him in favor of one of the
contending claimants, especially where he had
notice of the conflicting claims prior to the rendition
of the judgment and neglected the opportunity to
implead the adverse claimants in the suit where
judgment was entered. (WackWack Golf and
Country Club v. Won, G.R. No. L-23851, 1976)
An interpleader complaint may be filed by a lessee
against those who have conflicting claims over the
rent due for the property leased. 135 This remedy is
for the lessee to protect him or her from “double
vexation in respect of one liability.”136 He or she
may file the interpleader case to extinguish his or
her obligation to pay rent, remove him or her from
the adverse claimants’ dispute, and compel the
parties with conflicting claims to litigate among
themselves.(Lui Enterprises v. Zuellig Pharma,
G.R. No. 193494, 12 March 2014, 719 SCRA 88)
Except when there was no negligence
An interpleader can still be filed even after an
action has been filed against the plaintiff, as
long as the plaintiff was not negligent in not
knowing the pending action.
If an action has been filed
In lieu of an interpleader, one can file an answer
with allegations of conflicting claims and a third-
party complaint impleading the other party.
Order to interplead
Upon the filing of the complaint, an order requiring
the conflicting claimants to interplead with one
another shall be issued.
The court may direct in the said order that the
subject matter be paid or delivered to the court.
(Rule 62, Section 2)
Service of summons
Summons shall be served upon the conflicting
claimants together with:
1. A copy of the complaint, and
2. Order. (Rule 62, Section 3)
Motion to dismiss
Within the time for filing an answer, each
claimant may file a motion to dismiss on the
following grounds:
1. Impropriety of the interpleader
2. Other appropriate grounds in Rule 16 of the
Rules of Court
Answer and other pleadings
Period to file Answer
Answer shall be filed within 15 days after service
of summons. (Rule 11, Section 1; Rule 62, Section
5)
Period to file Reply
Claimants may file their reply within the period
provided by the Rules. A reply may be filed within
10 days from the service of the pleading
responded to. (Rule 11, Section 6; Rule 62,
Section 5)
An adverse claimant in an interpleader case may
be declared in default. Under Rule 62, Section 5 of
the 1997 Rules of Civil Procedure, a claimant who
fails to answer within the required period may, on
motion, be declared in default. The consequence
of the default is that the court may “render
judgment barring [the defaulted claimant] from any
claim in respect to the subject matter.”  The Rules
would not have allowed claimants in interpleader
cases to be declared in default if it would
“ironically defeat the very purpose of the suit.” .(Lui
Enterprises v. Zuellig Pharma, G.R. No. 193494,
12 March 2014, 719 SCRA 88)
Effect of failure to plead within the time fixed
The court may, on motion, declare the claimant in
default and render judgment barring him from any
claim in respect to the subject matter.
The parties in an interpleader may file:
1. Counterclaims;
2. Cross-claims;
295
3. Third-party complaints; and 1. All persons who have or claim any interest, which
4. Responsive pleadings thereto as provided in would be affected by the declaration. (Rule 63,
the Rules Section 2)
2. The following shall also be notified and entitled to
When court shall determine and adjudicate be heard:
claims a. Solicitor General
The court shall proceed to determine their
respective rights and adjudicate their claims after
the pleadings of the conflicting claimants have
been filed and pre-trial has been conducted. (Rule
62, Section 6)

What shall constitute as lien upon the subject
matter
The following shall constitute a lien or charge upon
the subject matter unless otherwise ordered by the
court:
1. Docket and other lawful fees paid by the party
who filed the complaint for interpleader; and
Costs and litigation expenses. (Rule 62, Section 7)
Where the action involves the validity of a
statute, executive order or regulation, or any
other governmental regulation (Rule 63, Section
3); or
Where the unconstitutionality of a local gov’t
ordinance is alleged (Rule 63, Section 4)

5. DECLARATORY RELIEF (Rule 63)

b. Local gov’t unit prosecutor or attorney

a. WHO MAY FILE ACTION

Where the action involves the validity of a local

government ordinance. (Rule 63, Section 4)

Note: RTC has exclusive jurisdiction.

If the subject matter is a [DeWCO] Deed, Will,

Contract or Other written instrument, any person
interested in the same may file the petition. (Rule
63, Section 1)

If the subject matter is a [SEROG] Statute,

Executive order or Regulation, Ordinance, or any
other Governmental regulation, any person whose b. REQUISITES OF ACTION FOR
rights are affected by the same may file the petition. DECLARATORY RELIEF
(Rule 63, Section 1)

Who shall be impleaded as parties?

296
1. There must be a justiciable controversy;
2. The controversy must be between persons
whose interests are adverse;
3. The party seeking declaratory relief must have
a legal interest in the controversy; and
4. The issue involved must be ripe for judicial
determination. (CJH Development vs. BIR,
G.R. No. 172457, 2008)
c. WHEN COURT MAY REFUSE TO MAKE
JUDICIAL DECLARATION
1. Where a decision would not terminate the
uncertainty or controversy which gave rise to
the action, or
2. In any case where the declaration or
construction is not necessary and proper under
the circumstances. (Rule 63, Section 5)
NOTE: The court may refuse to exercise the power
to declare rights and to construe instruments motu
propio or upon motion.
Exception: If the action is for reformation of
instruments, consolidation of ownership and
quieting of title – the court must decide the
case.
Other instances when the action for declaratory
relief will not lie:
1. Action to obtain a judicial declaration of
citizenship (no real controversy; other remedies
available) (Lim v. Republic, G.R. No. L-30424,
1971);
2. Action to establish illegitimate filiation and
actions to determine hereditary rights (lack of
actual existing legal right – hereditary rights are
inchoate since the parent in question is still
alive) (Edades v. Edades, G.R. No. L-8964,
1956);
3. Court decisions (not among subject matters
listed; violates res judicata);
4. Decisions of quasi-judicial agencies (for the
same reason as court decisions) (Monetary
Board v. Philippine Veterans Bank, G.R. No.
189571, 2015)
5. Action to resolve a political question;
6. Those determinative of the issues rather than
the construction of definite status, right or
relation;
7. Where the terms of the assailed ordinance are
not ambiguous or of doubtful meaning;
8. Where the contract or statute subject of the
case had already been breached; (SJS v. Lina,
G.R. No. 160031, 2008);
9. When the purpose of the action is merely to
seek an advisory opinion from the court on a
moot question. (Riano, 2009 ed.)
d. CONVERSION TO ORDINARY ACTION
If before the final termination of the case, a breach
or violation of an instrument or a statute, executive
order or regulation, ordinance, or any other
governmental regulation should take place, the
action may thereupon be converted into an ordinary
action, and the parties shall be allowed to file such
297
pleadings as may be necessary or proper. (Section the property in the person of the vendee or buyer
6, Rule 63 of the Rules of Court) but for the registration of the property. (Cruz v. Leis,
G.R. No. 125233, 2000)

e. PROCEEDINGS CONSIDERED AS
SIMILAR REMEDIES (iii) QUIETING OF TITLE TO REAL
PROPERTY

An action to quiet title to real property is for the

removal or prevention of a cloud of title to real
property or any interest by reason of any
instrument, record, claim, encumbrance or
proceeding which is apparently valid or effective but
(i) REFORMATION OF AN INSTRUMENT is in truth and in fact invalid, ineffective, voidable or
unenforceable and may be prejudicial to said title.
(Article 476 of the New Civil Code)

Jurisdiction over actions to quiet title to real property

depends on the amount or value of the property
determines.

An action for reformation is not an action brought to 6. REVIEW OF JUDGMENTS AND

reform a contract, but to reform the instrument FINAL ORDERS OR RESOLUTIONS
evidencing the contract. (Art. 1359 of the New Civil
Code) OF THE COMELEC AND COA (Rule
64)
Scope
The Rule shall govern the review of judgments and
final orders or resolutions of the Commission on
Elections en banc and the Commission on Audit.
(Rule 64, Section 1)
(ii) CONSOLIDATION OF OWNERSHIP
The prerequisite filing of a Motion for
Reconsideration with the COMELEC en banc is
mandatory before said final en banc decision may
be brought to the Supreme Court on Certiorari.
(Ambil Jr. v. COMELEC, G.R. No. 143398, 2000)

The action brought to consolidate ownership is not

for the purpose of consolidating the ownership of

298
 a. APPLICATION OF RULE 65 UNDER Directed against Directed against a
RULE 64 Comelec and COA tribunal, board or officer
exercising judicial or
quasi-judicial functions

The aggrieved party may bring a judgment or final

order or resolution of the Comelec en banc and
COA to the SC on certiorari under Rule 65 and not Must be filed within 30 Must be filed within 60
on appeal by certiorari under Rule 45. (Rule 64, days from notice of days from notice of
Section 2) judgment or resolution judgment or resolution

b. DISTINCTION IN THE APPLICATION OF If MR or MNT were If MR or MNT were

RULE 64 TO JUDGMENTS OF THE denied, the aggrieved denied, the aggrieved
COMELEC AND COA AND THE party may file the party will have another
APPLICATION OF RULE 65 TO OTHER petition within the 60 days within which to
TRIBUNALS, PERSONS AND OFFICERS remaining period, but file the petition (fresh
which shall not be less 60-day period)
than 5 days in any case

All annexes must be Only the order assailed

certified must be certified

RULE 64 RULE 65

Rule 64 does not cover rulings of the COMELEC in

the exercise of its administrative powers (Querubin,
et al. v. COMELEC, G.R. No. 218787, 8 December
FINAL orders, May be used against 2015)
judgments or interlocutory orders of
resolutions COA/Comelec Time to file petition
The petition shall be filed within 30 days from notice
of the judgment, final order, or resolution.
(Constitution, Art IX, Sec. 7)

The filing of a motion for new trial or

reconsideration, if allowed under the procedural

299
rules of the COMELEC and COA, interrupts the CERTIORARI PROHIBITION MANDAMUS
period.

If the motion is denied, petition may be filed within

the remaining period or within 5 days from notice of
denial, whichever is longer. (Rule 64, Section 3)

Order to comment
If the petition is sufficient in form and substance, the Directed Directed Directed
respondents shall be ordered to file their comments against an against an against an
within 10 days from notice thereof. (Rule 64, entity or person entity or person entity or
Section 6) exercising exercising person
judicial or judicial, quasi- exercising
Outright dismissal of petition: quasi-judicial judicial, or ministerial
1. If the complaint is insufficient in form and functions ministerial functions
substance functions
2. If the complaint was filed manifestly for delay
3. If the questions raised are too unsubstantial to
warrant further proceedings (Rule 64, Section
6)

Effect of filing of petition

General Rule: The filing of a petition for certiorari
shall not stay the execution of the judgment or final Entity or Entity or Entity or
order or resolution sought to be reviewed person is person is person is
alleged to have alleged to be alleged to
Exception: When the Supreme Court directs acted: acting or have:
otherwise upon such terms as it may deem just threatening to
(Rule 64, Section 8) act:

7. CERTIORARI, PROHIBITION AND

MANDAMUS (RULE 65)
Without Neglected
jurisdictio a
n; Without ministeria
In excess jurisdictio l duty; or
of n; Excluded
jurisdictio In excess another
a. DEFINITIONS AND DISTINCTIONS n; or of from a
With jurisdictio right or
grave n; or office.
abuse of With
discretion grave
amounting abuse of
to lack or discretion
excess of amounting
jurisdictio to lack or
Certiorari, Prohibition and Mandamus n. excess of
defined and distinguished: jurisdictio
n.

300
 (i) CERTIORARI DISTINGUISHED FROM
Purpose: To Purpose: To Purpose: For
APPEAL BY CERTIORARI
annul or nullify have respondent to:
a proceeding respondent
desist from
further
proceeding;
from exercising
jurisdiction/
power Do the act
required Certiorari and appeal by certiorari
as a distinguished:
duty; and
Pay
damages

CERTIORARI AS A CERTIORARI AS A
MODE OF APPEAL SPECIAL CIVIL
(RULE 45) ACTION (RULE 65)
Covers Covers Covers
discretionary discretionary ministerial
acts and ministerial acts
acts

A continuation of the An original action and

appellate process over not a mode of appeal
the original case

Corrective Negative and This remedy is

remedy: To preventive affirmative or
correct a lack remedy: To positive (if
of or restrain or the
usurpation of prevent performance
jurisdiction usurpation of of a duty is
jurisdiction ordered) or Seeks to review final May be directed against
negative (if judgments or final an interlocutory order of
desistance orders the court or where no
from excluding appeal or plain or
another from a speedy remedy is
right or office available in the ordinary
is ordered) course of law

Raises only questions Raises questions of

301
of law jurisdiction—that is, Stays the judgment Does not stay the
whether a tribunal, appealed from judgment or order
board or officer subject of the petition,
exercising judicial or unless enjoined or
quasi-judicial functions restrained
has acted without
jurisdiction or in excess
of jurisdiction or with
grave abuse of
discretion amounting to
lack of jurisdiction

Parties are the original The tribunal, board,

parties with the officer exercising
appealing party as the judicial or quasi-judicial
petitioner and the functions is impleaded
adverse party as the as primary respondent;
respondent without with adverse party in
Filed within 15 days Filed within 60 days impleading the lower the lower court (if any)
from notice of judgment from notice of court or its judge as the private
or final order appealed judgment, order or respondent
from, or of the denial of resolution sought to be
petitioner’s motion for assailed and in case a
reconsideration or new motion for
trial reconsideration or new
trial is timely filed, the
60-day period is to be
counted from notice of
denial of said motion Filed only with SC May be filed with SC,
CA, Sandiganbayan, or
RTC

Extension of 30 days Extension is allowed

may be granted for only in exceptional and
justifiable reasons meritorious cases (See SC may deny the The court may dismiss
MidIslands Power v. decision motu propio on the petition if it finds the
CA, 29 Feb 2012) the ground that the same patently without
appeal is without merit, merit or prosecuted
or is prosecuted manifestly for delay, or
manifestly for delay, or if the questions raised
that the questions therein are too
raised therein are too unsubstantial to require
unsubstantial to require consideration. In such
consideration. event, the court may
Does not require a prior Motion for award in favor of the
motion for reconsideration is a respondent treble costs
reconsideration condition precedent, solidarily against the
subject to exceptions petitioner and counsel,
in addition to subjecting

302
 counsel to Ordinary civil action; Special civil action;
administrative May deal with factual Refers to issues of
sanctions under Rules or legal issues jurisdiction only
139 and 139-B of the
Rules of Court.

The Court may impose

motu proprio, based on
res ipsa loquitur, other
disciplinary sanctions or
measures on erring Directed only to the Directed to the court
lawyers for patently party litigants, without itself, commanding it to
dilatory and in any manner cease from the exercise
unmeritorious Petitions interfering with the of a jurisdiction to which
for Certiorari court it has no legal claim

Mandamus and injunction distinguished

(ii) PROHIBITION AND MANDAMUS

DISTINGUISHED FROM INJUNCTION
INJUNCTION MANDAMUS

Prohibition and injunction distinguished Ordinary civil action Special civil action

INJUNCTION PROHIBITION
Directed against a Directed against a
litigant tribunal, corporation,
board, or officer

303
 a. There must be a controversy;
Purpose is to either Purpose is for the
b. Respondent is exercising judicial, quasi-
compel the defendant tribunal, corporation,
judicial, or ministerial functions;
to refrain from board, or officer to
c. Respondent acted without or in excess of
performing an act or to perform a ministerial
jurisdiction, or acted with grave abuse of
perform any act - not and legal duty
discretion; and
necessarily a legal and
d. There must be no appeal or other plain,
ministerial duty
speedy, and adequate remedy.

3. MANDAMUS

a. There must be a clear legal right or duty;

b. REQUISITES b. Respondent must be exercising a
ministerial duty—a duty which is absolute
and imperative, and involves merely its
execution;
c. Respondent unlawfully neglects the
performance of its duty or unlawfully
excludes another from the use and
enjoyment of a right or office to which such
1. CERTIORARI other is entitled; and
d. No appeal or other plain, speedy, and
adequate remedy in the ordinary course of
law.

a) Tribunal, board, or officer exercises judicial

or quasi-judicial functions;
b) Tribunal, board, or officer has acted
without or in excess of jurisdiction or with
grave abuse of discretion; and
c) There is no appeal or any plain, speedy,
and adequate remedy in the ordinary
course of law.
NOTE: All petitions must be accompanied with a
certified true copy of the judgment or order subject
thereof. It must be an authenticated original thereof
and not a mere photocopy that must be attached to
the petition filed. (Regalado 2008 ed.)

2. PROHIBITION

304
 c. WHEN PETITION FOR CERTIORARI,
PROHIBITION AND MANDAMUS IS PROPER
CERTIORARI
General rule: A petition for certiorari is proper when
all the requisites are complied with.
Exceptions:
A. Even when appeal is available and is the
proper remedy, SC has allowed a writ of
certiorari:
1. Where the appeal does not constitute a
speedy and adequate remedy;
2. Where the orders were also issued either
in excess of or without jurisdiction;
3. For certain special considerations, as
public welfare or public policy;
4. Where, in criminal actions, the court
rejects rebuttal evidence for the
prosecution as, in case of acquittal, there
could be no remedy;
5. Where the order is a patent nullity; and
6. Where the decision in the certiorari case
will avoid future litigations. (Regalado,
2008 ed.)
B. Even when the period for appeal has lapsed,
SC has allowed a writ of certiorari:
1. When appeal is lost without the appellants’
negligence;
2. When public welfare and the advancement
of public policy dictates;
3. When the broader interest of justice so
requires;
4. When the writs issued are null and void;
and
5. When the questioned order amounts to an
oppressive exercise of judicial authority.
Certiorari is not a proper remedy to appeal a
motion to quash
Generally, the proper action is to continue with the
trial and reiterate the special defenses invoked in
the motion to quash. As an exception, certiorari is
proper when there is grave abuse of discretion.
(Lazarte v. Sandiganbayan, G.R. No. 180122,
2009)
Certiorari and prohibition are appropriate
remedies to contest the validity of acts of any
branch or agency of government as provided for
under Article VIII Section 1 of the Constitution:
> Judicial power includes duty of the courts 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. (Ermita v.
Aldecoa-Delorino, 651 SCRA 128; and Francisco v.
Toll Regulatory Board, 633 SCRA 470)
Certiorari is the proper remedy to appeal a
declaration of presumptive death
The Family Code was explicit that the court’s
judgment in summary proceedings, such as the
declaration of presumptive death of an absent
spouse, shall be immediately final and executory.
An aggrieved party may, nevertheless, file a petition
for certiorari under Rule 65 to question any abuse of
discretion amounting to lack or excess of jurisdiction
that transpired. Republic v. Cantor, [G.R. No.
184621, December 10, 2013]
RTC ruled in favor of private respondents. Upon
SCA for certiorari, the CA dimissed the petition on
the ground of lack of jurisdiction. Petitioner filed
another SCA for certiorari assailing the CA’s
resolution. Petitioner should have filed a petition for
review on certiorari under Rule 45, which is a
305
continuation of the appellate process over the
original case. However, in accordance with the
liberal spirit pervading the Rules of Court and in the
interest of substantial justice, this Court has, before,
treated a petition for certiorari as a petition for
review on certiorari, particularly (1) if the petition
for certiorari was filed within the reglementary
period within which to file a petition for review
on certiorari; (2) when errors of judgment are
averred; and (3) when there is sufficient reason to
justify the relaxation of the rules. (The City of Manila
v. Hon. Grecia-Cuerdo, G.R. No. 175723, 2014)
PROHIBITION
General rule: A petition for prohibition is intended
to prohibit or prevent FUTURE acts done without
authority or jurisdiction, and is not proper for acts
already accomplished.
Exceptions:
Even when an act is already fait accompli, SC
has allowed a writ of prohibition:
A petition for mandamus was considered proper in
the following instances:
To compel the ombudsman to dismiss a case
which was pending before him for 6 years,
which was considered a violation of the
constitutional duty to “promptly act on
complaints filed…” (Angchangco v.
Ombudsman, 268 SCRA 301)
To compel a judge to issue a writ of execution
pending appeal of a decision in an ejectment
case, where the defendant appellant failed to
make the necessary deposits of rentals
pending appeal. (Vda. De Carbungco v.
Amparo, 83 Phil 638)

1. Where it would prevent the creation of a Not proper in the following cases:
new province by those in the corridors of
power who could avoid judicial intervention
and review by merely speedily and
stealthily completing the commission of
such illegality. (Tan v. Comelec, G.R. No.
73155, 1986)
2. Where it would provide a complete relief To enforce purely contractual obligations;
by not only preventing what remains to be When there is another speedy and adequate
done but by undoing what has been done, remedy;
such as terminating a preliminary To compel a school to readmit students, and/or
investigation instead of filing a motion to to confer academic honors, in violation of the
quash. (Aurillo v. Rabi, G.R. No. 120014, school’s academic freedom (University of San
2002) Agustin v. CA, 230 SCRA 761; University of
3. Where the acts sought to be enjoined were San Carlos v. CA, 166 SCRA 570)
performed after the injunction suit is
brought. (Versoza v. Martinez, G.R. No.
119511, 1998)

MANDAMUS

306
 d. INJUNCTIVE RELIEF
The petition shall not interrupt the course of the
principal case, unless a temporary restraining order
or a writ of preliminary injunction has been issued,
enjoining the public respondent from further
proceeding with the case. (Rule 65, Section 7)
e. RULE ON FILING OF MOTION
FOR RECONSIDERATION BEFORE FILING OF
PETITION
General Rule: A motion for reconsideration is a
sine qua non requirement before filing a petition
under Rule 65.
Exceptions:
1. Where the order questioned is a patent
nullity;
2. Where the questions raised in the
certiorari proceeding have already 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;
4. Where an MR would be useless or is
prohibited;
5. Where petitioner is deprived of due
process;
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 issue raised is one purely of
law or where public interest is involved;
8. Where the proceedings in the lower court
are a nullity for lack of due process;
9. Where the proceeding was ex parte or in
which the petitioner had no opportunity to
object; and
10. Where the subject matter of the action is
perishable.
f. RELIEFS PETITIONER IS ENTITLED TO
The primary reliefs available to petitioner are:
1. In a petition of certiorari – That the judgment,
order, or resolution subject of the petition for
certiorari be annulled or modified. (Rule 65,
Section 1)
2. In a petition for prohibition – That the
respondent be ordered to desist from further
proceedings in the action or matter specified in the
petition for prohibition. (Rule 65, Section 2); or
3. In a petition for mandamus – That the
respondent, immediately or at some other time to
be specified by the court, do the act required to be
done to protect the petitioner’s rights, and to pay
the damages sustained by the petitioner by reason
of the respondent’s wrongful acts (Rule 65, Section
3)
4. Common to certiorari, prohibition and
mandamus – The court may grant such incidental
reliefs as law and justice may require. It may also
award damages. (Rule 65, Section 9). This may
include provisional remedies, final injunctions,
mandatory injunctions to return the parties to the
status quo, etc.
307
 g. ACTIONS/OMISSIONS OF MTC/RTC IN
ELECTION CASES
In election cases involving an act or omission of the
MTC or RTC
, the petition for certiorari shall be filed exclusively
with the Comelec, in aid of its appellate jurisdiction.
(Section 4, Rule 65 of the Rules of Court, as
amended by A.M. No. 07-7-12-SC, December 12,
2007)
h. WHEN AND WHERE TO FILE PETITION
When to file petition
Within 60 days from notice of the assailed
judgment, order or resolution.
In case a motion for reconsideration or a motion
for a new trial is timely filed: within 60 days
from notice of the denial of said motion.
Where to file petition
If petition relates to the acts or omissions of a
lower court, corporation, board, or officer or
person: RTC exercising jurisdiction over the
territorial area as defined by the SC.
If petition relates to the acts or omissions of a
quasi-judicial agency: Cognizable only by the
CA. (Rule 65, Section 4)
Is it proper to file a petition under Rule 65
directly with the Supreme Court?
General Rule: No. Follow the hierarchy of courts.
Thus, direct resort to the Supreme Court will not be
entertained.
Exception: “[U]nless 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 the
[Supreme Court’s] primary jurisdiction.”
(Santiago v. Vasquez, 217 SCRA 633)
i. PENALTY FOR FILING OF A
PATENTLY UNMERITORIOUS OR FRIVOLOUS
PETITION
The court may dismiss the petition for being
unmeritorious—that is:
1. It is patently without merit;
2. It is prosecuted manifestly for delay; or
3. If the questions raised therein are too
unsubstantial to require consideration.
In this case, the court may award treble costs in
favor of the respondent solidarily against the
petitioner and counsel. It may also subject the
counsel to administrative actions under Rules 139
and 139-B of the Rules of Court.
The Court may impose motu proprio, based on res
ipsa loquitur, other disciplinary sanctions or
308
measures on erring lawyers for patently dilatory and
unmeritorious petitions for certiorari. (Section 8,
Rule 65 of the Rules of Court, as amended by A.M
No. 07-7-12-SC, December 12, 2007)
8. QUO WARRANTO (Rule 66)
The object of Quo Warranto proceedings is to:
1. Determine the right of a person to use or
exercise of a franchise or office; and
2. Oust the holder from its enjoyment, if his
claim is not well-founded, or if he has
forfeited his right to enjoy the office.
(Tecson v. COMELEC, G.R. No. 161434,
2004)
General rule: Quo warranto is commenced by the
State/government as the proper party plaintiff.
Exception: When a person claims to be entitled
to the public office allegedly usurped by another
in which case he can bring the action in his own
name (Rule 66, Sec. 5)
Nature of a quo warranto proceeding:
1. It is a direct, not a collateral attack, on the
matter assailed
2. It is a proceeding against a public officer,
not in his official capacity, because no
official power or right or duty is sought, but
because the officer’s title to the office is
being questioned.
3. It is a proceeding of a public nature filed by
a prosecuting attorney ex officio such as
by the Solicitor General or fiscal. (But it is
personal in nature as to the person
claiming office.)
How is the action commenced:
Verified petition
The action is brought 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 the 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. (Rule 66, Section 1)
Rule 66 of the Rules of Court does not apply to quo
warranto cases against person who usurp an office
in a private corporation. (Calleja v. Panday, G.R.
No. 168696, 2006)
309
 a. DISTINGUISH FROM QUO WARRANTO Petition is brought May be instituted with
IN THE OMNIBUS ELECTION CODE either to SC, CA, or the COMELEC by any
RTC voter contesting the
election of any member
of Congress, regional,
provincial or city officer;
or to the MeTC, MTC or
MCTC if against any
barangay official (Sec.
Quo warranto under the Rules of Court and 253, Omnibus Election
under the Election Code distinguished Code)

QUO WARRANTO QUO WARRANTO Filed within one year Filed within 10 days
(RULE 66) (ELECTION CODE) from the time the cause after the proclamation
of ouster, or the right of of the results of the
the petitioner to hold election
the office or position
arose (Section 11, Rule
66)

Subject of the petition is Subject of the petition is

in relation to an in relation to an elective
appointive office office. (Nuval v. Guray,
G.R. No. L-30241,
December 29, 1928)
Petitioner is the person Petitioner may be any
entitled to the office voter even if he is not
entitled to the office

The issue is the legality Grounds relied upon

of the occupancy of the are: (a) ineligibility to
office by virtue of a the position; or (b)
legal appointment disloyalty to the The court has to When the tribunal
Republic (Sec. 253, declare who the person declares the candidate-
Omnibus Election entitled to the office is if elect as ineligible, he
Code) he is the petitioner will be unseated but the
person occupying the
second place will not be
declared as the one
duly elected because
the law shall consider
only the person who,
having duly filed his

310
 3. A private person claiming to be entitled to the
certificate of candidacy,
usurped or unlawfully held office.
received a plurality of
votes

a. The petitioner will not need to

secure intervention of the Solicitor
General or a fiscal;
Quo warranto and mandamus: Quo b. The action will be brought in his
warranto tests the title to one’s office claimed by name.
another and has as its object the ouster of the c. Petitioner must be able to show
holder from its enjoyment, while mandamus avails or establish that he has a clear
to enforce clear legal duties and not to try disputed right to the position, AND that the
titles. (Garces v. CA, G.R. No. 114795, 1996) person holding the office is a
mere usurper.
Who may commence an action for quo
warranto:
1. The Solicitor General or a public prosecutor
[MANDATORY quo warranto].

a. Upon direction of the President;

b. Upon complaint; or
c. When he has good reason to
believe he can establish a case b. WHEN GOVERNMENT MAY COMMENCE
on the grounds in Section 1 AN ACTION AGAINST INDIVIDUALS

2. The Solicitor General or a public prosecutor at When commenced

the request and upon relation of another person [ex When there is usurpation of a public office, position
relatione]. or franchise

A petition for quo warranto is filed against the

following individuals by the government:

a. The petitioner must first obtain a

leave of court;
b. The petitioner may also require
an indemnity bond tom the
relator.

311
 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 the provision of law, constitutes
a ground for the forfeiture of his office; or
3. An association which acts a corporation
within the Philippines without being legally
incorporated or without lawful authority so
to act. (Rule 66, Section 1)
How and who commences the action on behalf
of the government
Quo warranto is commenced by a verified petition
brought in the name of the Government of the
Republic of the Philippines by the Solicitor General,
or in some instances, by a public prosecutor. (Rule
66, Sections 2 and 3)
A petition to cease and desist the release of illegal
advertisements by a “Legal Clinic” run mainly by
paralegals (unauthorized practice of law), must
properly be brought to the Solicitor General to
commense an action of quo warranto against the
company in light of their misuse of the corporate
charter. When the advertisements released by the
company seem to celebrate bigamy, illegal
marriages, or divorce, the same must be enjoined
immediately by the court. (Ulep v. The Legal Clinic,
Bar Matter no. 553, 1993) (Secs. 2 and 3, Rule 66,
Rules of Court, in relation to Sec. 6(1), P.D. No.
902-A and Sec. 121, Corporation Code.)
Where the action is brought if Solicitor General
commences action
When the action is commenced by the Solicitor
General, the petition may be brought in the:
1. Regional Trial Court of the City of Manila;
2. Court of Appeals; or
3. Supreme Court (Rule 66, Section 7)
Where the action is brought if the action is
commenced by other persons
The petition can be brought only to the:
1. Supreme Court;
2. Court of Appeals; or
3. Regional Trial Court exercising jurisdiction
over the territorial area where the
respondent or any of the respondents
reside.
Quo Warranto against Corporations
May be brought against an association acting as a
corporation within the Philippines without being
legally incorporated or without lawful authority to act
Refers to de facto Corporations: those issued a
certificate of incorporation although it had not fully
complied with the laws
De facto Corporation: one which in good faith
claims to be a corporation, was organized in
accordance and pursuant to a valid law, and
assumes corporate powers because it was issued a
certificate of incorporation.
Its corporate existence can be directly attacked by a
quo warranto proceeding according to Sec. 20 of
the Corporation code.
Intra Corporate Dispute
Quo Warranto proceedings against persons who
usurp the office, powers or functions of duly elected
board members within a Corporation are not within
the Scope of Rule 66.
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 c. WHEN THE INDIVIDUAL MAY
COMMENCE AN ACTION Such further judgment may be rendered
determining the respective rights of all the parties to
the action as justice requires. (Rule 66, Section 9)

In bringing a petition for quo warranto, a private

individual must show that he has a clear right to the
office allegedly being held by another. It is not e. RIGHTS OF A PERSON ADJUDGED
enough that he merely asserts the right to be ENTITLED TO PUBLIC OFFICE
appointed to the office. (Cuevas v. Bacal, G.R. No.
139382, 2000)

The petitioner must also FIRST prove his

entitlement or right to the office, and cannot simply
rely on the defects in the qualifications of the
respondent. Failing this, the petition can be
dismissed at any stage and the court will not pass
on the qualifications or eligibility of the holder of the
office/respondent. (Acosta v. Flor, 5 Phil. 18)
An action quo warranto is filed prematurely when
the nature of the position is yet to be adjudged
under a review on certiorari action in the CA as to
whether it is of a de facto or de jure capacity. This
also constitutes forum shopping. (Feliciano v.
Villasin, G.R. No. 174929, 2008)
d. JUDGMENT IN QUO WARRANTO
ACTION
If judgment be rendered in favor of the person
averred in the complaint to be entitled to the public
office he may, after taking the oath of office and
executing any official bond required by law:
1. Take upon himself the execution of
the office
2. Demand of the respondent all the
books and the papers in the
respondent’s custody or control
appertaining to the office. (if he
refuses or neglects to do so, he may
be punished for contempt)
3. Bring an action for damages against
respondent sustained by him by
reason of the usurpation (Rule 66,
Section 11)

When the respondent is found guilty of usurping,

intruding into, or unlawfully holding or exercising a
public office, position, or franchise, judgment shall
be rendered that such respondent to be ousted and
altogether excluded therefrom.
Petitioner or relator may recover his costs.
When a quo warranto case is rendered moot and
academic, but the injunction order issued in such
pending case was disobeyed, the petitioner is still
entitled to receive compensation in damages from

313
such disobedience by the party previously
proceeded against. (Villanueva v. Rosqueta, G.R.
No. 180764, 2010)
Limitation as to period to file
General Rule: The action must be commenced
within one (1) year from date after the cause of
such ouster or the right of the petitioner to hold such
office or position arose.
The unbending jurisprudence in this jurisdiction is to
the effect that a petition for quo warranto and
mandamus affecting titles to public office must be
filed within one (1) year from the date the petitioner
is ousted from his position. He who claims the right
to hold a public office allegedly usurped by another
and who desires to seek redress in the courts,
should file the proper judicial action within the
reglamentary period. (Galano v. Roxas, G.R. No. L-
31241, 1975)
Exception: Laches does not attach and failure
to file quo warranto proceeding does not operate
adversely against a dismissed government
employee where it was the act of responsible
government official which contributed in the
delay of the filing of complaint for reinstatement.
(Cristobal v. Melchor, G.R. No. L-43203, 1977)
9. EXPROPRIATION (Rule 67)
Expropriation
It is a process by which the power of eminent
domain is carried out; taking as of private owned
property, by government under eminent domain
Eminent domain
It is the right of the State to acquire private property
for public use upon the payment of just
compensation
Note: Expropriation is only proper when the owner
refuses to sell or agrees to sell but an agreement as
to price cannot be reached.
Note: An expropriation suit is incapable of
pecuniary estimation. An expropriation suit does not
involve the recovery of a sum of money. Rather, it
deals with the exercise by the government of its
authority and right to take private property for public
use. (Barangay San Roque v. Heirs of Pastor, G.R.
No. 138896, 2000)
a. MATTERS TO ALLEGE IN COMPLAINT
FOR EXPROPRIATION
An expropriation proceeding is commenced by
the filing of a verified complaint which shall:
1. State with certainty the right of the plaintiff to
expropriation and the purpose thereof;
2. Describe the real or personal property sought to
be expropriated; and
3. Join as defendants all persons owning or
claiming to own, or occupying, any part of the
property or interest therein showing as far as
practicable the interest of each defendant.
4. If the plaintiff cannot with accuracy identify the
real owners, averment to that effect must be made
in the complaint. (Rule 67, Section 1)
314
Note: When the right of the plaintiff to expropriate is The order of the court in each stage is a final
conferred by law the complaint does not have to order and is separately appealable.
state with certainty the right of expropriation.

c. WHEN PLAINTIFF CAN IMMEDIATELY

b. TWO STAGES IN EVERY ACTION FOR ENTER INTO POSSESSION OF THE REAL
EXPROPRIATION PROPERTY, IN RELATION TO R.A. 8974

Stage 1: Determination of the plaintiff’s Upon filing of complaint and after due notice to
authority to exercise the power of eminent defendant the plaintiff shall have the right to enter or
domain and the propriety of its exercise in the take possession of property if he makes a
context of the facts involved in the suit. It ends preliminary deposit.
with an order, if not of dismissal of the action, of
condemnation declaring that the plaintiff has a Value of preliminary deposit:
lawful right to take the property sought to be
condemned, for the public use or purpose described
in the complaint, upon the payment of just
compensation to be determined as of the date of
the filing of the complaint. An order of dismissal, if
this be ordained, would be a final one, of course,
since it finally disposes of the action and leaves 1. Personal property: provisionally
nothing more to be done by the court on the merits. ascertained and fixed by the court
2. Real property: assessed value in the tax
Remedy: Appeal by notice of appeal and record on return
appeal within 30 days from receipt of court order.

Stage 2: Determination by the court of the just

compensation for the property sought to be
taken. This is done by the court with the assistance
of not more than three (3) commissioners. The
order fixing the just compensation on the basis of
the evidence before, and findings of, the General rule: Compensation must be in money.
commissioners would be final, too. It would finally
dispose of the second stage of the suit, and leave
nothing more to be done by the court regarding the
issue. (Barangay San Roque v. Heirs of Pastor,
G.R. No. 138896, 2000)

Remedy: Appeal by notice of appeal within 15 days Exception:

from receipt of court order.

315
 A court authorized certificate of deposit of Applicati Expropriati When the National
a government bank; and on on in Government
Bonds to be paid by the government under general expropriates for
the Comprehensive Agrarian Reform National Gov’t
Program. Infrastructure projects.

For writ Gov’t. Gov’t required to make

of required to immediate payment to
possessi make an the owner upon filing of
on to initial the complaint.
issue deposit.

Where to deposit
Depository bank (PNB) (Rule 67, Section 2)

Amount of Deposit:
Value of property assumed.

Note: This system of payment does not apply in the Basis of Assessed Market Value of the
acquisition of right-of-way, site or location for any computin Value of property stated in the
national government infrastructure project through g amount the prop. tax declaration OR the
expropriation. to be for current relevant zonal
paid purposes value of the BIR,
RA 8794 provides for a procedure more favorable of taxation. whichever is higher, and
to the property owner than the procedure provided the value of the
in Rule 67. RA 8794 applies in instances when the infrastructures/improve
national government expropriates property for ments using the
‘national government infrastructure projects’ only. replacement/cost
Thus, for other purposes, the assessed value method.
standard and the deposit prescribed in Rule 67
continues to apply. (Republic v. Gingoyon, G.R. No.
166429, 2005)

Difference between Rule 67 and R.A. 8974

What constitutes “Taking”

Section 2 Republic Act 8974

Rule 67
1. The expropriator must enter a private
property.
2. The entrance into private property must be
for more than a momentary period.

316
 3. The entry into the property should be under
warrant or color of legal authority.
4. The property must be devoted to a public
use or otherwise informally appropriated or
injuriously affected.
5. The utilization of the property for public use
must be in such a way as to oust the owner
and deprive him of all beneficial enjoyment
of the property. (Republic v. Vda. De
Castellvi, G.R. No. L-20620, 1974)
d. NEW SYSTEM OF IMMEDIATE
PAYMENT OF INITIAL JUST
COMPENSATION
For the acquisition of right-of-way, site or location
for any national government infrastructure project
through expropriation, upon the filing of the filing of
the complaint, and after due notice to the
defendant, the implementing agency shall
immediately pay the owner of the property the
amount equivalent to the sum of:
1. 100% of the value of the property based
on the current relevant zonal valuation of
the BIR; and
2. The value of the improvements and/or
structures as determined under Sec. 7,
R.A. 8974. (Section 4 of R.A. 8974)
3. A negotiated sale may be entered into
instead of expropriation proceedings.
(Sections 3, 5&6 of R.A 8974, and
Sections 6&13 of E.O. 1035) For
negotiated sale, payment must be effected
within 90 days from submission of all
documents and authorization of sale, while
for expropriation, it is 90 days from finality
of the decision rendered by the court.
The solicitor general is wrong in asserting that
section 50 of PD 1529(property registration decree)
applies in the sense that the property utilized and
taken by the government may only be conveyed by
donation to the government. There is nothing that
can more speedily and effectively embitter a citizen
and taxpayer against his Government and alienate
his faith in it, than an injustice in unfair dealing. The
government must effect payment in the form of just
compensation, and it may be done through a
negotiated sale, as granted by the RTC to the
respondent by virtue of RA 8974 and EO 1035.
(Republic v. Ortigas, G.R. No. 171496, 2014)
e. DEFENSES AND OBJECTIONS
(SECTION 3)
317
1. Omnibus Motion Rule — Subject to the
provisions of Sec. 1, 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.
(Rule 15, Section 8)
2. If a defendant has no objection or defense to
the action or the taking of his property he may file
and serve a notice of appearance and a
manifestation to that effect, specifically designating
or identifying the property in which he claims to be
interested, within the time stated in the summons.
Thereafter, he shall be entitled to notice of all
proceedings affecting the same.
3. If a defendant has objections to the filing of or
the allegations in the complaint, he shall serve his
answer within the time stated in the summons.
1. 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 adduce
all his objections and defenses to the
taking of his property.
2. No counterclaim, cross-claim or third-party
complaint shall be alleged or allowed in the
answer or any subsequent pleading.
4. A defendant waives all defenses and objections
not so alleged but the court, in the interest of
justice, may permit amendments to the answer to
be made not later than 10 days from the filing
thereof. However, at the trial of the issue of just
compensation, whether or not a defendant has
previously appeared or answered, he may present
evidence as to the amount of the compensation to
be paid for his property, and he may share in the
distribution of the award.
Note: Failure to file an answer does not produce
the consequences of default in ordinary civil
actions; the defendant may nonetheless appear at
the trial to present evidence as to the just
compensation of the claims and, thereafter, share in
the judicial award.
f. ORDER OF EXPROPRIATION
The order of expropriation forecloses any further
objections to the right to expropriate, including the
public purpose of the same.
The court will then proceed to resolve the matter of
just compensation.
Such final order sustaining the right to expropriate
the property may be appealed by any party
aggrieved thereby. Such appeal, however, shall not
prevent the court from determining the just
compensation to be paid.
Note: Expropriation is one of the actions wherein
multiple appeals are permitted.
An appeal may be taken from the order of
expropriation which authorizes the
expropriation.
Another appeal may lie against the judgment on the
just compensation to be paid.
Since multiple appeals are permitted, the
reglementary period to appeal shall be 30 days and
a record on appeal shall be required for each of the
permissible appeals.
After the rendition of such an order, the plaintiff
shall not be permitted to dismiss or discontinue the
proceeding except on such terms as the court
deems just and equitable. (Rule 67, Section 4)
Judicial review of the exercise of eminent domain is
limited to the following areas of concern: (a) the
318
adequacy of the compensation, (b) the necessity of 2. Upon taking of the property
the taking, and (c) the public use character of the Whichever comes first
purpose of the taking. Dismissal of an expropriation
proceeding is proper when the city asserting The order of expropriation merely declares that the
eminent domain failed to prove in evidence that plaintiff has the lawful power to expropriate the
there is a genuine necessity for taking public property but contains no ascertainment of the
property. Providing a playground for a non-profit, compensation to be paid to the owner of the
private organization, not directly for the benefit of property.
the locality, is not a public purpose. Hence, it is an
inappropriate reason for instituting expropriation
proceedings and no confiscation of property may be
executed. (Masikip v. City of Pasig, G.R. No.
136349, 2006)

h. APPOINTMENT OF COMMISSIONERS;
COMMISSIONER’S REPORT; COURT
ACTION UPON COMMISSIONER’S REPORT

g. ASCERTAINMENT OF JUST
COMPENSATION

APPOINTMENT – Upon the rendition of the order of

Just compensation
It is full and fair equivalent of the property taken
from its owner by the expropriator. The measure is
not just the taker’s gain, but the owner’s loss.
Just compensation means not only the correct
determination of the amount to be paid to the owner
of the land but also the payment of the land within a
reasonable time from its taking. Without prompt
payment, compensation cannot be considered "just"
for the property owner is made to suffer the
consequence of being immediately deprived of his
land while being made to wait for a decade or more
before actually receiving the amount necessary to
cope with his loss. (Coscoluela v. Court of Appeals,
G.R. No. 77765, 1988)
expropriation, the court shall appoint not more than
three (3) competent and disinterested persons as
commissioners to ascertain and report to the court
the just compensation for the property sought to be
taken.
Contents of the order of appointment
1. The time and place of the first session of
the hearing to be held by the
commissioners; and
2. The time within which their report shall be
submitted to the court.

Value
1. As of the date of filing of the complaint; OR

319

Objections to the appointment of any of the
commissioners shall be filed with the court within 10
days from service, and shall be resolved within 30
days after all the commissioners shall have
received copies of the objections. (Rule 67, Section
5)
Oath
Before entering upon the performance of their
duties, the commissioners shall take and subscribe
an oath that they will faithfully perform their duties
as commissioners.
Scope of powers of the commissioners:
1. Accept evidence which may be introduced
by either party
2. After due notice to the parties to attend,
examine the property sought to be
expropriated and its surroundings and
measure the same. (However the parties
may consent to the contrary)
3. Assess the consequential damages to the
property and deduct from such the
consequential benefits to be derived by the
owner from the public use or purpose of
the property taken
But in no case shall the consequential benefits
assessed exceed the consequential damages
assessed, or the owner be deprived of the actual
value of his property so taken. (Rule 67, Section 6)
FORMULA
a. Where assessed benefits are less than assessed
damages
Value of the property (at the date of taking OR
filing)
+ Consequential damages
- Consequential benefits
= Just compensation
b. Where assessed benefits are larger than the
assessed damages
Just compensation = Fair Market Value
REPORT: The court may order the commissioners
to report when any particular portion of the real
estate shall have been passed upon by them, and
may render judgment upon such partial report, and
direct the commissioners to proceed with their work
as to subsequent portions of the property sought to
be expropriated, and may from time to time so deal
with such property.
The commissioners shall make a full and accurate
report to the court of all their proceedings, and such
proceedings shall not be effectual until the court
shall have accepted their report and rendered
judgment in accordance with their
recommendations.
Except as otherwise expressly ordered by the court,
such report shall be filed within 60 days from the
date the commissioners were notified of their
appointment, which time may be extended in the
discretion of the court.
Upon the filing of such report, the clerk of the court
shall serve copies thereof on all interested parties,
with notice that they are allowed 10 days within
which to file objections to the findings of the report,
if they so desire. (Rule 67, Section 7)
320
Action upon the report – Upon the expiration of the
period of 10 days referred to in the preceding
section, or even before the expiration of such period
but after all the interested parties have filed their
objections to the report or their statement of
agreement therewith, the court may, after hearing:
1. Accept the report and render judgment in
accordance therewith; or
2. For cause shown, it may recommit the
same to the commissioners for further
report of facts; or
3. It may set aside the report and appoint
new commissioners; or
4. It may accept the report in part and reject it
in part; and
5. It may make such order or render such
judgment as shall secure to the plaintiff the
property essential to the exercise of his
right of expropriation, and to the defendant
just compensation for the property so
taken.
i. RIGHTS OF PLAINTIFF UPON
JUDGMENT AND PAYMENT
After payment of the just compensation as
determined in the judgment, the plaintiff shall have
the right to enter upon the property expropriated
and to appropriate the same for the public use or
purpose defined in the judgment or to retain
possession already previously made in accordance
with Section 2, Rule 67 of the Rules of Court.
Title to the property expropriated passes from the
owner to the expropriator upon full payment of just
compensation. (Federated Realty Corp. v. CA, G.R.
No. 127967, 2005)
Title in expropriation becomes vested:
Personal property - upon payment of just
compensation
Real property - upon payment of just
compensation AND registration
When real estate is expropriated, a certified copy of
such judgment shall be recorded in the registry of
deeds of the place in which the property is situated,
and its effect shall be to vest in the plaintiff the title
to the real estate so described for such public use
or purpose. (Rule 67, Section 13)
j. EFFECT OF RECORDING OF
JUDGMENT
1. The judgment shall state:
2. An adequate description of the particular
property or interest therein expropriated;
and
3. The nature of the public use or purpose for
which it is expropriated.
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 pay the mortgage debt and, thereby, terminates his
Remedies of a property owner for non-payment or her rights in the property. (West's Encyclopedia
of the just compensation for the taking of his of American Law, edition 2. Copyright 2008 The
property: Gale Group, Inc. All rights reserved.)
As a general rule, the private landowner cannot
execute on the judgment or recover the property. Modes of Foreclosure in Real Estate Mortgage:
Non payment merely entitles the private landowner
to interest on the just compensation, until fully
paid;

1. Judicial Forclosure pursuant to Rule

68
2. Extrajudicial Forclosure pursuant to
Special Exceptions: Act No. 3135 as amended by Act
If the expropriated property earns income or 4118, and A.M. No. 99-10-05-0
the government has allocated/appropriated (Acbang v. Luczon)
funds for the just compensation, the landowner
may execute on such funds. (Coscolluela v.
CA, G.R. No. 77765 August 15, 1988) within
five (5) years from finality of the decision.
An action for reconveyance or recovery of
possession, if payment of just compensation
has not been made after the lapse of five (5)
years from finality of the judgment fixing just
compensation, under special circumstances,
including the fact that the property taken is no
longer devoted to public use (Republic v. Lim,
G.R. No. 161656.  June 29, 2005)

a. JUDGMENT ON FORECLOSURE FOR

PAYMENT OR SALE

It is arbitrary and capricious for a government

agency to initiate expropriation proceedings, seize a
person’s property, allow the judgment of the court to
become final and executory and then refuse to pay
on the ground that there are no appropriations for
the property earlier taken and profitably used. Levy
and garnishment of NHA funds and property must
be executed by the sheriff as ordered by the court
to compensate the respondents. (NHA v. Heirs of
Guivelondo, G.R. No. 154411, 2003) If after the trial, the court finds that the matters set
forth in the complaint are true, it shall render a
10. FORECLOSURE OF REAL ESTATE judgment containing the following matters:
MORTGAGE (RULE 68)
FORECLOSURE
Foreclosure is a procedure by which the holder of a
mortgage—an interest in land providing security for
the performance of a duty or the payment of a debt
—sells the property upon the failure of the debtor to

322
 1. An ascertainment of the amount due to the b. SALE OF MORTGAGED PROPERTY;
plaintiff upon the mortgage debt or EFFECT
obligation, including interest and other
charges as approved by the court, as well
as costs;
2. A judgment of the sum found due;
3. An order that the amount found due be
paid to the court or to the judgment obligee
within the period of not less than 90 days
nor more than 120 days from the entry of
judgment; and
4. An admonition that in default of such
payment the property shall be sold at
public auction to satisfy the judgment.
(Rule 67, Section 2)
Confirmation of the Sale:
After the foreclosure sale has been effected, the
mortgagee shall file a MOTION FOR ITS
CONFIRMATION.

Motion for its confirmation

1. Motion is non-litiguous and may be made

The judgment of the court on the above matters is
considered a final adjudication of the case and
hence, is subject to challenge by the aggrieved
party by appeal or by other post-judgment
remedies.
The period granted to the mortgagor for the
payment of the amount found due by the court is
not just a procedural requirement but a substantive
right given by law to the mortgagee as his first
chance to save his property from final disposition at
the foreclosure sale. Hence, this period cannot be
omitted. (De Leon v. Ibañez, G.R. No. L-6967,
1954)
ex parte
2. Requires notice and hearing
3. Mortgagor will be allowed the opportunity
to show cause why the sale should not be
confirmed and to inform them when his
right will be cut off
4. If the mortgagor was not notified of the
hearing, the subsequent confirmation of
the sale is vitiated as if no confirmation
ever took place
5. After the hearing and the court finds valid
grounds, it shall issue an order confirming
the foreclosure sale= judgment in itself and
is deemed a final adjudication.

If the defendant fails to pay the amount adjudged

within the period given, the court will order the
foreclosure and execution sale of the mortgaged
property.

The title vests in the purchaser upon a valid

confirmation of the sale and retroacts to the date of
sale. (Grimalt vs. Vasquez, G.R. No. L-11721,
1918)

323
The order of confirmation is appealable and if not
appealed within the period for appeal becomes
final.
Upon the finality of the order of confirmation or upon
the expiration of the period of redemption when
allowed by law, the purchaser at the auction sale or
last redemptioner, if any, shall be entitled to the
possession of the property and he may secure a
writ of possession, upon, motion, from the court
which ordered the foreclosure unless a third party is
actually holding the same adversely to the judgment
obligor. (Rule 67, Section 3)
The import of Sec. 3 includes one vital effect—the
equity of redemption of the mortgagor or
redemptioner is cut-off and there will be no further
redemption, unless allowed by law (as in the case
of banks as mortgagees). The equity of redemption
starts from the 90-120 day period set in the
judgment of the court up to the time before the sale
is confirmed by an order of the court. Once
confirmed, no equity of redemption may further be
exercised.
General Rule: There is no right of redemption in a
judicial foreclosure.
Exception: Judicial foreclosures by banks = 1
year redemption period)
c. DISPOSITION OF PROCEEDS OF SALE
Formula:
Proceeds of the sale - Costs of the sale
Payment to the person foreclosing
When there shall be any balance or residue after
paying off the mortgage debt due, the same
shall be paid to:
1. Junior encumbrancers in the order of their
priority.
2. If there be no junior encumbrancers or if
there is still a balance after paying off the
junior encumbrancers, the same shall be
paid to the mortgagor or any person
entitled thereto. (Section 4, Rule 67 of the
Rules of Court)
d. DEFICIENCY JUDGMENT
If there be a balance due to the plaintiff after
applying the proceeds of the sale, the court, upon
motion, shall render judgment against the defendant
for any such balance.
Execution may issue immediately if the balance is
all due the plaintiff shall be entitled to execution at
324
such time as the remaining balance shall become EXTRA-JUDICIAL JUDICIAL
due and such due date shall be stated in the FORECLOSURE (ACT FORECLOSURE
judgment (Section 6, Rule 67 of the Rules of Court). 3135) (RULE 68)
The deficiency judgment is in itself a judgment;
thus, it is also appealable.

No independent action need be filed to recover the

deficiency from the mortgagor. The deficiency
judgment shall be rendered upon motion of the
mortgagee.
No complaint is filed. Complaint is filed with
The motion must be made only after the sale and No court intervention the courts
after it is known that a deficiency exists. Before that,
any court order to recover the deficiency is void.
(Govt. of PI v. Torralba, G.R. No. L-41573, 1935)

The mortgagor who is not the debtor and who

merely executed the mortgage to secure the
principal debtor’s obligation, is not liable for the
deficiency, unless he assumed liability for the same There is a right of There is only an equity
in the contract. (Philippine Trust Co. v. Echaus Tan redemption. Mortgagor of redemption. No right
Siua, G.R. No. L-29736, 1929) has a right of of redemption except
redemption for one year when mortgagee is a
Since a deficiency judgment cannot be obtained from registration of the banking institution;
against the mortgagor who is not the debtor in the sale (except equity of redemption is
principal obligation, the mortgagee may have to file where the mortgagee is 90 to 120 days, and
a separate suit against the principal debtor. a bank and the any time before
mortgagor is a juridical confirmation of
entity, the right to foreclosure sale
redeem may be
exercised until, but not Exception:
after, the registration of Where the mortgagee
the certificate of is a bank, the right of
sale/foreclosure with redemption may be
f. JUDICIAL FORECLOSURE VERSUS the Register of Deeds, exercised within 1 year
EXTRAJUDICIAL FORECLOSURE which in no case shall after the sale of the
be more than three (3) property (General
months after the Banking Act of 2000,
foreclosure, which ever Sec. 47)
is earlier. (General
Banking Act of 2000,
Sec. 47)

Judicial foreclosure and extrajudicial Mortgagee has to file a Mortgagee can move
separate action to for deficiency judgment
foreclosure distinguished recover any deficiency in the same action

325
Buyer at public auction Buyer at public auction Prerogative or right to Equity of the defendant
becomes absolute becomes absolute reacquire mortgaged mortgagor to extinguish
owner only after finality owner only after property after the mortgage and retain
of an action for confirmation of the sale registration of the ownership of the
consolidation of foreclosure sale property by paying the
ownership secured debt within the
90-120 day period set
by the court after the
judgment becomes final
(See Rule 68, Sec. 2)

Mortgagee is given a Mortgagee need not be

special power of given a special power
attorney in the of attorney
mortgage contract to
foreclose the
mortgaged property in
case of default

g. EQUITY OF REDEMPTION VERSUS

RIGHT OF REDEMPTION

RIGHT OF EQUITY OF
REDEMPTION REDEMPTION

326
General rule: Exists General rule: Must be
only in the case of exercised within the 90- 11. PARTITION (Rule 69)
extrajudicial 120 day period after the
foreclosure of the judgment becomes final Partition
mortgage It is the separation, division and assignment of
Except: When, even property held in common among co-owners in
Except: When, in a after the foreclosure proportion to their respective interests in the said
judicial foreclosure, sale itself has been property.
the mortgagee is PNB made, no order of
or a bank or banking confirmation of the sale Note: The procedure for judicial partition is provided
institution has been made. under Rule 69. For extrajudicial partition, no court
Otherwise, no intervention is required
PNB’s charter and the redemption can be
General Banking Act made anymore. a. WHO MAY FILE A COMPLAINT; WHO
confer on the SHOULD BE MADE DEFENDANTS
mortgagor, his
successors-in-interest,
or judgment creditor the
right to redeem the
property sold on
foreclosure after
confirmation by the
court of the foreclosure
sale within one year
from the date of the
registration of the
certificate of sale in the
Registry of Property.
Plaintiff
Exception to The action shall be brought by the person who has
exception: a right to compel the partition of real estate (Rule
Where the mortgagor is 69, Section 1) or of an estate composed of personal
a juridical entity whose property, or both real and personal property (Rule
property has been the 69, Section 13), i.e. a co-owner.
subject of an
extrajudicial The plaintiff is a person who is the supposed co-
foreclosure, the right owner of the property or estate sought to be
to redeem may be partitioned.
exercised until, but not
after, the registration of General Rule: Partition is allowed to file a petition
the certificate of for partition ANY TIME as the Civil Code provides
sale/foreclosure with that NO co-owner shall be obliged to remain in the
the Register of Deeds, co-ownership.
which in no case shall
be more than three (3)
months after the
foreclosure, which ever
is earlier. (General
Banking Act of 2000,
Sec. 47) Exceptions:

327
 1. Existence of an agreement among co- b. MATTERS TO ALLEGE IN THE
owners to retain the property undivided COMPLAINT FOR PARTITION
for not exceeding ten (10) years;
2. When co-owners are prohibited by the
donor or testator for a period not
exceeding twenty (20) years;
3. When partition is prohibited by law;
and
4. When the property is NOT subject to a
physical division and to do so would
render it unserviceable for the use which
it is unintended.

Complaint for Partition

Defendant
The defendants are all the co-owners of the
disputed property. All the co-owners MUST be
joined. Accordingly, an action will not lie without the
joinder of all co-owners and other persons having
interest in the property. (Reyes v. Cordero, G.R. No.
L-14242, 1920)
All the co-owners, therefore, are INDISPENSABLE
parties.
1. Nature and extent of petitioner’s title;
2. Adequate description of the real estate of
which partition is demanded; and
3. A demand for the accounting of the rents,
profits, and other income from the property
which he may be entitled to.

Non-inclusion of co-owner BEFORE judgment: not

a ground for Motion to Dismiss. The remedy is to
file a motion to include party.

Non-inclusion of co-owner AFTER judgment:

judgment is VOID because co-owners are Petitioner MUST join as defendants all other
indispensable parties. persons interested in the property.

Note: Creditors/assignees of co-owners may
intervene and object to a partition effected without
their concurrence. BUT the creditors/assignees
cannot impugn a partition already executed, unless
there has been fraud, or in case partition was made
notwithstanding a formal opposition presented to
prevent it.
A demand for the accounting MUST be included as
they are parts of the cause of action for partition.
They cannot be demanded in another action and
will be BARRED if NOT SET UP in the SAME
action.

The Municipal Trial Court MAY HAVE

JURISDICTION in actions for partition if the value of
the real property is less than Three Hundred
Thousand (P300,000) if not in Metro Manila or less
than Four Hundred Thousand (P400,000) if located c. TWO STAGES IN EVERY ACTION FOR
in Metro Manila. PARTITION

328

A reading of the Rules will reveal that there are
actually THREE stages in the action, EACH of
which is APPEALABLE:
1. The order of partition where the property of
the partition is determined;
2. The judgment as to the accounting of the
fruits and income of the property; and
3. The judgment of partition. (Riano, 2009
ed.)
Note: From the first or second stages BEFORE
judgment of partition, appeal is by notice of appeal
and record on appeal within 30 days from notice of
court order. AFTER judgment is rendered, the
remedy against a judgment of partition is only by
notice of appeal within 15 day from receipt of
judgment.
Proof of legal acknowledgment as an heir is not a
prerequisite before an action for partition may be
filed. An action for partition is at once an action for
declaration of co-ownership and for segregation and
conveyance of a determined portion of the
properties involved. If the defendant asserts
exclusive title over the property, the action for
partition should not be dismissed. Rather, the court
should resolve the case and if the plaintiff is unable
to sustain his claimed status as a co- owner, the
court should dismiss the action, not because the
wrong remedy was availed of, but because no basis
exists for requiring the defendant to submit to
partition. If, on the other hand, the court after trial
should find the existence of co- ownership among
the parties, the court may and should order the
partition of the properties in the same action. (Balo
v. CA G.R. 129704 Sept. 30, 2005)
d. ORDER OF PARTITION AND PARTITION
BY AGREEMENT
For an Order of Partition to Issue, the Court
Must Determine:
1. Whether the plaintiff is truly a co-owner of the
property;
2. Whether there is indeed a co-ownership among
the parties; and
3. That a partition is not legally proscribed thus may
be allowed.
The court shall order the partition of the property
among all the parties in interest, if AFTER TRIAL it
finds that the plaintiff has the right to partition
(Section 2, Rule 69 of the Rules of Court)
A final order decreeing PARTITION and
ACCOUNTING may be APPEALED by any party
aggrieved thereby.
Partition by Agreement
The parties may also make the partition among
themselves by proper instruments of conveyance.
If they do agree, the court shall then confirm the
partition so agreed upon by all of the parties, and
such partition, together with the order of the court
confirming the same, shall be recorded in the
registry of deeds of the place in which the property
is situated (Section. 2, Rule 69 of the Rules of
Court)
329

If parties CANNOT AGREE to the partition,
appointment of commissioners shall be had to
preside over the partition proceedings.
In a situation where there remains an issue as to
the expenses chargeable to the estate, partition is
inappropriate. In this case, petitioner does not
dispute the findings that “certain expenses”
including those related to her father’s final illness
and burial have not been properly settled. Thus, the
heirs have to submit their father’s estate to
settlement because the determination of these
expenses cannot be done in an action for partition.
But, the heirs or distributees of the properties may
take possession thereof even before the settlement
of accounts, as long as they first file a bond
conditioned on the payment of the estate’s
obligations. (Figuracion-Gerilla v. Vda. de
Figuracion, G.R. 154322, Aug 16, 2005)
e. PARTITION BY COMMISSIONERS;
APPOINTMENT OF COMMISSIONERS;
COMMISSIONER’S REPORT; COURT
ACTION UPON COMMISSIONER’S REPORT
PARTITION BY COMMISSIONERS:
If the parties are unable to agree upon the partition,
the court shall appoint not more than three (3)
competent and disinterested persons as
commissioners to make the partition, commanding
them to set off to the plaintiff and to each party in
interest such part and proportion of the property as
the court shall direct. (Rule 69, Section 3)
Commissioners are NOT ALLOWED to adjudicate
on questions of title or ownership of the property. It
is merely their duty to make OR effect the partition.
Commissioners are required to take an OATH that
they will faithfully perform their duties as
commissioners. Such oath shall be FILED in court.
In making the partition, the commissioners shall
view and examine the real estate, after due notice
to the parties to attend at such view and
examination, and shall hear the parties as to their
preference in the portion of the property to be set
apart to them and the comparative value thereof,
and shall set apart the same to the parties in lots or
parcels as will be most advantageous and
equitable, having due regard to the
improvements, situation and quality of the
different parts thereof. (Rule 69, Section 3)
Commissioner’s Report:
1. The commissioners shall make a full and
accurate report to the court of:
2. Partition proceedings
3. Assignment of real estate to one of the
parties; or
4. The sale of the same.
Copies of the report shall be SERVED on ALL
INTERESTED PARTIES. Opposition to such
partition must be commenced by filing an objection
within ten (10) days from receipt of report.
Confirmation of the Court Required
No proceeding had before or conducted by the
commissioners shall pass the title to the property or
bind the parties UNTIL the court shall have
ACCEPTED the report of the commissioners and
RENDERED JUDGMENT thereon.
Court action upon commissioner’s report
330
After an objection has been filed OR the expiration judgment shall be to vest in the party making the
of the ten (10) day period allowed for such payment the whole of the real estate free from any
objection, the court may, UPON HEARING: interest on the part of the other parties to the action.

If the property is sold and the sale confirmed by the

1. Accept the report and render judgment in
accordance therewith; or,
2. For cause shown, recommit the same to
the commissioners for further report of
facts; or
3. Set aside the report and appoint new
commissioners; or
4. Accept the report in part and reject it in
part; and
5. Make such order and render such
judgment as shall effectuate a fair and just
partition of the real estate, or of its value, if
assigned or sold as above provided,
between the several owners thereof. (Rule
69, Section 2)
court, the judgment shall state the name of the
purchaser or purchasers and a definite description
of the parcels of real estate sold to each purchaser,
and the effect of the judgment shall be to vest the
real estate in the purchaser or purchasers making
the payment or payments, free from the claims of
any of the parties to the action.
A certified copy of the judgment shall in either case
be recorded in the registry of deeds of the place
in which the real estate is situated, and the
expenses of such recording shall be taxed as part
of the costs of the action. (Rule 69, Section 11)

g. PARTITION OF PERSONAL PROPERTY

The provisions of this Rule shall apply to partitions

of estates composed of personal property, or of
both real and personal property, in so far as the
same may be applicable. (Rule 69, Section 13)
f. JUDGMENT AND ITS EFFECTS

h. PRESCRIPTION OF ACTION
The judgment shall state definitely, by metes and
bounds and adequate description, the particular
portion of the real estate assigned to each party.

The effect of the judgment shall be to vest in each

party to the action in severalty the portion of the real
estate assigned to him.

If the whole property is assigned to one of the

parties upon his paying to the others the sum or
sums ordered by the court the effect of the

331
The right of action to demand partition does NOT unlawful withholding of possession is sufficient to
prescribe, UNLESS one of the interested parties make out a case for unlawful detainer. Hence, the
openly and adversely occupies the property without phrase "unlawful withholding" has been held to
recognizing the co-ownership or repudiates the imply possession on the part of defendant, which
same. In this exception, acquisitive prescription may was legal in the beginning, having no other source
set in. (Regalado, 2008 ed.) than a contract, express or implied, and which later
expired as a right and is being withheld by
A co-owner has the right to sue for recovery of defendant. (Ross Rica v Sps. Ong G.R. 132197,
possession of the co-owned and undivided Aug. 16, 2005)
property unlawfully occupied by another co- Note: Forcible Entry and Unlawful Detainer are
owner. He is at once an owner of the whole summary in nature to provide for an expeditious
property, and over the whole, exercises dominion. means of protecting actual possession, or the right
A co-owner may file an action for recovery of of possession of the property involved.
possession against another co-owners who takes
possession of the entire property. However, the
only effect a judgment in this case would have is to
recognize the co-ownership. A partition must be
made (judicially or extrajudicially) before a specific
portion can be allotted to any co-owner. (De Guia v.
CA, 413 SCRA 114)
a. DEFINITIONS AND DISTINCTION
12. FORCIBLE ENTRY AND UNLAWFUL
DETAINER (Rule 70)
Three (3) kinds of actions available to recover
possession of real property:

1. Accion interdictal
An action where the issue is the right of physical or
material possession of the subject real property
independent of any claim of ownership. This
includes forcible entry and unlawful detainer.

2. Accion publiciana
It is plenary action to recover the legal right of FORCIBLE ENTRY UNLAWFUL
possession which may be brought when the DETAINER
dispossession has lasted for more than one (1)
year. If at more than one (1) year had elapsed, the
action should be not forcible entry or unlawful
detainer but an accion publiciana

3. Accion reivindicatoria
This action involves not only possession but
recovery of ownership of the property. Ground: Ground:
Deprivation of physical Unlawful withholding of
FORCIBLE ENTRY: where one is deprived of possession of any land possession of any land
physical possession of real property by means of or building either by or building after the
Force, Intimidation, Strategy, Threats, or Stealth Force, Intimidation, expiration or
(FISTS). Threat, Strategy or termination of the right
Stealth (FISTS), which to hold possession by
UNLAWFUL DETAINER: where one illegally shall include every virtue of any contract,
withholds possession after the expiration or situation or condition express or implied.
termination of his right to hold possession under under which one (Sps. Del Rosario vs.
any contract, express or implied.

The allegation in the complaint that there was

332
person can wrongfully Gerry Roxas The one (1) year period The one (1) year period
enter upon real Foundation, G.R. No. is generally counted is counted from the
property and exclude 170575, 2011) from the date of actual date of last demand.
another, who has had entry on the property.
prior possession,
therefrom. (Sps. Del
Rosario vs. Gerry
Roxas Foundation,
G.R. No. 170575, 2011)

There are two reasons why the complaint was not

for unlawful detainer. Firstly, by averring that the
respondent constructed his shanty on the lot without
their consent and then praying that the MeTC direct
The possession of the The possession of the the respondent to pay them rent from the inception
defendant is unlawful defendant is lawful from of the respondent’s occupation of the lot, no other
from the beginning; the beginning becomes conclusion can be made except that the petitioners
issue is which party has illegal by reason of the had always considered respondent’s occupation of
prior de facto expiration or the same to be unlawful from the very beginning. It
possession; termination of his right is a settled rule that in order to justify an action for
to the possession of the unlawful detainer, the owner’s permission or
property; tolerance must be present at the beginning of the
possession."
Secondly, what the petitioners actually filed was a
fatally defective complaint for forcible entry,
considering that there was no allegation therein
regarding the petitioners’ prior physical possession
of the lot. In actions for forcible entry, two
allegations are mandatory for the MTC to acquire
The law does not Plaintiff must first make jurisdiction: first, the plaintiff must allege his prior
require previous such demand which is physical possession of the property; and second, he
demand for the jurisdictional in nature; must also allege that he was deprived of his
defendant to vacate; possession by any of the means provided for in
Section 1,Rule 70 of the Rules of Court.
The word “possession” as used in forcible entry and
unlawful detainer, means nothing more than
physical possession, not legal possession in
contemplated in civil law." (Sales v Barro, G.R.
171678, Dec. 10, 2008)

The plaintiff must prove The plaintiff need not

that he was in prior have been in prior
physical possession of physical possession;
the premises until he
was deprived by the
defendant; and
b. DISTINGUISHED FROM ACCION
PUBLICIANA, ACCION REIVINDICATORIA
AND ACCION INTERDICTAL

333
 c. HOW TO DETERMINE JURISDICTION IN
ACCION ACCION ACCION
ACCION PUBLICIANA, ACCION
INTERDICTA PUBLICIAN REIVINDICATORI
REIVINDICATORIA AND ACCION
L A A
INTERDICTAL

Summary A plenary An action for the

action for the action (full recovery of
recovery of trial ownership, which
physical proceeding) necessarily
possession for the includes the
where the recovery of recovery of
dispossessio the REAL possession
n has not right of Jurisdiction is determined by the allegations of the
lasted more possession complaint. The mere raising of the issue of tenancy
than one (1) when the does not automatically divest the court of
year dispossessio jurisdiction because the jurisdiction of the court is
n has lasted determined by the allegations of the complaint and
for more is not dependent upon the defenses set up by the
than one (1) defendant.  (Mariño, Jr. v. Gamilla, G.R. No.
year 132400,  2005)

Jurisdiction in the RTC is vested if the value of the

property would exceed P20,000 or P50,000, if it
were located in Metro Manila. Otherwise,
jurisdiction would be vested in the MTC, MeTC, or
MCTC. (Section 33 of B.P. 129, as amended by
R.A. 7691)
Under MTC’s RTC’s RTC’s jurisdiction
jurisdiction jurisdiction if if the value of
only the value of property exceeds
property P20,000, or
exceeds P50,000 in Metro
P20,000, or Manila
P50,000 in
Metro Manila d. WHO MAY INSTITUTE THE ACTION AND
WHEN; AGAINST WHOM THE ACTION MAY
BE MAINTAINED

334
 period for the filing of the summary action. (Munoz
Plaintiff: v. CA, G.R. No. 102693, 1992)

1. A person deprived of the possession of

any land or building by force, intimidation, e. PLEADINGS ALLOWED
threat, strategy, or stealth; or
2. A lessor, vendor, vendee, or other person
against whom the possession of any land
or building is unlawfully withheld after the
expiration or termination of the right to hold
possession, by virtue of any contract,
express or implied, or his/her legal
representatives or assigns. The only pleadings allowed to be filed are the
complaint, compulsory counterclaim and cross-
claim pleaded in the answer, and the answers
thereto. All pleadings shall be verified. (Rule 70,
Section 5)

Note: The plaintiff in FE/UD actions must be

entitled to the physical possession of the property.
He/she does not necessarily have to be the owner
of such.
f. ACTION ON THE COMPLAINT
Defendant: One who is in possession of the
property who may either be a/an:

The court may:

1. Lessee;
2. Sublessee; or
3. Intruder.

1. Dismiss the case outright on any of the

grounds for the dismissal of a civil action
which are apparent therein; or
2. If no ground for dismissal is found, it shall
When proceedings instituted forthwith issue summons. (Rule 70,
Any time within one year after such unlawful Section 5)
deprivation or withholding of possession

Note: The failure to allege the TIME when unlawful

deprivation took place is fatal because this will
determine the start of the counting of the 1 year

335
 Note: If several demands were made, the one year
period is counted from the last demand letter
received, unless the subsequent demands were
merely in the nature of reminders of the original
demand, in which case the one-year period is
counted from the first demand.

g. WHEN DEMAND IS NECESSARY Effect of non-compliance with demand

The lessor may proceed against the lessee if the
demand is not complied with AFTER:

In Unlawful Detainer cases, unless there exists a

stipulation to the contrary, such actions shall only 1. 15 days in the case of land; or
be commenced after demand to pay or comply 2. 5 days in case of buildings.
with the conditions of the lease AND to vacate is
made upon the lessee.

Note: A demand in the alternative either to pay the

increased rental or otherwise vacate the land is not
the demand which gives rise to a cause of action for
unlawful detainer.
Prior demand in unlawful detainer is NOT
Form of demand required when:

1. Written notice served upon the person 1. The purpose of the action is to terminate
found on the premises, or by posting such the lease because of expiry of term and
notice on the premises if no person be not because of failure to pay rentals;
found thereon (Rule 70, Section 2); 2. Purpose of suit is not for ejectment but for
2. By substituted service or registered mail; enforcement of terms of contract; or
3. Jurisprudence provides that demand upon 3. When the defendant is not a tenant but a
a tenant may be oral, but sufficient mere intruder.
evidence must be adduced to show that
there was indeed a demand like
testimonies from disinterested and
unbiased witnesses. (Jakihaca v. Aquino,
G.R. No. 83982, 1990)

336
 h. PRELIMINARY INJUNCTION AND ownership shall be resolved only to determine the
PRELIMINARY MANDATORY INJUNCTION issue of possession. (Section 3 of R.A. 7691)

When the defendant raises the issue of ownership,

the court may resolve the issue of ownership only
under the following conditions:

The court may grant preliminary injunction to

prevent the defendant from committing further acts
of dispossession against the plaintiff.
1.
A possessor deprived of his possession through
forcible entry or unlawful detainer may, within five
(5) days from the filing of the complaint, present a 2.
motion for the issuance of a writ of preliminary
mandatory injunction to restore him in his
possession.
When the issue of possession cannot be
resolved without resolving the issue of
ownership; and
The issue of ownership shall be resolved
only to determine the issue of possession.
(Rule 70, Section 16)

The court shall decide the motion within 30 days

from the filing thereof. (Rule 70, Section 15)

Note: If the case is pending, the petition for

preliminary injunction may only be filed by the
plaintiff; if the case is on appeal, the petition may be
filed by either the plaintiff or the defendant. (Rule
70, Section 15)

Such judgment would not bar an action between the

same parties respecting title to the land or building.
The resolution of the MeTC on the ownership of the
property is merely provisional or interlocutory. Any
i. RESOLVING DEFENSE OF OWNERSHIP question involving the issue of ownership should be
raised and resolved in a separate action brought
specifically to settle the question with finality.
(Roberts v. Papio, G.R. No. 166714, 2007)

The issue of ownership shall be resolved only to

determine the issue of possession. (Rule 70,
Section 16)
The assertion by the defendant of ownership over
the disputed property does not serve to divest the
inferior court of its jurisdiction. The defendant
cannot deprive the court of jurisdiction by merely
claiming ownership of the property involved. (Rural
Bank of Sta. Ignacia v. Dimatulac, G.R. No. 142015,
2003); (Perez v. Cruz, G.R. No. 142503, 2003). If
the defendant raises the question of ownership and
the issue of possession cannot be resolved without
deciding the question of ownership, the issue of

337
Such judgment would not bar an action between the
same parties respecting title to the land or building.
The resolution of the MeTC on the ownership of the
property is merely provisional or interlocutory. Any
question involving the issue of ownership should be
raised and resolved in a separate action brought
specifically to settle the question with finality.
(Roberts v. Papio, [G.R. No. 166714, 2007)
j. HOW TO STAY THE IMMEDIATE
EXECUTION OF JUDGMENT
Defendant must take the following steps to stay
the execution of the judgment:
1. Perfect an appeal;
2. File a supersedeas bond to pay for the
rents, damages and costs accruing down to
the time of the judgment appealed from; and
3. Deposit periodically with the RTC, during the
pendency of the appeal, the adjudged amount
of rent due under the contract as determined in
the judgment of the MTC, or if there be no
contract, the reasonable value of the use and
occupation of the premises. (Rule 70, Section
19)
Note: If the defendant can no longer pay this shall
not defeat the appeal. He will, however, be
compelled to surrender possession of the property
as the plaintiff will be entitled to execution as a
matter of right.
4. Upon motion of the plaintiff, within 10 days from
the perfection of the appeal to the RTC in
forcible entry and unlawful detainer cases, the
latter may issue a writ of preliminary
mandatory injunction to restore the plaintiff in
possession of the court is satisfied that the
defendant’s appeal is frivolous or dilatory, or
that the appeal of the plaintiff is prima facie
meritorious. (Rule 70, Section 20)
Note: In forcible entry and unlawful detainer cases,
the judgment of the RTC against the defendant
shall be immediately executory, without prejudice to
a further appeal that may be taken therefrom. (Rule
70, Section 21)
The judgment is immediately executory in order to
avoid injustice to a lawful possessor.
Note: The judgment is immediately executory only
when the judgment is against the defendant. If the
judgment is in favor of the defendant, such is not
immediately executory and can be executed only
after the lapse of the regular 15-day period to
appeal without the plaintiff having perfected the
same.
Even if RTC judgments in unlawful detainer cases
are immediately executory, preliminary injunction
may still be granted. There need only be clear
showing that there exists a right to be protected and
that the acts against which the writ is to be directed
violate said right. (Benedicto v. CA, G.R. No.
157604, 2005)
338
 k. SUMMARY PROCEDURE, PROHIBITED
PLEADINGS
Forcible entry and unlawful detainer actions are
summary in nature designed to provide for an
expeditious means of protecting actual possession
or the right to possession of the property involved.
(Tubiano v. Razo, G.R. No. 132598, 2000) These
actions shall both fall under the coverage of the
Rules of Summary Procedure irrespective of the
amount of damages or unpaid rental sought to be
recovered. (Rule 70, Section 21)
Prohibited pleadings and motions:
1. Motion to dismiss the complaint except on
the ground of lack of jurisdiction over the
subject matter, or failure to comply with
section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of
a judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions. (Rule 70, Section 13)
As a general rule, a judgment in favor of the plaintiff
in an ejectment suit is immediately executory, in
order to prevent further damage to him arising from
the loss of possession of the property in question.
To stay the immediate execution of the said
judgment while the appeal is pending the foregoing
provision requires that the following requisites must
concur: (1) the defendant perfects his appeal; (2) he
files a supersedeas bond; and (3) he periodically
deposits the rentals which become due during the
pendency of the appeal. The failure of the
defendant to comply with any of these conditions is
a ground for the outright execution of the judgment,
the duty of the court in this respect being
"ministerial and imperative." Hence, if the
defendant-appellant perfected the appeal but failed
to file a supersedeas bond, the immediate
execution of the judgment would automatically
follow. Conversely, the filing of a supersedeas bond
will not stay the execution of the judgment if the
appeal is not perfected. Necessarily then, the
supersedeas bond should be filed within the period
for the perfection of the appeal. (Acbang v. Luczon,
G.R. No. 164246, 2014)
13. CONTEMPT (Rule 71)
Contempt is disobedience and utter disregard to
the court by acting in opposition to its authority,
justice and dignity. It also includes conduct
which tends to bring the authority of the court and
the administration of law into disrepute or in a
manner which impedes the due administration of
justice. (Siy v. National Labor Relations
Commission, G.R. No. 158971, 2005)
Twofold aspect:
339
1. Proper punishment for the disrespect to
the court or its order; and Civil and Criminal contempt distinguished
2. To compel the guilty party’s performance
of some act or duty required of him by the
court. (Halili v. CIR, G.R. No. L-24864,
1985)

CIVIL CONTEMPT CRIMINAL

CONTEMPT

It is the failure to do It is a conduct directed

a. KINDS OF CONTEMPT something ordered to against the authority
be done by a court or a and dignity of the court
judge for the benefit of or a judge acting
the opposing party judicially; it is an
therein and is therefore obstructing the
and offense against the administration of justice
party in whose behalf which tends to bring the
the violated order was court into disrepute or
made disrespect

b. PURPOSE AND NATURE OF EACH

The purpose is to The purpose is to
compensate for the punish, to vindicate the
benefit of a party authority of the court
and protect its outraged
dignity

The rules of procedure Should be conducted in

1. Civil or Criminal, depending on the nature governing contempt accordance with the
and effect of the contemptuous act. proceedings or criminal principles and rules
2. Direct or indirect, according to the manner prosecutions ordinarily applicable to criminal
of commission. are inapplicable to civil cases, insofar as such
contempt proceedings procedure is consistent
with the summary

340
 nature of contempt e)    Refusal to
proceedings subscribe an affidavit or
deposition when
lawfully required to do
so ;
f)     Acts of a party or a
counsel which
constitute willful and
deliberate forum
shopping; and
Direct and indirect contempt distinguished g)    Unfounded
accusations or
allegations or words in
a pleading tending to
embarrass the court or
to bring it into
disrepute. (Re: Letter
DIRECT CONTEMPT INDIRECT CONTEMPT dated 21 Feb. 2005 of
Atty. Noel Sorreda,
A.M. No. 05-3-04-SC.
July 22, 2005)
dispossessed or ejected
from any real property
by the judgment or
process of any court of
competent jurisdiction,
enters or attempts or
induces another to
enter into or upon such
real property, for the
purpose of executing
acts of ownership or
possession, or in any
manner disturbs the
possession given to the
person adjudged to be
entitled thereto;
c) Any abuse of or any
unlawful interference
with the processes or
proceedings of a court
not constituting direct
contempt under Section
1 of this Rule;

In general, it is It is not committed in d) Any improper

committed in the the presence of the conduct tending,
presence of or so near court, but done at a directly or indirectly, to
the court or judge as to distance which tends to impede, obstruct, or
obstruct or interrupt the belittle, degrade, degrade the
proceedings before it obstruct or embarrass administration of justice;
the court and justice
e)   Assuming to be an
attorney or an officer of
a court, and acting as
such without authority;

f)    Failure to obey a
subpoena duly served;
Acts constituting Acts constituting and
direct contempt are: indirect contempt are:
a)    Misbehavior in the a)  Misbehavior an g) The rescue, or
presence of or so near officer of a court in the attempted rescue, of a
the court as to obstruct performance of his person or property in
or interrupt the official duties or in his the custody of an officer
proceedings before it; official transactions; by virtue of an order or
b)    Disrespect toward process of a court held
the court; b) Disobedience of or by him.
c)    Offensive resistance to a lawful
personalities towards writ, process, order, or
others; judgment of a court,
d)    Refusal to be including the act of a
sworn as a witness or person who, after being
to answer as a witness;

341
 d. REMEDY AGAINST INDIRECT
CONTEMPT; PENALTY

c. REMEDY AGAINST DIRECT

CONTEMPT; PENALTY
Constructive contempt

Punishment if committed against:

Contempt in facie curiae

Punishment if committed against: 1. RTC or a court of equivalent or higher

rank: Fine not exceeding P30,000 or
imprisonment not exceeding 6 months or
both.
2. MTC: Fine not exceeding P5,000 or
imprisonment not exceeding 1 month or
both. (Rule 71, Section 7)
1. RTC or court of equal or higher rank:
Fine not exceeding P2,000 or
imprisonment not exceeding 10 days or
both.
2. MTC: Fine not exceeding P200 or
imprisonment not exceeding 1 day or both.
(Rule 72, Section 1)
Note: The penalty is immediately executory, unless
a bond is filed.

Remedy:
Appeal (Rule 71, Section 11)

Note: If contempt consists in the refusal or omission

to do an act which is yet within the power of the
respondent to perform, he may be imprisoned by
order of the court concerned until he performs it.

Remedy is certiorari/ prohibition (NOT appeal) and e. HOW CONTEMPT PROCEEDINGS ARE
filing of such petition for certiorari or prohibition shall COMMENCED
suspend the execution of the judgment, provided a
bond is filed. (Rule 71, Section 2)

This bond is conditioned upon his performance of

the judgment should the petition be decided against
him.

342
2 Modes of commencing proceeding for indirect
contempt:
1. Motu proprio by the court through an order
or any other formal charge requiring the
respondent to show cause why he should
not be punished for contempt; and
2. Verified petition charging for indirect
contempt with supporting particulars and
certified true copies of documents or
papers involved therein, and upon full
compliance with the requirements for filing
initiatory pleadings for civil actions in the
court concerned. (Rule 71, Section 4)
Requisites before accused may be punished for
indirect contempt:
1. Charge in writing to be filed or a show
cause order issued by the court;
2. Opportunity for person charged to appear
and explain his conduct; and
3. To be heard by himself or counsel
f. ACTS DEEMED PUNISHABLE AS
INDIRECT CONTEMPT
A person guilty of any of the following acts may be
punished for indirect contempt:
1. Misbehavior an officer of a court in the
performance of his official duties or in his
official transactions;
2. Disobedience of or resistance to a lawful
writ, process, order, or judgment of a court,
including the act of a person who, after
being dispossessed or ejected from any
real property by the judgment or process of
any court of competent jurisdiction, enters
or attempts or induces another to enter
into or upon such real property, for the
purpose of executing acts of ownership or
possession, or in any manner disturbs the
possession given to the person adjudged
to be entitled thereto;
3. Any abuse of or any unlawful interference
with the processes or proceedings of a
court not constituting direct contempt
under section 1 of this Rule;
4. Any improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade
the administration of justice;
5. Assuming to be an attorney or an officer of
a court, and acting as such without
authority;
6. Failure to obey a subpoena duly served;
7. The rescue, or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process of a
court held by him; (Rule 71, Section 3) and
8. Failure by counsel to inform the court of
the death of his client, since it constitutes
an improper conduct tending to impede the
administration of justice. (Rule 71, Section
3)
343
Note: The SC not only has plenary disciplinary
authority over attorneys but also has the inherent
power to punish for contempt. The former stems
from the Court’s constitutional mandate to regulate
admission into the practice of law, which includes
as well authority to regulate the practice itself of
law; the latter is “necessary for its own protection
against an improper interference with the due
administration of justice.” (Zaldivar v.
Sandiganbayan,G.R. Nos. 79690-707, 1988)
Rule 71 applies suppletorily to contempt committed
against persons exercising quasi-judicial functions.
(Rule 71, Section 12)
Quasi-judicial bodies that have the power to cite
persons for indirect contempt can only do so by
initiating them in the proper RTC. It is not within
their jurisdiction and competence to decide the
indirect contempt cases. The RTC of the place
where contempt has been committed shall have
jurisdiction over the charges for indirect contempt
that may be filed. (Rule 71, Section 12)

END OF TOPIC

g. WHEN IMPRISONMENT SHALL BE

IMPOSED

When the contempt consists in the refusal or

omission to do an act which is yet in the power of
the respondent to perform, he may be imprisoned
by order of the court concerned until he performs it.

The punishment is imposed for the benefit of a

complainant or a party to a suit who has been
injured aside from the need to compel performance
of the orders or decrees of the court, which the
contemnor refuses to obey although able to do so.
In effect, it is within the power of the person
adjudged guilty of contempt to set himself free.

h. CONTEMPT AGAINST QUASI-JUDICIAL

BODIES

344
 B. SUMMARY SETTLEMENT OF
ESTATES

SPECIAL PROCEEDINGS
1. Extrajudicial settlement by
agreement between heirs, when
allowed
2. Two-year prescriptive period
3. Affidavit of self-adjudication by
sole heir
4. Summary settlement of estates
of small value, when allowed
5. Remedies of aggrieved parties
after extrajudicial settlement of
estate
A. SETTLEMENT OF ESTATE OF
DECEASED PERSONS, VENUE
AND PROCESS

1. Which court has jurisdiction

2. Venue in judicial settlement of
estate C. PRODUCTION AND PROBATE
3. Extent of jurisdiction of probate OF WILL
court
4. Powers and duties of probate
court

1. Nature of probate proceeding

2. Who may petition for probate;
persons entitled to notice

345
 1. When and to whom letters of
administration granted
2. Order of preference
3. Opposition to issuance of letters
testamentary; simultaneous
filing of
D. ALLOWANCE OR 4. petition for administration
DISALLOWANCE OF WILL 5. Powers and duties of executors
and administrators; restrictions
on the
6. powers
7. Appointment of special
administrator
1. Contents of petition for 8. Grounds for removal of
allowance of will administrator
2. Grounds for disallowing a will
3. Reprobate

a. Requisites before a will proved

abroad would be allowed in the
Philippines

F. CLAIMS AGAINST THE ESTATE

4. Effects of probate

1. Time within which claims shall

be filed; exceptions
2. Statute of non-claims
3. Claim of executor or
administrator against the estate
4. Payment of debts

E. LETTERS TESTAMENTARY AND

OF ADMINISTRATION

346
G. ACTIONS BY AND AGAINST
EXECUTORS AND
ADMINISTRATORS
1. Actions that may be brought
against executors and
administrators
2. Requisites before creditor may
bring an action for recovery of
property fraudulently conveyed
by the deceased
J. ESCHEAT
H. DISTRIBUTION AND PARTITION
1. Liquidation
2. Project of partition
3. Remedy of an heir entitled to
residue but not given his share
4. Instances when probate court
may issue writ of execution
I. TRUSTEES
1. Distinguished from
executor/administrator
2. Conditions of the bond
3. Requisites for the removal and
resignation of a trustee
4. Grounds for removal and
resignation of a trustee
5. Extent of authority of trustee
1. When to file
2. Requisites for filing of petition
3. Remedy of respondent against
petition; period for filing a claim
347
K. GUARDIANSHIP 3. Inter-country adoption

1. General powers and duties of a. When allowed

b. Functions of the RTC
guardians c. “Best interest of the minor”
2. Conditions of the bond of the standard
guardian
3. Rule on guardianship over
minor

M. WRIT OF HABEAS CORPUS

L. ADOPTION

1. Contents of the petition

2. Contents of the return
3. Distinguish peremptory writ
1. Distinguish domestic adoption from preliminary citation
from inter-country adoption 4. When not proper/applicable
2. Domestic Adoption Act 5. When writ
disallowed/discharged
6. Distinguish from writ of
amparo and habeas data
7. Rules on Custody of Minors
and Writ of Habeas Corpus
a. Effects of adoption in relation to Custody of
b. Instances when adoption may
be rescinded
Minors (A.M. No. 03-04-04-
c. Effects of rescission of SC)
adoption

348
N. WRIT OF AMPARO (A.M. NO. 07- 2. Availability of writ
9-12-SC) 3. Distinguished from habeas
corpus and amparo
4. Contents of the petition
5. Contents of return
6. Instances when petition may be
heard in chambers
1. Coverage 7. Consolidation
2. Distinguish from habeas corpus 8. Effect of filing of a criminal
and habeas data action
3. Differences between amparo 9. Institution of separate action
and search warrant 10. Quantum of proof in application
4. Who may file for issuance of writ of amparo
5. Contents of return
6. Effects of failure to file return
7. Omnibus waiver rule
8. Procedure for hearing
9. Institution of separate action
10. Effect of filing of a criminal
action
11. Consolidation
12. Interim reliefs available to
petitioner and respondent
13. Quantum of proof in application
for issuance of writ of amparo P. CHANGE OF NAME

1. Differences under Rule 103, R.A.

No. 9048 and Rule 108
2. Grounds for change of name

O. WRIT OF HABEAS DATA (A.M.

NO. 08-1-16-SC)

1. Scope of writ

349
Q. ABSENTEES 1. Judgments and orders for which
appeal may be taken
2. When to appeal
3. Modes of appeal

1. Purpose of the rule

2. Who may file; when to file

R. CANCELLATION OR
CORRECTION OF ENTRIES IN
THE CIVIL REGISTRY

1. Entries subject to cancellation

or correction under Rule 108, in
relation to R.A. No. 9048

S. APPEALS IN SPECIAL
PROCEEDINGS

350

SPECIAL PROCEEDING
A remedy by which a party seeks to establish a
status, a right or a particular fact. (Rule 1, Section
3)
Subject Matter of Special Proceedings
Settlement of estate of deceased persons;
Escheat;
Guardianship and custody of children;
Trustees;
Adoption;
Rescission and revocation of adoption;
Hospitalization of insane persons;
Habeas corpus;
Change of name;
Voluntary dissolution of corporations;
Judicial approval of voluntary recognition of minor
natural children;
Constitution of family home;
Declaration of absence and death;
Cancellation of correction of entries in the civil
registry. (Rule 72, Section 1)
Note: This list is not exclusive. Any petition by
which a party seeks to establish a status, right or
particular fact can fall under special
proceedings. (Festin, Special Proceedings, A
Foresight to the Bar Exam: Question and
Answer Noted, Bar Questions, Cases and
Updated Laws, 2011)
Applicability of Rules of Civil Actions
In the absence of special provisions, the rules
provided for in ordinary actions shall be, as far
as practicable, applicable in special
proceedings. (Rule 72, Section 2)
Specific provisions of Section 5, Rule 86 of the
Rules of Court should prevail over the general
provisions of Section 11, Rule 6 of the Rules of
Court because the settlement of deceased persons
are primarily governed by the rules on special
proceedings. The Rules of Court only apply
suppletorily. (Metropolitan Bank & Trust Company
v. Absolute Management Corporation, GR No.
170498, 2013)
Distinction between “action” and “special
proceedings”
An action is a formal demand of one’s right in a
court in a manner prescribed by the court or by the
law. It is the method of applying legal remedies
according to definite established rules.
The term “special proceeding” may be defined as
an application or proceeding to establish the status
or right of a party or a particular fact. Usually, in
special proceeding, no formal pleadings are
required, unless the statute expressly so provides.
In special proceedings, the remedy is granted
generally upon an application or motion. (Hagans v.
Wislizenus, 42 PHIL 880, 1992)
An action for reconveyance and annulment of title
with damages is a civil action, whereas matters
relating to settlement of the estate of a deceased
person such as advancement of property made by
the decedent, partake of the nature of a special
proceeding, which concomitantly requires the
application of specific rules as provided for in the
Rules of Court. Clearly, matters which involve
settlement and distribution of the estate of the
decedent fall within the exclusive province of the
probate court in the exercise of its limited
jurisdiction. (Natcher v. CA, 366 SCRA 385, 2001)
A liquidation proceeding resembles the proceeding
for the settlement of state of deceased persons
under Rules 73 to 91 of the Rules of Court. The two
have a common purpose: the determination of all
the assets and the payment of all the debts and
liabilities of the insolvent corporation or the estate.
The liquidator and the administrator or executor are
both charged with the assets for the benefit of the
claimants. Since this is a special proceeding, to
properly appeal the case, a record on appeal is
required. (Pacific Banking Corporation Employees
Organization v. CA, 242 SCRA 492, 1995)
A special proceeding cannot be joined with an
ordinary civil action. (Rule 2, Section 5)
351

A. SETTLEMENT OF ESTATE OF
DECEASED PERSONS, VENUE
AND PROCESS
1. WHICH COURT HAS JURISDICTION
2. VENUE IN JUDICIAL SETTLEMENT
OF ESTATE
3. EXTENT OF JURISDICTION OF
PROBATE COURT
4. POWERS AND DUTIES OF
PROBATE COURT
Special proceedings for settlement of estate may be
TESTATE (where the deceased left a will) or
INTESTATE (if there is no will).
Probate of a will is MANDATORY and takes
precedence over intestate proceedings. If in the
course of intestate proceedings pending before a
court, it is found it that the decedent had left a last
will, proceedings for the probate of the latter should
replace the intestate proceedings even if at that
stage an administrator had already been appointed,
the latter being required to render final account and
turn over the estate in his possession to the
executor subsequently appointed but this is without
prejudice to the fact that should the alleged last will
be rejected or is disapproved, the proceeding
shall continue as intestacy. (Uriarte vs CFI Of
Negros, G.R. Nos. L-21938-39,1970)
A special proceeding for the settlement of estate is
intended to settle the entire estate of the deceased.
(Vda De Reyes v. CA, 169 SCRA 524, 1989)
Two Kinds of Settlement:
1. Judicial Settlement – testate or intestate
proceeding instituted in the country were the
decedent had his residence or had estate if a
non-resident.
2. Extrajudicial Settlement – a proceeding where
the decedent left no wills and the heirs
adjudicate the estate among themselves without
seeking letters of administration.
The settlement of a decedent’s estate is a
proceeding IN REM. All interested persons whether
known to the parties or not may be bound by it.
(Philippine Savings Bank vs. Lantin, G.R. No. L-
33929, 1983)
1. WHICH COURT HAS
JURISDICTION
Jurisdiction depends on the gross value of the
estate.
If within Metro Manila, the Regional Trial Court
would assume jurisdiction if the estate exceeds
P400,000. If not, the Municipal Trial Court has
jurisdiction.
Outside Metro Manila, the Regional Trial Court
would assume jurisdiction if the estate exceeds
P300,000. If not, the Municipal Trial Court has
jurisdiction. (R.A. 7691)
a) Exclusionary Rule
General Rule: The court first taking cognizance of
the settlement of the estate of the decedent shall
exercise jurisdiction to the exclusion of all other
courts. (Vda. De Chua vs CA. G.R. No. 116835,
1998)
The probate court acquires jurisdiction from the
moment the petition for the settlement of estate is
filed with said court. It cannot be divested of such
jurisdiction by the subsequent acts of the parties
(e.g. if they entered into an extrajudicial partition
settlement or filed another petition for settlement in
a proper court of concurrent venue). (Cuenco v.
CA, G.R. No. L-24742, 1973)
The SC held that the delivery of the will is
sufficient for jurisdiction to be acquired, even if no
petition for its allowance was filed until later
because upon the will being deposited, the court
could motu proprio have taken steps to fix time and
place for proving the will and issued notices in
accordance with Rule 76, Sec 3. (Rodriguez v.
Borja, G.R. No. L-21993, 1966)
Exception:
Exclusionary Rule is NOT applied when the
decedent is an inhabitant of a foreign country. In
this case, the court of the province in which a part of
352
his estate may be found shall take cognizance of
the settlement of his estate. (Uriarte v. CFI, G.R.
Nos. L-21938-39, 1970)
The court in which the first case was filed shall have
exclusive jurisdiction to decide said issue. Should it
be decided, in the proceedings before the said
court, that venue had been improperly laid, the
case pending therein should be DISMISSED and
the corresponding proceedings MAY, thereafter, be
initiated in the proper court. (In the matter of the
Intestate of the Deceased Eusebio, G.R. No. L-
8409, 1956)
2. VENUE IN JUDICIAL SETTLEMENT
OF ESTATE
WHERE ESTATE IS SETTLED
Venue of the Proceeding
1. If the decedent is a resident of the Philippines
(whether citizen or alien) – Court of the place
where the decedent resided at the time of death.
2. If decedent is a non-resident of the Philippines
– Court of the place where the decedent had his
estate. (Rule 73, Section 1)
RESIDENCE
Personal/actual/physical habitation, his actual
residence or place of abode (Fule v. CA, G.R. Nos.
L-40502 & 42670, 1976); and NOT his permanent
legal residence of domicile (Pilipinas Shell v.
Dumlao, G.R. No. 44888, 1992).
Importance of Decedent’s Residence
The residence of the decedent who is a resident of
the Philippines at the time of his death is
determinative of the venue of the proceeding. It
is only where the decedent was a nonresident of
the Philippines at the time of his death that
venue lies in any province in which he had
estate. (Rule 73, Section 1)
If separate proceedings have been instituted for
each estate, both proceedings may be consolidated
if they were filed in the same court. (Bernardo v.
CA, G.R. Nos. 111715 & 112876, 2000)
Wrong venue is a waivable procedural defect, and
such waiver may occur by laches where a party
had been served notice of the filing of the probate
petition for a year and allowed the proceedings to
continue for such time before filing a motion to
dismiss. (Uriarte v. CFI, G.R. Nos. L-21938-39,
1970)
The laying of venue is procedural rather than
substantive, relating as it does to jurisdiction of
the court over the person rather than the
subject matter. Venue relates to trial and not to
jurisdiction. It is a procedural, not a jurisdictional,
matter. It relates to the place of trial or geographical
location in which an action or proceeding should be
brought and not to the jurisdiction of the court. It is
meant to provide convenience to the parties, rather
than restrict their access to the courts as it relates
to the place of trial. In contrast, in criminal actions, it
is fundamental that venue is jurisdictional it being
an essential element of jurisdiction. (Armand
Nocum and the Philippine Daily Inquirer v. Lucio
Tan, G.R. No. 145022, 2005)
Unless and until the defendant objects to the venue
in a motion to dismiss, the venue cannot be truly
said to have been improperly laid, as for all practical
intents and purposes, the venue, though technically
wrong, may be acceptable to the parties for whose
convenience the rules on venue had been devised.
The trial court cannot pre-empt the defendant’s
prerogative to object to the improper laying of the
venue by motu proprio dismissing the case. (Rudolf
Lietz Holdings Inc. v. The Registry of Deeds of
Paranaque City, G.R. No. 133240, 2000)
3. EXTENT OF THE JURISDICTION
OF THE PROBATE COURT
PROBATE
A proceeding to establish the validity of a will.
PROBATE JURISDICTION
Jurisdiction that is limited and it includes only
matters relating to the settlement of estates and
the probate of wills of persons, particularly the
administration of the decedent's estate, the
payment of his debts, questions as to collation or
advancements to the heirs, the liquidation of the
conjugal partnership, and the partition and
distribution of the estate.
It also extends to matters incidental and collateral to
the exercise of a probate court's recognized powers
such as selling, mortgaging or otherwise
encumbering realty belonging to the estate. Indeed,
353
the rules on this point are intended to settle the
estate in a speedy manner, so that the benefits that
may flow from such settlement may be immediately
enjoyed by the heirs and the beneficiaries. (Heirs of
Sandejas v. Lina, G.R. No. 141634, 2001)
General Rule: Questions as to TITLE to property
cannot be passed upon by the probate court in the
testate or intestate proceeding but should be
ventilated in a separate action.
Exception:
To determine whether said property should be
included in the inventory or list of properties to
be administered by the administrator, in which
case, the court may make a provisional
determination. But such determination is
provisional and NOT conclusive and is
subject to the final decision in a separate action
regarding ownership which may be instituted by
the parties. (Pio Baretto Realty Development,
Inc. v. CA, G.R. No. 132362, 2001)
When all parties to such determination are heirs;
The question is one of collation or advancement;
When all the parties agree to submit the question to
the determination of the courts, and rights of
third parties are not impaired. (Coca v.
Borromeo, G.R. No. L-27082, 1978)
It is well-settled rule that a probate court or one in
charge of proceedings whether testate or intestate
cannot adjudicate or determine title to properties
claimed to be a part of the estate and which are
equally claimed to belong to outside parties. All that
the said court could do as regards said properties is
to determine whether they should or should not be
included in the inventory or list of properties to be
administered by the administrator. If there is no
dispute, well and good; but if there is, then the
parties, the administrator, and the opposing parties
have to resort to an ordinary action for a final
determination of the conflicting claims of title
because the probate court cannot do so. (Reyes vs.
Mosqueda, 187 SCRA 661, 1990)
4. POWERS AND DUTIES OF
PROBATE COURT
In probate proceedings, the court:
1. Orders the probate of the will of the decedent
(Rule 77, Section 3);
2. Grants letters of administration of the party best
entitled thereto or to any qualified applicant
(Rule 79, Section 5);
3. Supervises and controls all acts of
administration; hears and approves claims
against the estate of the deceased (Rule 86,
Section 11);
4. Orders payment of lawful debts (Rule 88,
Section 11);
5. Authorizes sale, mortgage or any encumbrance
of real estate (Rule 89, Section 2);
6. Directs the delivery of the estate to those
entitled thereto (Rule 90, Section 1);
7. Issues warrants and processes necessary to
compel the attendance of witnesses or to carry
into effect their orders and judgments, and all
other powers granted them by law (Rule 73,
Section 3); and
8. If a person defies a probate order, it may issue a
warrant for the apprehension and imprisonment
of such person until he performs such order or
judgment, or is released. (Rule 73, Section 3)
The court acts as trustee, and as such, should
jealously guard the estate and see to it that it is
wisely and economically administered, not
dissipated. (Timbol v. Cano, G.R. No. L-15445,
1961)
The authentication of a will decides only those
that touch upon the capacity of the testator and
the compliance with those requisites or
solemnities that the law prescribes for the
validity of wills. It does not determine nor even by
implication prejudge the validity or efficiency of
the provisions; the questions relating to these points
remain entirely unaffected, and may be raised even
after the will has been authenticated. (Teotico v. del
Val, G.R. No. L-18753, 1965)
354
Probate Court’s Power to Issue Writs of GR: If the 7 years All purposes
Execution person is 1-75 EXCEPT
years old, succession
General Rule: (Art. 390, Civil
A probate court CANNOT issue writs of execution Code)
because its orders usually refer to the adjudication
of claims against the estate which the executor or EXC: Above 5 years All purposes
administrator may satisfy WITHOUT the need of 75 years old including
executor processes (Festin, Special Proceedings: A succession
Foresight to the Bar Exam, 2nd Ed. 2011) (Art. 390, Civil
Code)
Exceptions:
The court may issue writs of execution on the
following
1. To satisfy the contributive shares of the
devisees, legatees and heirs on possession of
the decedent’s assets (Rule 88, Section 6);
2. To enforce payment of the expenses of partition
(Rule 90, Section 3); and
3. To satisfy the cost when a person is cited for
examination in probate proceedings. (Rule 142,
Section 13)

Estate settlement upon dissolution of marriage

Upon dissolution of marriage by the death of either If person is 1- 10 years All purposes
the husband or the wife, the community property 75 years old including
must be administered and liquidated in the succession
in/testate proceedings of the deceased spouse. If (Art. 390, Civil
both have died, liquidation may be made in the Code)
in/testate proceedings of either. (Rule 73, Section 2)

Probate Court’s Power to Liquidate the Conjugal

Partnership
Only the probate court can competently rule on
whether the properties are conjugal and form part of
the estate. It is only the probate court that can
liquidate the conjugal partnership and distribute the
same to the heirs, after the debts of the estate have
been paid. (Romero v. Court of Appeals, G.R. No.
188921, 2012)

Presumption of death

Number of May be declared

years that the dead for:
person is
absent

355
On board a 4 years All purposes
vessel lost at from loss of including
sea vessel/plan succession If the absentee appears, or without appearing his
e (Art. 391, Civil existence is proved, he may recover the balance of
Code) his estate by motion in the same proceeding,
subject to the following conditions:
On board a All purposes
missing 4 years including All his debts must have been paid (Rule 73, Section
airplane succession 4);
(Art. 391, Civil He shall recover his property in the condition in
Code) which it may be found, and the price of any
property that may have been alienated or the
Lost while All purposes property acquired therewith;
being with 4 years including BUT he cannot claim either fruits or rents. (Article
the armed succession 392, Civil Code)
forces that (Art. 391, Civil
took part in a Code) The declaration of presumptive death of a person
war under Article 41 of the Family Code is a SUMMARY
proceeding and NOT a special proceeding.
(Republic of the Philippines v. Jomoc, G.R. No.
All purposes 163604, 2005)
Lost in 4 years including
circumstance succession END OF TOPIC
s where there (Art. 391, Civil
is danger of Code)
death.

B. SUMMARY SETTLEMENT
OF ESTATES

1. EXTRA-JUDICIAL SETTLEMENT BY
AGREEMENT BETWEEN HEIRS,
WHEN ALLOWED
2. TWO-YEAR PRESCRIPTIVE PERIOD
3. AFFIDAVIT OF SELF-
ADJUDICATION BY SOLE HEIR

356
4. SUMMARY SETTLEMENT OF 2. Value 2. Applies only where the
ESTATES OF SMALL VALUE, of the gross estate does not
WHEN ALLOWED estate is exceed P 10,000
5. REMEDIES OF AGGRIEVED immaterial
PARTIES AFTER EXTRA-JUDICIAL
SETTLEMENT OF ESTATE

SUMMARY SETTLEMENT OF ESTATES

General Rule: Estate settlement should be

3. Allowed ONLY in 3. Allowed in both testate
judicially administered through an
intestate succession and intestate succession
administrator/executor.

Exceptions:
Extra-judicial settlement by agreement between or
among heirs. (Rule 74, Section 1)

Summary settlement of estates of small value.

(Rule 74, Section 2) 4. Allowed when 4. Allowed even if there
there are NO are outstanding debts
outstanding debts at
the time of settlement

5. Can be resorted to 5. May be instituted by

only at the instance any interested party and
and by agreement of even by a creditor of the
all the heirs estate, without the
EXTRA-JUDICIAL SUMMARY settlement of consent of all the heirs
SETTLEMENT estates of small value
Sec. 1, Rule 74 Sec. 2, Rule 74

(Regalado, Remedial Law Compendium, 11th ed.

2008)
1. Does not require 1. Involves adjudication
court intervention through summary 1. EXTRAJUDICIAL SETTLEMENT BY
proceeding AGREEMENT BETWEEN HEIRS,
WHEN ALLOWED

Substantive Requirements
1. The decedent left:

357
 a. No will.
b. No debts.
2. The heirs are all of age, or the minors are
represented by their judicial or legal
representatives duly authorized for the purpose.
(Rule 74, Section 1)
If the decedent left a will and no debts and the heirs
and legatees desire to make an extrajudicial
partition of the estate, they must first present that
will to the court for probate and divide the estate in
accordance with the will. They may not do away
with the presentation of the will to the court for
probate, because such suppression of the will is
contrary to law and public policy. (Guevara v.
Guevara, 74 Phil. 479, 1943)
It is sufficient if any debts that the decedent incurred
have been paid at the time of the extra-judicial
settlement.
When all the heirs are of lawful age and there are
no debts due from the estate, they may agree in
writing to partition the property without instituting the
judicial administration or applying for the
appointment of an administrator. It does NOT
preclude the heirs from instituting
administration proceedings, even if the estate
has no debts or obligations, if they do not
desire to resort for GOOD REASONS to an
ordinary action for partition. Recourse to an
administration proceeding even if the estate has no
debts is sanctioned only if the heirs have good
reasons for not resorting to an action for partition.
(Pereira v. CA, G.R. No. L-81147, 1989; Arcillas v.
Montejo, G.R. No. L-21725, 1968)
Procedural Requirements
1. Division of estate must be in a public
instrument or by affidavit of adjudication in
the case of a sole heir;
2. Filed with proper Registry of Deeds;
3. Bond filed equivalent to the value of the
personal property; and
4. Publication of notice of the fact of extrajudicial
settlement at least once a week for 3
consecutive weeks.
If the heirs disagree as to the division of the estate,
they may do so by means of an ordinary action for
PARTITION instead of filing a public instrument with
the Registry of Deeds.
Settlement in a private instrument is valid. The
requirement of a public instrument in Section 1,
Rule 74 is not constitutive of the validity but is
merely evidentiary in nature. However, reformation
of the instrument may be compelled. (Hernandez v.
Andal, G.R. No. L-273, 1947)
An extrajudicial settlement, despite the publication
thereof in a newspaper, shall not be binding on any
person who has not participated therein or who
had no notice thereof. (Rule 74, Section 1)
The bond is required only when personalty is
involved. If it is a real estate, it shall be subject to
a lien in favor of creditors, heirs or other persons for
the full period of 2 years from such distribution and
such lien cannot be substituted by a bond.
The bond is the value of the personal property
certified by the parties under oath and conditioned
upon payment of just claims filed under Section 4,
Rule 74 of the Rules of Court.
2. TWO-YEAR PRESCRIPTIVE
PERIOD
There is a DISPUTABLE PRESUMPTION that the
decedent left no debts IF no creditor files a petition
for letters of administration within two (2) years after
the death of the decedent. (Guico v. Bautista, G.R.
No. L-14921, 1960)
As to those who did not take part of the settlement
or had no notice of the death of the decedent or the
settlement, it is unreasonable and unjust that they
be required to assert their claims within the period
of 2 years. (Sampilo v. CA, 103 Phil. 71, 1958)
3. AFFIDAVIT OF SELF-
ADJUDICATION BY SOLE HEIR
General Rule: Extra-judicial settlement shall be
done by means of a public instrument filed in the
Register of Deeds. (Rule 74, Section 1)
Exception: If there is only one heir, he may
adjudicate to himself the entire estate by means of
an affidavit filed in the Registry of Deeds. (Rule 74,
Section 1)
358
 After such requisites are met, the court MAY
If a person misrepresents himself as the only heir, proceed SUMMARILY, WITHOUT the appointment
an implied/constructive trust is created in favor of of an executor or administrator.
the other heirs whose rights were violated. Action of
reconveyance based on implied trust prescribes 10 5. REMEDIES OF AGGRIEVED
years from the issuance of TCT over the property. PARTIES AFTER EXTRA-JUDICIAL
(Marquez v. CA, 300 SCRA 653, 1998)
SETTLEMENT OF ESTATE
If a person does not have knowledge of the
extrajudicial partition, being an ex-parte proceeding, The following remedies are available to the
then he cannot be bound thereby. (PEZA v. aggrieved party after extra-judicial settlement of
Fernandez G.R. No. 138971, 2001) the estate:
1. Claim Against the Bond or Real Estate or Both
4. SUMMARY SETTLEMENT OF (Rule 74, Section 4)
ESTATES OF SMALL VALUE,
WHEN ALLOWED

Requisites
1. Petition filed by any interested person
2. Gross value of the estate, whether or not the
decedent died testate OR intestate, must not
exceed ten thousand pesos (P10,000).
3. Application must contain allegation of gross
value of estate.
4. Upon hearing, the date of which:
If there is an undue deprivation of lawful
participation in the estate
The existence of debts against the estate or
undue deprivation of lawful participation
payable in money.

a. Shall be set by court not less than one (1) 2. Petition for Relief (Rule 38)
month nor more than three (3) months from
date of last publication of notice.
B Notice of hearing published once a week for
three (3) consecutive weeks in a newspaper
of general circulation.

Grounds: (FAME)

4. Notice shall be served upon such interested

persons as the court may direct.
5. Bond in an amount fixed by the court (not value
of personal property) conditioned upon payment a. Fraud;
of just claims under Section 4, Rule 74 of the b. Accident;
Rules of Court. (Rule 74, Section 2) c. Mistake;
d. Excusable negligence.

359

Period to File
Within sixty (60) days AFTER the petitioner
learns of the judgment, final order or other
proceeding to be set aside, and not more than 6
months after such judgment or final order was
entered.
Note: Claim against the bond or real estate or
both may be availed of only WITHIN two (2)
years after the settlement and distribution of
the estate. Such bond or property will be
charged with this responsibility within 2 years
regardless of transfers of property.
3. Reopening by Intervention Within
Reglementary Period
The Following are Allowed to Intervene with Leave
of Court:
a. Has a legal interest in the matter in litigation; or
b. Has such legal interest in the success of either
of the parties, or an interest against both; or
c. Is so situated as to be adversely affected by a
distribution/disposition of property in the custody
of the court or of an officer thereof.
Period to File
Any time BEFORE rendition of judgment by the trial
court, as long as within reglementary period of two
(2) years.
Section 4, Rule 74 of the Rules of Court provides
for a two-year prescriptive period to persons who
have participated or taken part or have had notice
of the extrajudicial partition AND when the
provisions of Section 1, Rule 74 of the Rules of
Court have been complied with, i.e. That all the
persons or heirs of the decedent have taken part in
the extrajudicial settlement or are represented by
themselves or through guardians.
In relation thereto, Section 1, Rule 74 of the Rules
of Court provides in part that NO extrajudicial
settlement shall be binding upon any person who
has not participated therein or who has had no
notice thereof. This rule contemplates a notice that
must be sent out or issued BEFORE the deed of
extrajudicial settlement is agreed upon, i.e. Notice
calling all interested parties to participate in the said
partition, NOT AFTER, which is when publication
has been done in the instant case. (Pedrosa v. CA,
G.R. No. 118680, 2001)
4. Other remedies:
a. New Action to Annul Settlement within
reglementary period of two (2) years;
b. Rescission in case of preterition of
compulsory heir in partition tainted with bad
faith (Art. 1104, Civil Code); and
c. Action for Reconveyance on the ground of
fraud which should be filed within ten (10)
years from the discovery of fraud. (Art. 1144,
Civil Code)
N.B.: There is an implied or constructive of
trust in favor of the heirs who were excluded
from the settlement.
d. Action to Annul Fraudulent Extrajudicial
Settlement does not prescribe. Besides, an
action or defense for the declaration of the
360
 inexistence of a contract does not prescribe
under Art. 1410 of the Civil Code. (Neri vs.
Heirs of Uy, G.R. 194366, October 10, 2012)

Period for Claim of Minor or Incapacitated
Person
Within one (1) year after the minority or incapacity is
removed. (Rule 74, Section 5)
END OF TOPIC
1. NATURE OF PROBATE
PROCEEDING
Probate proceedings are IN REM. The notice by
publication as a pre-requisite to the allowance of a
will is a constructive notice to the whole world, and
when probate is granted, the judgment is binding
upon everybody, even against the State.

The probate of a will having jurisdiction thereof is

conclusive as to its due execution and validity.

This proceeding cannot be dispensed with and

substituted by another proceeding, judicial or
extrajudicial, without offending public policy. It is
mandatory as no will shall pass either real or
personal property unless proved and allowed in
accordance with the Rules. It is
C. PRODUCTION AND IMPRESCRIPTIBLE, because it is required by
PROBATE OF THE WILL public policy and the state could not have intended
to defeat the same by applying thereto the statute of
limitation of actions. (Guevara v. Guevara, G.R. No.
L-5405, 1956)

Probate of a will is MANDATORY as required by

law and public policy. No will shall pass either real
or personal estate UNLESS it is PROVED and
ALLOWED in the proper court.

Ordinarily, the probate of the will does not look into

its intrinsic validity; but on the extrinsic validity
which includes the capacity of the testator to make
a will and the compliance with the requisites or
solemnities which the law prescribes for the validity
1. NATURE OF PROBATE of wills.
PROCEEDING
However, when practical considerations demand,
2. WHO MAY PETITION FOR the intrinsic validity of the will may be passed upon
PROBATE; PERSONS ENTITLED TO like when on its face there is really preterition or
NOTICE invalid disinheritance making the will void.
(Maninang v. CA, G.R. No. L-57848, 1982)

The general rule is that the probate court’s authority

is limited only to the extrinsic validity of the will, the
due execution thereof, the testator’s testamentary
capacity and compliance with the solemnities
prescribed by law. The intrinsic validity normally
comes after the court declared that the will has

361
been duly authenticated. However, the rule is not
without exceptions. The probate court is not
powerless to pass upon certain provisions of the
will. (Acain v. IAC, G.R. No. 72706, 1987)
PRODUCTION OF THE WILL
Custodian of the Will
The person who HAS CUSTODY of the will shall
deliver the will to the court having jurisdiction or to
the executor named in the will within twenty (20)
days after knowledge of death of testator. (Rule 75,
Section 3)
Executor of the Will
A person named as executor in the will SHALL
present such will to the court having jurisdiction
AND signify to the court in writing his
acceptance or refusal of the trust:
1. Within twenty (20) days after he knows of the
death of the testator; or
2. Within twenty (20) days after he knows that he is
named executor IF he obtained such knowledge
after the death of the testator. (Rule 75,
Section 3)
A custodian or an executor who neglects such duty
without satisfactory excuse shall be fined not
exceeding two thousand pesos (P2,000). (Rule 75,
Section 4)
A person having custody of the will and neglects to
deliver the same without reasonable cause when
ordered to do so MAY be committed to prison until
he delivers the will. (Rule 75, Section 5)
2. WHO MAY PETITION FOR
PROBATE; PERSONS ENTITLED
TO NOTICE
Who May Petition For Probate of Will
1. Executor;
2. Devisee/legatee named in the will;
3. Testator himself during his lifetime;
4. Any creditor: as a preparatory step for filing of
his claim therein.
5. Any person interested in the estate; (Rule 76,
Section 1)
Note: ALL of the abovementioned MAY petition for
the probate of the will whether the same be in his
possession or not, or is lost or is destroyed.
An INTERESTED PARTY is one who would be
benefited by the estate such as an heir or one who
has a claim against the estate like a creditor.
The interest must be BOTH material and direct as
to the will or estate or the property to be affected by
it either as executor or claimant of the estate.
(Sumilang v. Romagosa, G.R. No. L-9483, 1960)
One who is only indirectly interested in a will may
NOT interfere in its probate. (Herrera, Remedial
Law III-A Special Proceedings and Special Rules
Implementing the Family Courts Act of 1997, 2005)
In testate succession, there can be no valid partition
among the heirs until after the will has been
probated.  The law enjoins the probate of a will and
the public requires it, because unless a will is
probated and notice thereof given to the whole
world, the right of a person to dispose of his
property by will may be rendered nugatory. (Union
Bank v. Sentibañez, G.R. No. 149926, 2005)
Jurisdictional requirements for proving wills
A HEARING shall be set by the court for proving the
will after the will has been delivered to OR a petition
for allowance of a will has been filed in the court.
This is for the purpose of allowing those who are
concerned to protest. (Rule 76, Section 3)
NOTICE of such time and place of proving the will
SHALL be PUBLISHED for three (3) weeks
successively in a newspaper of general circulation.
But this requirement is not necessary IF the probate
has been filed by the testator himself. (Rule 76,
Section 4)
Jurisdictional facts of probate proceedings
362
 Fact of death of the decedent; and be satisfied by mere publication. (De Aranz, et al. v.
Residence at the time of death where the Galing, et al., G.R. No. 77047, 1988)
probate court is sitting; or
Location of part of estate within the jurisdiction END OF TOPIC
of the probate court. (Palaganas v.
Palaganas, G.R. No. 169144, 2011)

Persons entitled to notice

1. Designated or other known heirs, legatees and D. ALLOWANCE OR
devisees DISALLOWANCE OF WILL
2. Executor and co-executor if not the petitioner
(Rule 76, Section 4)

If it is the testator himself who asks for the

allowance of his own will, notice shall only be
required to given to his compulsory heirs. (Rule 76,
Section 4)

How Notice is Given 1. CONTENTS OF PETITION FOR

1. By Mail – at least twenty (20) days before
hearing ALLOWANCE OF WILL
2. Personal Service – at least ten (10) days 2. GROUNDS FOR DISALLOWING A
before hearing. (Rule 76, Section 4) WILL
3. REPROBATE
Notice is required to be personally given to
known heirs, legatees and devisees of the testator.
However in this case, a perusal of the will would
indicate that respondent was instituted as the sole
heir of the decedent. Petitioners are merely
nephews and nieces of the decedent, and they are
neither compulsory nor testate heirs who are a. Requisites before a will proved abroad
entitled to be notified of the probate proceedings. will be allowed in the Philippines
Respondent has no legal obligation to mention
petitioners in the petition for probate nor to
personally notify them about the same. (Alaban v.
CA, G.R. No. 156021, 2005)

The personal service of notice upon the heirs is a

matter of procedural convenience and not a
4. EFFECTS OF PROBATE
jurisdictional requisite. (In Re Estate of Emil H .
Johnson, G.R. No. 12767, 1918; In Re Estate of
Deceased Jose B. Suntay, G.R. Nos. 3087 and
3088, 1954; Abut, et al. v. Abut, et al. G.R. No. L-
26743, 1972)

However, where the names of the heirs and their

residences are known, notices of the hearing of the
petition in accordance with Section 4, Rule 76 must
be forwarded to them and such requirement cannot

363

1. CONTENTS IN THE PETITION FOR
ALLOWANCE OF WILL
Contents in the Petition for Probate
1. Jurisdictional facts: Death of the testator and his
residence at the time of death or the place
where the estate was left by the decedent who is
a non-resident
2. Names/ages/residences of the heirs, legatees,
and devisees
3. Probable value and character of the estate
property
4. Name of the person for whom the letters are
prayed
5. Name of the person having custody of the will if
it has not been delivered to the court (Rule 76,
Section 2)
But NO defect shall render void the allowance of
the will, or the issuance of letters testamentary or of
administration with the will annexed. (Rule 76,
Section 2)
The applicable law, therefore, confers jurisdiction on
the RTC or the MTC over probate proceedings
depending on the gross value of the estate, which
value must be alleged in the complaint or petition to
be filed. (Frianela v. Banayad Jr., G.R. No. 169700,
2009)
The conflict between the dates appearing on the will
does not invalidate the document, because the law
does not even require that a [notarial] will be
executed and acknowledged on the same
occasion. More importantly, the will must be
subscribed by the testator, as well as by three or
more credible witnesses who must also attest to it in
the presence of the testator and of one another.
The testator and the witnesses must acknowledge
the will before a notary public. In any event, the
variance in the dates of the will as to its supposed
execution and attestation was satisfactorily and
persuasively explained by the notary public and the
instrumental witnesses. (Ortega v. Valmonte, G.R.
No. 157451, 2005)
2. GROUNDS FOR DISALLOWANCE
OF WILL
Disallowance of Will
1. If the formalities required by law (execution and
attestation) have not been complied with
2. If the testator was insane, or otherwise mentally
incapable of making a will at the time of its
execution
3. If it was executed through force or under duress,
or the influence of fear or threats
4. If it was procured by undue and improper
pressure and influence on the part of the
beneficiary or of some other person
5. If the signature of the testator was procured by
fraud or trick
6. If the testator acted by mistake or did not intend
that the instrument he signed should be his will
at the time of affixing his signature thereto
(Section 9, Rule 76 of the Rules of Court and
Art. 839 of the Civil Code)
The list is EXCLUSIVE. No other grounds can serve
to disallow a will.
Pursuant to Article 811 of the Civil Code, the
probate of holographic wills is the allowance of the
will by the court after its due execution has been
proved. However, if the holographic will has been
lost or destroyed and no other copy is available, the
will cannot be probated because the best and only
evidence is the handwriting of the testator in said
will. It is necessary that there be a comparison
between sample handwritten statements of the
testator and the handwritten will. But, a photostatic
copy of the holographic will may be allowed
because comparison can be made with the
standard writings of the testator. (Bonilla v. Aranza,
G.R. No. L-58509, 1982)
3. REPROBATE
A will allowed/probated in a foreign country MAY be
allowed, filed and recorded in the Philippines. (Rule
77, Section 1)
Administration of an estate extends only to the
assets of the decedent found within the state or
country where it was granted. The administrator
appointed in one state has no power over property
in another state or country. (Rule 77, Section 4)
Petition to be filed in the Regional Trial Court.
The Regional Trial Court where such petition is filed
364
shall fix a time and place for the hearing and
cause notice thereof to be given as in case of an
original will presented for allowance. (Rule 77,
Section 1 and 2); Leon & Ghezzi v. Manufacturer
Life Insurance Co, G.R. No. L-3677, 1951)
a. REQUISITES BEFORE A WILL PROVED
ABROAD WILL BE ALLOWED IN THE
PHILIPPINES
Requisites Before a Will Proved Abroad Will Be
Allowed in the Philippines
1. The testator had his domicile in the
foreign country
2. The will has been admitted to probate in such
country – due execution of the will in accordance
with foreign laws
3. The fact that the foreign tribunal is a probate
court with jurisdiction over the proceedings
4. The law on probate procedure of the said foreign
country and proof of compliance therewith
5. The legal requirements in said foreign country
for the valid execution of the will. (Vda. de Perez
v. Tolete, G.R. No. 76714, 1994)
In the absence of proof of the foreign law, it is
presumed that it is the SAME as in the Philippines.
(ATCI Overseas Corporation v. Echin, G.R. No.
178551, 2010)
The court having jurisdiction over the reprobate of a
will SHALL CAUSE NOTICE thereof to be given as
in the case of an original will presented for
allowance. Thus, the PUBLICATION and NOTICE
REQUIREMENTS as stated in Sections 3 and 4 of
Rule 76 of the Rules of Court ARE REQUIRED in
the reprobate. (Rule 77, Section 2)
The will of an alien who is abroad produces effect in
the Philippines if made with the formalities
prescribed by the law of the place in which he
resides, or according to the formalities observed in
his country, or in conformity with those which this
Code prescribes. Thus, proof that both wills
conform with the formalities prescribed by New York
laws or by Philippine laws is imperative. (Vda. de
Perez v. Tolete, G.R. No. 76714, 1994)
4. EFFECTS OF PROBATE
REPROBATE
Effects of Reprobate
1. The will shall have the same effect as if
originally proved and allowed in the Philippines.
2. Letters testamentary or administration with a will
annexed shall extend to all estates in the
Philippines.
3. Such estate, after the payment of just debts and
expenses of administration, shall be disposed of
according to the will, so far as such will may
operate upon it, and the residue, if any, shall be
disposed of as provided by law in cases of
estates in the Philippines belonging to persons
who are inhabitants of another country.
The general rule universally recognized is that
administration extends only to the assets of the
decedent found within the state or country where
it was granted, so that an administrator appointed
in one state or country has no power over the
property in another state or country. (Leon & Ghezzi
v. Manufacturer Life Insurance Co., G.R. No. L-
3677, 1951)
When a person dies intestate owning property in the
country of his domicile as well as in foreign country,
administration shall be had in both countries. That
which is granted in the jurisdiction of the decedent’s
domicile is termed the PRINCIPAL
ADMINISTRATION, while any other administration
is termed ANCILLARY ADMINISTRATION. The
ancillary administration is proper whenever a
person dies leaving in a country other than that of
his domicile, property to be administered in the
nature of assets of the decedent, liable for his
individual debts or to be distributed among his heirs.
(Johannes vs. Harvey, G.R. No. 18600, 1992;
Tayag v. Benguet Consolidated, Inc., G.R. No. L-
23145, 1968)
These 2 proceedings are separate and independent
of each other. (CIR v. Fisher, et al., G.R. No. L-
11668, 1968)
Under Article 16 of the Civil Code, it is the national
law of the decedent that is applicable. Article 1039
further provides that “capacity to succeed is
governed by the law of the nation of the decedent.”
As a corollary rule, Section 4, Rule 77 of the Rules
provides that such estate after payment of just
debts and expenses of administration shall be
& disposed of according to such will, so far as such
will may operate upon it. Whatever public policy or
good customs may be involved in our system of
legitimes, Congress has not intended to extend the
365
same to the succession of foreign nationals. In any
case, the Court has also ruled that if land is invalidly
transferred to an alien who subsequently becomes
a citizen or transfers it to a citizen, the flaw in the
original transaction is considered cured and the title
of the transferee is rendered valid. (Ancheta v.
Guersey-Dalaygon, G.R. No. 139868, 2006)
EXECUTOR
The person named in the will to administer the
END OF TOPIC
decedent’s estate and carry out the provisions
thereof.

LETTERS TESTAMENTARY
The authority issued to an executor named in the
will WHEN a will has been proved and allowed and
the person named therein is competent, accepts
the trust and gives a bond.

ADMINISTRATOR (regular or special)

E. LETTERS TESTAMENTARY The person appointed by the court to administer
the estate. Where the decedent died intestate, or
AND OF ADMINISTRATION where the will was void and not allowed to probate,
or where no executor was named in the will, or the
executor named therein is incompetent to serve as
such.

LETTERS OF ADMINISTRATION
The authority issued by the court to a competent
person WHEN
1. The decedent died intestate; or
1. WHEN AND TO WHOM LETTERS OF 2. Although there is a will, the will does not appoint
ADMINISTRATION GRANTED any executor; or
2. ORDER OF PREFERENCE 3. Executor named in the will is incompetent,
3. OPPOSITION TO ISSUANCE OF refuses the trust or fails to give a bond.
LETTERS TESTAMENTARY; Persons Who Are INCOMPETENT to Serve As
SIMULTANEOUS FILING OF Executors/Administrators
PETITION FOR ADMINISTRATION 1. Minor
4. POWERS AND DUTIES OF 2. Non-resident
3. One who, in the opinion of the court, is unfit to
EXECUTORS AND exercise the duties of the trust by reason of:
ADMINISTRATORS; RESTRICTIONS
ON THE POWERS
5. APPOINTMENT OF SPECIAL
ADMINISTRATOR
6. GROUNDS FOR REMOVAL OF
ADMINISTRATOR a) Drunkenness
b) Improvidence
1. WHEN AND TO WHOM LETTERS c) Want of understanding/integrity
d) Conviction of an offense involving moral
OF ADMINISTRATION GRANTED turpitude

366
4. The executor of an executor cannot administer
the estate of the first testator (Rule 78, Section
2)
A corporation/association authorized to conduct the
business of a trust company in the Philippines may
be appointed as an executor, administrator,
guardian of an estate, or trustee, in like manner as
an individual; but it shall not be appointed guardian
of the person of a ward. (Article 1060, Civil Code of
the Philippines)
The marriage of a single woman also shall NOT
affect her authority to serve under a previous
appointment. (Rule 78, Section 3)
If one has liabilities to the estate, he cannot perform
the duties of an administrator. This is considered
an adverse interest to the estate which renders
him unsuitable to act as administrator. The
determination of a person's suitability for the office
of judicial administrator rests, to a great extent, in
the sound judgment of the court exercising the
power of appointment and said judgment is not to
be interfered with on appeal unless the said court is
clearly in error. (Lim v. Diaz-Millarez, G.R. No. L-
17633, 1966)
Several Co-Executors Named in the Will But Not
All Can Act
If all of the named co-executors cannot act because
of incompetency, refusal to accept the trust, or
failure to give bond on the part of one or more of
them, letters testamentary may issue to such of
them as are competent, or who accept the trust, or
give bond, and they may perform the duties and
discharge the trust required by the will. (Rule 78,
Section 5)
Revised Circular No. 28-91 and Administrative
Circular No. 04-94 of the Court require a
certification against forum shopping for all initiatory
pleadings filed in court. However, in this case, the
petition for the issuance of letters testamentary is
not an initiatory pleading but a mere continuation
of the original petition for the probate of Dr.
Nittscher’s will. Hence, respondent’s failure to
include a certification against forum shopping in his
petition for the issuance of letters testamentary is
not a ground for outright dismissal of the said
petition. (Nittscher v. Nittscher, G.R. No. 160530,
2007)
Only an interested person may oppose the petition
for issuance of letters of administration. An
interested person is one who would be benefited by
the estate such as an heir, or one who has a claim
against the estate, such as a creditor. (Vda. de
Chua v. CA, G.R. No. 70909, 1994)
2. ORDER OF PREFERENCE
Order of Preference in Granting Letters of
Administration
1. Surviving spouse or next of kin or both in the
discretion of the court, or to such person as the
abovementioned requests to have appointed, IF
competent and willing to serve; or
Next of Kin
Those persons who are entitled under the statute of
distribution to the decedent’s property.
2. If the surviving spouse, next of kin or their
nominee be incompetent or unwilling to serve
OR if the surviving spouse or next of kin
NEGLECTS FOR 30 DAYS after the death of
the decedent to apply for administration by them
or their nominee, any one or more of the
principal creditors, IF competent and willing to
serve.
3. Stranger – such other person that the court may
select.
It is generally said that the nearest of kin, whose
interest in the estate is more preponderant, is
preferred in the choice of administrator. Among
members of a class the strongest ground for
preference is the amount or preponderance of
interest. As between next of kin, the nearest of kin
is to be preferred. (In re Testate Estate of the Late
Gregorio Ventura, G.R. No. L-26306, 1988)
Even assuming that Felicisimo was not capacitated
to marry respondent in 1974, nevertheless, we find
that the latter has the legal personality to file the
subject petition for letters of administration, as she
367
may be considered the co-owner of Felicisimo as
regards the properties that were acquired through
their joint efforts during their cohabitation. (San Luis
v. San Luis, G.R. No. 133743, 2007)
Interest in Estate as Principal Consideration
The underlying assumption is that those who will
reap the benefits of a wise / speedy / economical
administration of the estate or those who will most
suffer the consequences of waste / improvidence /
mismanagement have the higher interest and most
influential motive to administer the estate correctly.
Order of Preference AND Thirty (30) Day Period:
NOT Mandatory
Just as the order of preference is NOT absolute and
may be disregarded for valid cause despite the
mandatory tenor in the opening sentence of Rule 78
for its observance, so may the thirty (30) day
period be likewise be waived under the
permissive tone which merely provides that said
letters as an alternative “may” be granted to one or
more of the principal creditors. (Gabriel v. CA, G.R.
No. 101512, 1992)
Administration may be granted to such other
person as the court may appoint in case the
persons who have preferential right to be appointed
are NOT competent or are UNWILLING to serve. It
is proper to command the court below to appoint a
regular administrator (hence, MANDAMUS lies) but
it is NOT proper to tell whom to appoint. (Reynoso
v. Santiago, 85 Phil 268, G.R. No. L-3039, 1949)
notified and claim the letters to themselves. (Rule
79, Section 6)
3. OPPOSITION TO THE ISSUANCE
OF LETTERS TESTAMENTARY;
SIMULTANEOUS FILING OF
PETITION FOR ADMINISTRATION
Any interested person in the will can oppose.
Such opposition should state the grounds why the
letters testamentary should not issue in writing and
he may attach a petition for letters of
administration with the will annexed. (Rule 79,
Section 1)
The admission to probate of a will may be opposed
or contested by, and only by, persons having
some interest in the estate which will be affected
and concluded by the probate of the proposed will.
(Paras v. Narciso, G.R. No. 10959, 1916)
Interest required in order that a person may be a
party thereto must be material and direct, not
merely indirect or contingent. (Saguinsin v.
Lindayag, 6 SCRA 874, 1962)
Grounds for Opposing
1. In Letters Testamentary

A probate court cannot arbitrarily and without

sufficient reason disregard the preferential a) Incompetence
rights of the surviving spouse to the administration b) Refusal of trust
of the estate of the deceased spouse. But, if the c) Failure to give bond
person enjoying such preferential rights is
unsuitable, the court may appoint another person.
The determination of a person's suitability for the
office of administrator rests, to a great extent, in the
sound judgment of the court exercising the power of
appointment and such judgment will not be
interfered with on appeal unless it appears 2. In Letters of Administration
affirmatively that the court below was in error.
(Sioca v. Garcia, G.R. No. L-20080, 1923)

Letters of administration may be granted to any

person or any other applicant even if there are other
competent persons with a better right to the
administration IF such persons fail to appear when a) Incompetence

368
 b) Preferential right under Section 6, Rule 78 of
the Rules of Court
Contents of Petition for Letters of
Administration
1. The jurisdictional facts (death of testator and his
residence at the time of death);
2. The names, ages, and residences of the heirs,
and the names and residences of the creditors,
of the decedent;
3. The probable value and character of the
property of the estate;
4. The name of the person for whom letters of
administration are prayed.
But NO defect in the petition shall render void the
issuance of letters of administration.
If a petition for letters of administration is filed, such
court shall fix a time and place for hearing the
petition. and shall cause notice thereof to be
given to the known heirs and creditors of the
decedent, and other persons believed to have an
interest in the estate.(Section 3, Rule 79 of the
Rules of Court).There must also be publication of
the notice for three (3) weeks successively. These
requirements are JURISDICTIONAL.
Where no notice as required by Section 3, Rule 79
of the Rules of Court has been given to persons
believed to have an interest in the estate of the
deceased person; the proceeding or the settlement
of the estate is void and should be annulled. The
requirement as to notice is essential to the validity
of the proceeding in order that no person may be
deprived of his right to property without due process
of law. (Eusebio v. Valmores, 96 Phil 163, G.R. No.
L-7019, 1955)
Opposition to Petition for Administration
Any interested person may file a written opposition
to contest the petition for administration on the
grounds of incompetency and preferential right to
administration.
The principal consideration in the appointment of an
administrator of the estate of a deceased person is
the interest in said estate of the one to be appointed
as administrator. To justify removal of an
administrator, there must be evidence of an act or
omission on the part of the administrator not
conformable to or in disregard of the rules or the
orders of the court. A temporary residence
outside of the state, maintained for the benefit of
the health of the executors' family, is not such a
removal from the state as to necessitate his
removal as executor. (Gonzales v. Aguinaldo,
G.R. No. 74769, 1990)
A dismissal of a petition for letters of administration
will lie against a person who has no interest in the
estate of the decedent. However, as an exception,
an objection to a petition for letters of
administration may be barred by waiver or
estoppel. A party who has affirmed and invoked the
jurisdiction of the court in a particular matter to
secure an affirmative relief cannot be allowed to
afterwards deny the same to escape penalty.
(Pilipinas Shell Petroleum Corp. v. Dumlao, G.R.
No. 44888, 1992)
Where an heir has validly assigned all his rights to
the estate before the institution of settlement
proceedings thereover, he no longer has the
requisite interest to participate therein. (Duran, et al.
v. Duran, G.R. No. L-23372, 1967)
Where the assignment is made during the
pendency of settlement proceedings, it requires
approval of the court for its validity. However, it has
been held that in this situation, even if that
assignment has been approved by the court, such
approval is not deemed final until the proceeding
over the estate is closed, as such approval can still
be vacated, hence the assignor remains as an
interested party in the proceeding. (Gutierrez v.
Villegas, et al., G.R. No. L-11848, 1962)
Order of Appointment of Regular Administrators
The order of appointment of regular administrators
is FINAL and therefore, APPEALABLE.
Effect of Appeal Appointing New Administrator
Where the order of the court appointing a new
administrator in substitution of the original
administrator is pending appeal, and in the
absence of any order for the immediate execution
of the order of substitution, the old administrator
HAS THE RIGHT TO CONTINUE as such until the
appeal is finally disposed of. (Herrera, Remedial
Law III-A Special Proceedings and Special Rules
Implementing the Family Courts Act of 1997, 2005)
4. POWERS AND DUTIES OF
EXECUTORS AND
369
 ADMINISTRATORS;
RESTRICTIONS ON THE POWERS
Powers and Duties of Executors and
Administrators
1. To have access to, and examine and take
copies of books and papers relating to the
partnership in case of a deceased partner;
2. To examine and make invoices of the property
belonging to the partnership in case of a
deceased partner;
3. To make improvements on the properties under
administration with the necessary court
approval, except for necessary repairs;
4. To maintain in tenantable repair the houses and
other structures and fences and to deliver the
same in such repair to the heirs or devisees
when directed to do so by the court;
5. To possess and manage the estate when
necessary for (a) the payment of debts and (b)
the payment of expenses of administration;
6. Make a true inventory and appraisal of all
real/personal property of decedent within three
(3) months after his appointment (except clothes
of family, marriage bed, and other articles for
subsistence of family).
7. Render an account of his administration within
one (1) year from the time of receiving letters
testamentary or of administration and he shall
render such further accounts as the courts may
require until the estate is wholly settled;
8. Give allowance to legitimate surviving spouse or
children of the decedent if the court decrees
such (grandchildren are not entitled).
An administrator or executor has all the powers
necessary for the administration of the estate and
which powers he can exercise without leave of
court.
However, If the lease contract exceeds one year,
the same is no longer a mere act of administration
(Article 1878, Civil Code), and leave of court is
required.
Properties under the name and possession of an
administrator are considered as properties in
custodial legis. Thus, they cannot be attached even
by creditors of the decedent. (Lizaragga v. Abada,
49 Phil. 124, G.R. No. 13910, 1919)
Bonds of Executors and Administrators
Before an executor or administrator enters upon the
execution of his trust, he SHALL give a bond, in
such a sum as the COURT directs.
Conditions of the Bond
1. To make and return to the court, within three (3)
months, a true and complete inventory of all
goods, chattels, rights, credits, and estate of the
deceased which shall come to his possession or
knowledge or to the possession of any other
person for him;
2. To administer according to these rules, and, if
an executor, according to the will of the testator,
all goods, chattels, rights, credits, and estate
which shall at any time come to his possession
or to the possession of any other person for him,
and from the proceeds to pay and discharge all
debts, legacies, and charges on the same, or
such dividends thereon as shall be decreed by
the court;
3. To render a true and just account of his
administration to the court within one (1) year,
and at any other time when required by the
court;
4. To perform all orders of the court by him to be
performed.
The bond posted by administrators and executors is
intended as an indemnity to the creditors, the heirs
and the estate. The court shall fix the amount
thereof and hold it accountable for breach of duty
on the part of the administrator or executor. The
enforcement of such liability may be brought by
motion in the administration proceedings or in a
separate civil action. (Mendoza v. Pacheco, et al.,
G.R. No. 43351, 1937; Warner, Barnes & Co., Ltd.
v. Luzon Surety Co., Inc., 95 Phil. 924, 1954)
Administrator’s Bond
It is a statutory bond. Conditions prescribed by the
statute form part of bond agreement.
Terms and effectivity of bond do not depend on
payment of premium and do not expire until the
administration is closed. As long as the probate
court retains jurisdiction of the estate, the bond
contemplates a continuing liability. (Herrera,
Remedial Law III-A Special Proceedings and
Special Rules Implementing the Family Courts Act
of 1997, 2005)
Executor’s Bond
370
An executor MAY serve without bond if the testator
in his will stipulates such condition. However, the
court MAY require that the executor file a bond in
case of a change in his circumstances or for other
sufficient cause with the conditions stipulated in
Section 1, Rule 81 of the Rules of Court.
Restrictions on the Power of an
Administrator/Executor
1. Cannot acquire by purchase, even at public or
judicial auction, either in person or mediation of
another, the property under administration
2. Cannot borrow money without authority of the
court
3. Cannot speculate with funds under
administration
4. Cannot lease the property under administration
for more than one (1) year
5. Cannot continue the business of the deceased
unless authorized by the court
6. Cannot profit by the increase/decrease in the
value of the property under administration
Where estate of a deceased is already the subject
of a testate or intestate proceeding, the
administrator cannot enter into any transaction
involving it without approval of the court. (Herrera,
Remedial Law III-A Special Proceedings and
Special Rules Implementing the Family Courts Act
of 1997, 2005)
Accountability and Compensation of Executors
and Administrators
1. Executor or administrator shall be chargeable
with all estate and income;
2. An executor or administrator cannot profit by
increase or suffer loss by decrease or
destruction without his fault, of any part of the
estate;
3. No executor or administrator shall be
accountable for debts due the deceased which
remain uncollected without his fault;
4. An executor or administrator shall be
accountable for income from realty used by him;
5. An executor or administrator shall be
accountable if he neglects or delays to raise
money by collecting debts or pay over the
money that he has in his hands and the value of
the estate decreases because of such act.
An executor or administrator shall be allowed the
NECESSARY expenses for the care, management,
and settlement of the estate, and for his
services.
NECESSARY EXPENSES
Necessary expenses of administration are such
expenses as are needed for the preservation and
productivity of the estate and for its management
for purposes of liquidation, payment of debts
and distribution of the residue among persons
entitled thereto.
An administrator or executor may be allowed fees
for the necessary expenses he has incurred as
such, but he may not recover attorney's fees from
the estate. His compensation is fixed by the rule but
such compensation is in the nature of executor's
or administrator's commissions, and never as
attorney's fees. A greater sum [other than that
established by the rule] may be allowed in any
special case, where the estate is large, and the
settlement has been attended with great difficulty,
and has required a high degree of capacity on the
part of the executor or administrator. (Lacson v.
Reyes, G.R. No. 86250, 1990)
When an executor or administrator is an attorney,
attorney’s fees are not chargeable to the estate of
the decedent. However, when a lawyer performs
acts in favor of the heirs as counsel and not as
administrator of the estate, the attorney’s fees are
then chargeable to the heirs for whom such acted
as legal counsel. (Quasha v. LCN Construction
Corp., G.R. No. 174873, 2008)
5. APPOINTMENT OF SPECIAL
ADMINISTRATOR
SPECIAL ADMINISTRATOR
Representative of a decedent appointed by a
probate court to care for and preserve his estate
until an executor or general administrator is
appointed.
When Appointed
1. Delay in granting of letters testamentary or of
administration, including appeal in the probate of
the will. (Rule 80, Section 1)
2. Executor is a claimant of the estate he
represents. (Rule 86, Section 8) In this case, a
special administrator shall be appointed by the
court with respect to such claim.
371
Pending appeal of an order substituting an old
administrator with a new administrator, a special
administrator may NOT be appointed. (Relucio v.
San Jose, 91 Phil. 365, 1952)
The requirement of a hearing and the notification to
all the known heirs and other interested parties as
to the date thereof is ESSENTIAL to the validity of
the proceeding for the appointment of a special
administrator. Notice through publication of the
petition is a jurisdictional requirement even in the
appointment of a special administrator. (De
Guzman v. Angeles, G.R. No. 78590, 1988)
The order of preference in the appointment of
regular administrators does not apply to the
appointment of a special administrator but such
order of preference may be followed by the judge in
the exercise of sound discretion. (Matias v.
Gonzales, G.R. No. L-10907, 1957)
The order appointing a special administrator is an
interlocutory and is not appealable. (Garcia v.
Flores, G.R. No. L-10392, 1957)
Similarly, the grounds for the removal of the regular
administrator do not apply strictly to the special
administrator as he may be removed by the court
on other grounds in its discretion. (Junquera v.
Borromeo, G.R. No. L-18498, 1967)
The position of special administrator, by the very
nature of the powers granted thereby, is one of trust
and confidence. It is a fiduciary position and,
therefore, requires a comprehensive determination
of the suitability of the applicant to such position.
Hence, under Philippine jurisprudence, it has been
settled that the same fundamental and legal
principles governing the choice of a regular
administrator should be taken in choosing the
special administrator. It is essential that the
suitability of the applicant be ascertained in a
hearing with due notice to all oppositors who may
object precisely to the applicant's suitability to the
trust. (De Guzman v. Angeles, G.R. No. 78590,
1988)
Even if special administrators had already been
appointed, once the probate court finds the
appointees no longer entitled to its confidence, it is
justified in withdrawing the appointment and giving
no valid effect thereto. (Ocampo v. Ocampo, G.R.
No. 187879, 2010)
The selection or removal of special administrators is
not governed by the rules regarding the selection or
removal of regular administrators. Courts may
appoint or remove special administrators based on
grounds other than those enumerated in the Rules,
at their discretion. The special administrator is an
officer of the court who is subject to its supervision
and control and who is expected to work for the
best interest of the entire estate, especially with
respect to its smooth administration and earliest
settlement. (Co v. Rosario, G.R. No. 160671, 2008)
Duties/Powers of the Special Administrator
1. Possession and charge of the goods, chattels,
rights, credits and estate of the deceased;
2. Preserve the same;
3. Commence and maintain suit for the estate;
4. Sell only perishable property ordered by the
court;
5. Pay debts only as may be ordered by the court;
6. Make a true inventory and appraisal of all
real/personal property of decedent within three
(3) months after his appointment (except clothes
of family, marriage bed, and other articles for
subsistence of family);
7. Render a true and just account of his
administration within one (1) year of
appointment;
8. Perform all orders by the court;
9. Give allowance to legitimate surviving spouse or
children of the decedent if the court decrees
such (grandchildren are not entitled);
10. Deliver property he received to person
appointed as executor or administrator or to
such other person as may be authorized by the
court.
Special Administrator’s Bond
A special administrator, BEFORE entering upon the
duties of his trust SHALL give a bond, in such sum
as the court directs. It is CONDITIONED upon the
following:
1. He will make and return a true inventory of the
goods, chattels, rights, credits and estate of the
deceased which come to his possession and
knowledge; and
2. He will truly account for such as are received by
him when required by the court, and will deliver
the same to the person appointed executor or
administrator, or to such other person as may be
authorized to receive them. (Section 4, Rule 81
of the Rules of Court)
When Powers of Special Administrator Cease
372
When letters testamentary or of administration are
granted and questions causing the delay are
resolved, on the estate of the deceased, the powers
of the special administrator shall cease.
He shall then deliver to the executor or
administrator the goods, chattels, money, and
estate of the deceased in his hands. The executor
or administrator may prosecute to final judgment
suits commenced by such special administrator.
discontinued and a new proceeding should be
constituted.
The discovery of a will does not ipso facto nullify the
administration unless the will has been proved and
allowed. (De Parreño v. Aranzanso, G.R. No. L-
26940, 1982)
END OF TOPIC

6. GROUNDS FOR REMOVAL OF

EXECUTORS AND
ADMINISTRATORS

Grounds for Removal of Executor/Administrator

(NOT exclusive)
1. Neglect to render accounts (within one (1) year
when the court directs) F. CLAIMS AGAINST THE ESTATE
2. Neglect to settle estate according to the Rules of (Rule 86)
Court
3. Neglect to perform an order/judgment of the
court or a duty expressly provided by the Rules
of Court
4. Absconding
5. Insanity or incapacity or unsuitability to
discharge the trust

The lawful acts of an executor or administrator 1. TIME WITHIN WHICH CLAIMS

BEFORE the revocation of his letters testamentary SHALL BE FILED; EXCEPTIONS
or administration or before resignation or removal
2. STATUTE OF NON-CLAIMS
shall have the like validity as if there had been no
such revocation, resignation or removal. 3. CLAIM OF EXECUTOR OR
ADMINISTRATOR AGAINST THE
Powers of a New Executor/Administrator (After ESTATE
the First Resigns, is Removed, or Letters 4. PAYMENT OF DEBTS
Revoked)
1. Collect and settle the estate not administered
2. Prosecute/defend actions commenced by or
against the former executor/administrator
3. Recover execution on judgments in the name
of former executor/administrator
Role of administrator if a will is discovered
If the letters of administration have been granted
because of the belief that the decedent had died
intestate, and subsequently, a will is discovered and
allowed by the court, the administration shall be
revoked and the administrator shall surrender the
letters of administration to the court and render his CLAIMS AGAINST THE ESTATE
account of administration. AFTER granting letters testamentary or of
administration, the COURT shall issue a NOTICE
It is within the court’s discretion to decide whether requiring all persons having money claims against
or not the intestate proceeding should be

373
the decedent to file them in the office of the clerk of public places in the municipality where the decedent
court. (Rule 86, Section 1) last resided. (Rule 86 of Rules of Court, Sec.3)

General Rule:
The following claims must be filed UNDER 1. TIME WITHIN WHICH CLAIMS
NOTICE; otherwise, barred: (JSFM) SHALL BE FILED; EXCEPTIONS
1. Money claims – those arising from implied or
express contracts, due or not due, or contingent,
contracted BEFORE death of the decedent
2. Funeral expenses
3. Expenses for the last Sickness of the decedent
4. Judgment for money against the decedent

General rule: Within the time fixed in the notice

which shall not be more than twelve (12) months
nor less than six (6) months after the date of the
FIRST publication. Otherwise, the claims are
barred forever.

Other claims, such as those for damages based on

delict or quasi-delict, recovery of real or personal
property, or to enforce a lien thereon, may be filed
and proceed independently against the executor or
administrator of the estate of the deceased.and not
as a money claim against the estate. (Rule 87,
Section 1)

Exception: BELATED CLAIMS – Claims not filed

Publication of Notice
The executor or administrator shall, immediately
after the notice to creditors is issued, PUBLISH the
same for THREE (3) weeks successively in a
newspaper of general circulation.
within the original period fixed by the court. On
application of a creditor who has failed to file his
claim within the time previously limited, at any time
before an order of distribution is entered, the
court may, for cause shown and on such terms
as are equitable, allow such claim to be filed not
exceeding one (1) month from the order allowing
belated claims (the order may either be in open
court or not). (Rule 86, Section 2)

There must also be POSTING for the same period

in four (4) public places in the province, and two (2)

374

2. STATUTE OF NON-CLAIMS
The specific period fixed by the probate court
(following the 6-12 month range) for the filing of
claims against the estate for examination and
allowance; otherwise, the claims are barred
forever.
The rule requires certain creditors of a deceased
person to present their claims for examination and
allowance within a specified period, the purpose
thereof being to settle the estate with dispatch, so
that the residue may be delivered to the persons
entitled thereto without their being afterwards called
upon to respond in actions for claims, which, under
the ordinary statute of limitations, have not yet
prescribed. (Santos v. Manarang, G.R. No. L-8235
1914)
Exception 1:
The court, for good cause shown, may grant a one-
month period for a creditor to file a claim which he
failed to bring during the original period granted for
the filing of claims.
Such motion for leave to file a claim beyond the
original period may be filed at any time during the
administration proceedings provided no order of
distribution has yet been entered. (Aquino, et al. v.
Aquino, 103 Phil. 1107; cf. Danan, et al. v.
Buencamino, etc., et al., G.R. No. 57205, 1981)
Exception 2:
A Creditor May Still Recover when:
Claims not filed within the time given in the notice
MAY be set forth as COUNTERCLAIMS in any
action that the executor or administrator may bring
against the claimants. (Rule 86, Section 5)
A judgment for a money claim against the
deceased cannot. be enforced by writ of
execution. A judgment against the deceased for a
money claim must be filed as a claim before the
probate court. If death of the defendant occurred
prior to levy, the judgment is NOT enforceable by
writ of execution. The judgment creditor must file
a claim in the probate court.
Even if the testator acknowledged the debt in his
will and instructed the executor to pay such debt,
the Statute of Non-Claims MUST still be complied
with. (Santos v. Manarang, G.R. No. L-8235,
1914)
The specific provisions of Sec. 5, Rule 86 of the
Rules of Court should prevail over the general
provisions of Rules of Court even though the
375
decedent’s estate was impleaded in a complaint
for recovery of sum of money. The general
provisions of Rules of Court merely apply
suppletorily. (Metropolitan Bank & Trust Co. v.
Absolute Management Corporation, G.R. no.
170498, 2013)
among them: (1) to waive the mortgage and claim
the entire debt from the estate of the mortgagor as
an ordinary claim; (2) to foreclose the mortgage
judicially and prove any deficiency as an ordinary
claim; and (3) to rely on the mortgage exclusively,
foreclosing the same at any time before it is barred
by prescription without right to file a claim for any
deficiency. (Philippine National Bank v. Court of
Appeals, G.R. no. 121597, 2001); Heirs of
Spouses Maglasang v. Manila Banking
Corporation, G.R. no. 171206, 2013)

3. CLAIM OF EXECUTOR OR
Solidary obligation of decedent and mortgage ADMINISTRATOR AGAINST THE
debt due from the estate
Where the obligation of the decedent is solidary ESTATE
with another debtor, the claim shall be filed against
the decedent as if he were the only debtor. (Rule If executor/administrator has a claim, he shall give
86, Section 6) notice to the court in writing and the court thereafter
shall appoint a special administrator. (Rule 86,
On the other hand, is it necessary to implead the Section 8)
estate of the decedent which is solidarily liable with
another person, in a collection case filed against the
latter?
NO. The estate of the decedent is not considered
an indispensable party. The whole amount of
obligation may proceed against any one of the
solidary debtor pursuant to Art. 1216 of the Civil
Code. (Boston Equity Resources, Inc. v. Court of How to File a Claim
Appeals, G.R. No. 173946, 2013)

A Creditor Holding a Claim AGAINST the

Deceased Secured by Mortgage or Other
Collateral Security May
1. Abandon the security and prosecute his claim
against the estate and share in the general
distribution of the assets of thereof; OR
2. Foreclose his mortgage or realize upon his
security by action in court, making the executor
or administrator a party defendant and if there is
judgment for deficiency, he may file a contingent
claim against the estate within the statute of
non-claims; OR
3. Rely solely on his mortgage and foreclose
(judicial or extrajudicial) the same at anytime
within the period of the statute of limitations but
he cannot be admitted as creditor and shall not
receive in the distribution of the other assets of
the estate. (Rule 86, Section 7)
1. Delivering the claim with the necessary
vouchers to the clerk of court and by serving a
copy to the executor/administrator
2. Serve a copy on the executor or administrator.
(Rule 86, Section 9)
An affidavit must support such claim, stating the
amount justly due, that no payments have been
made thereon which are not credited and that there
are no offsets to the same.
If the claim is contingent, an affidavit stating the
particulars must accompany the claim.

Case law now holds that this rule grants to the

mortgagee three distinct, independent and mutually
exclusive remedies that can be alternatively
pursued by the mortgage creditor for the
satisfaction of his credit in case the mortgagor dies,

376
 4. PAYMENT OF DEBTS (Rule 88)

Answer of Executor/Administrator
Within fifteen (15) days after service of a copy of the
claim on the executor or administrator, he shall file
his answer admitting or denying the claim. (Rule 86,
Section 10)

PAYMENT OF DEBTS IF ESTATE IS SUFFICIENT

Upon the filing of an answer to a claim, or expiration

of the time for such filing, the claim shall be set for
trial with notice to both parties. (Rule 86, Section
12)
General rule: The payment of the debts of the
estate must be taken (by order of preference):
1. From the portion or property designated in the
will; (Rule 88, Section 2)
2. From the personal property, and
3. From the real property.

If there is still a deficiency, it shall be met by

contributions by devisees, legatees, or heirs who
have been in possession of portions of the estate
BEFORE debts and expenses have been settled
and paid. (Rule 88, Section 6)

The judgment of the court approving or

disapproving a claim shall be appealable. (Rule 86,
Section 13)

Exception: Instances When Realty Can Be

Charged First:

377
1. When the personal property is not sufficient. sold/mortgaged/encumbered, and such other
(Rule 88, Section 3) facts as show that the
2. Where the sale of such personalty would be sale/mortgage/encumbrance is necessary or
detrimental to the participants (everyone) of the beneficial;
estate. (Rule 88, Section 3) 2. The court shall fix a time and place for hearing
3. When sale of personal property may injure the such petition. There MUST be notice served on
business or interests of those interested in the the time and place of the hearing to persons
estate. (Rule 89, Section 2) interested.
4. When the testator has not made sufficient 3. The court MAY require the
provision for payment of such executor/administrator shall give an additional
debts/expenses/legacies. (Rule 89, Section 2) bond conditioned that such
5. When the decedent was, in his lifetime, under executor/administrator will account for the
contract, binding in law, to deed real property to proceeds of the sale/mortgage/encumbrance;
beneficiary. (Rule 89, Section 8) 4. The court may, by order stating compliance with
6. When the decedent during his lifetime held real the abovementioned requirements, authorize the
property in trust for another person. (Rule 89, executor/administrator to
Section 9) sell/mortgage/encumber, in proper cases, such
part of the estate as is deemed necessary, and
in case of sale the court may authorize it to be
public or private, as would be most beneficial to
all parties concerned. The
executor/administrator shall be furnished with a
certified copy of such order;
5. If the estate is to be sold at auction, the mode of
giving notice of the time and place of the sale
shall be governed by the provisions concerning
notice of execution sale;
6. There shall be recorded in the registry of
deeds of the province in which the real
estate thus sold/mortgaged/encumbered is
Order of the Sale of Personal Property situated, a certified copy of the order of the
1. To pay the debts and expenses of court, together with the deed of the
administration. executor/administrator for such real estate,
2. To pay legacies. which shall be as valid as if the deed had been
3. To cover expenses for the preservation of the executed by the deceased in his lifetime. (Rule
estate. (Rule 89, Section 1) 89, Section 7)

Such recording shall be valid as if the deed had

been executed by the deceased in his lifetime.
(Philippine National Bank v. Court of Appeals,
G.R. no. 121597, 2001)

Sale of Property Acquired on Execution or

Regulations for Granting Authority to Foreclosure
Sell/Mortgage/Encumber Estates: The court MAY authorize an executor/ administrator
to sell/ mortgage/ encumber real estate acquired by
him on execution or foreclosure sale, under the
same circumstances and under the same
regulations as prescribed in this rule for the sale/
mortgage/ encumbrance of other real estate. (Rule
89, Section 6)
1. The executor/administrator shall file a written
petition setting forth the debts due from the
deceased, the expenses of administration, the
legacies, the value of the personal estate, the
situation of the estate to be

378
Sale Beneficial to Interested Persons
Sale of personal or real estate may be allowed
when the court finds that it will be BENEFICIAL to
the heirs, devisees and legatees although NOT
necessary to pay debts, legacies or expenses of
administration. This must be upon application of the
executor or administrator and on written notice to
interested persons. (Rule 89, Section 4)
Opposition to Sale/Mortgage or Encumbrance of
Estate
Any interested person may give a BOND in an
amount fixed by the court, conditioned to pay the
debts, expenses of administration and legacies to
prevent the court from granting the authority to
sell/mortgage or encumber such property. (Rule 89,
Section 3)
Payment of Contingent Claims
CONTINGENT CLAIM
Claim that is subject to the happening of a future
uncertain event.
If the court is satisfied that a contingent claim duly
filed is valid, it may order the executor/administrator
to retain in his hands sufficient estate to pay such
contingent claim when the same becomes absolute,
or, if the estate is insolvent, sufficient to pay a
portion equal to the dividend of the other creditors.
(Rule 88, Section 4)
Requisites for the Estate to be Retained to Meet
Contingent Claims:
1. Contingent claim is duly filed within the two (2)
year period allowed for the creditors to present
claims;
2. Court is satisfied that the claim is valid;
3. The claim has become absolute. (Rule 88,
Section 5)
379
 expenses, and the court, after hearing, may settle
the amount of their several liabilities, and order how
much and in what manner each person shall
contribute. (Rule 88, Section 6)

Contingent Claims Which Mature AFTER the

Two (2) Year Period for Filing of Claims
The assets retained in the hands of the
executor/administrator, not exhausted in the
payment of claims, shall be distributed by the order
of the court to the persons entitled to the same.

PAYMENT OF DEBTS IF ESTATE IS INSOLVENT

OR ASSETS INSUFFICIENT

But the assets so distributed MAY still be applied

to the payment of the claim when established, and
the creditor may maintain an action against the
DISTRIBUTEES to recover the debt, and such
distributees and their estates shall be liable for the
debt in proportion to the estate they have
respectively received from the property of the If insufficient estate to pay all debts: The
deceased. (Rule 88, Section 5) executor/administrator shall pay the debts
according to the concurrence and preference of
credits provided by Articles 1059 and 2239-2251 of
the Civil Code. (Rule 88, Section 7)

After following the order of preference of credits, if

all the creditors belonging to one class cannot be
paid in full, then all of them will suffer a reduction in
proportion to that creditor’s claim. No creditor of
any one class shall receive any payment until those
of the preceding class are paid. (Rule 88, Section 8)

Contributive Share of Devisees/Legatees/Heirs

in Possession of Portions of Estate for Debts
If devisees, legatees or heirs have taken
possession of portions of the estate before the
debts have been settled and paid have become
liable to contribute for the payment of debts and

380
Estate of an Insolvent Non-Resident Disposed
of
His estate in the Philippines shall be so disposed of
that his creditors in and outside the Philippines may
receive an equal share, in proportion to their
respective credits. (Rule 88, Section 9)

Order of Payment of Debts

Before the expiration of the time limited for the
payment of debts, the court shall order the payment
thereof. (Rule 88, Section 11)

Claim Proven Outside the Philippines Against

an Insolvent Resident’s Estate Paid
Claims proven outside the Philippines where the
executor had knowledge and opportunity to contest
its allowance therein may be added to the list of
claims in the Philippines against the estate of an Upon APPEAL, the court may suspend the order for
insolvent resident and the estate will be distributed the payment of debts OR may order the distribution
equally among those creditors. The claims of among the creditors whose claims are definitely
foreign creditors against insolvent non-residents allowed, leaving in the hands of the
and against insolvent residents would not be able to executor/administrator sufficient assets to pay the
recover from the estate if there is no reciprocity with claim disputed and appealed. (Rule 88, Section 12)
that creditor’s country granting the same benefit to
Filipinos. (Rule 88, Section 10)

Time for Payment of Debts and Legacies; Period

for Successor of Deceased
However, the benefit of this and the preceding Administrator/Executor
sections shall not be extended to the creditors in Shall not exceed one (1) year in the first instance;
another country if the property of such deceased but court may extend on application of executor
person there found is not equally apportioned to the /administrator and after hearing and notice thereof.
creditors residing in the Philippines and the other
creditors, according to their respective claims. (Rule
88, Section 10)

381
 1. ACTIONS THAT MAY BE BROUGHT
AGAINST EXECUTORS AND
ADMINISTRATORS
2. REQUISITES BEFORE CREDITOR
MAY BRING AN ACTION FOR
RECOVERY OF PROPERTY
Extension must not exceed six (6) months for single
extension. The whole period allowed to the original
FRAUDULENTLY CONVEYED BY
executor/administrator shall not exceed two (2) THE DECEASED
years.

1. ACTIONS THAT MAY BE

The successor of dead executor/administrator may BROUGHT AGAINST EXECUTORS
be allowed an extension not to exceed six (6)
months. (Rule 88, Section 15) AND ADMINISTRATORS

END OF TOPIC

G. ACTIONS BY AND
Actions That May be Commenced Directly
AGAINST EXECUTORS against the Executor and Administrator –
AND ADMINISTRATORS Claims THAT Survive
(Rule 87) 1. Recovery of real/personal property (or any
interest therein) from the estate;
2. Enforcement of a lien thereon;
3. Action to recover damages arising from tort.
(Rule 87, Section 1)

Actions That May Be Commenced Against the

ESTATE of the Deceased - Claims That DO NOT
Survive
1. Money claims, debts incurred by the deceased
during his lifetime arising from contract:

382
 a) Express or implied actions for causes which survive. (Rule 87, Section
b) Due or not due 1)
c) Absolute or contingent
Upon the commencement of the testate or intestate
proceedings, the heirs have NO standing in court
actions for recovery or protection of the property
rights of the deceased, EXCEPT when the executor
or administrator is UNWILLING or FAILS or
REFUSES to act OR when the administrator is
2. Claims for funeral expenses or for the last illness made a party defendant, in which event the heirs
of the decedent. may act in his place. (Herrera, Remedial Law III-A
3. Judgment for money against decedent. (Rule 86, Special Proceedings and Special Rules
Section 5) Implementing the Family Courts Act of 1997, 2005)

What happens to actions for money claims that

are already pending in court against the
decedent at the time of his death

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, it shall not be dismissed but shall
instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the
plaintiff therein shall be enforced in the manner
especially provided in these Rules for prosecuting Foreclosure of Mortgage Due to Estate
claims against the estate of a deceased person. Executor/administrator CAN foreclose a mortgage
(Rule 3, Sec. 20) belonging to the decedent. (Rule 87, Section 5)

When Heirs May Sue Discharge of Debt by Executor or Administrator

Heirs may not sue the executor/administrator for
recovery of property left by the decedent UNTIL
there is an order of the court assigning such lands
to such heir or until the time for paying debts has
expired. (Rule 87, Section 3)
An executor or administrator may compound with
the debtor of the deceased for a debt due and may
give a discharge of such debt on receiving a just
dividend of the estate of the debtor UPON approval
of the court. (Rule 87, Section 4)

ACTIONS THAT MAY BE BROUGHT BY THE

ADMINISTRATOR OR EXECUTOR

For the recovery or protection of the property or

rights of the deceased, an executor or administrator
MAY bring or defend, in the right of the deceased,

383
Concealment/Embezzlement/Conveyance of Any
of the Property OF the Deceased
Upon complaint of any interested person in the
estate, the court may cite such suspected person to
appear before it and examine him on oath on the
matter of such complaint.
If the suspected person refuses to appear or to
answer questions asked of him during the
examination, the court may punish him for contempt
and may commit him to prison until he submits to
the order of the court. (Rule 87, Section 6)
If even BEFORE the granting of the letters
testamentary/letters of administration, a person
embezzles or alienates any property of the
deceased, such person shall be liable in favor of the
administrator or executor for double the value of the
property sold, embezzled, or alienated, to be
recovered for the benefit of the estate. (Rule 87,
Section 8)
Complaint of Executor/Administrator against
Person Entrusted with Estate
The court may require such person entrusted with
the estate to appear before it and render a full
account of all property which came into his
possession.
Refusal to appear or give an accounting may be
punished with contempt. (Rule 87, Section 7)
When executor or administrator may bring
action for property fraudulently conveyed by the
deceased
When there is a deficiency of assets in the hands of
an executor or administrator for the payment of
debts and expenses of administration and the
deceased fraudulently conveyed property to avoid
any right debt or duty, the executor or administrator
may commence and prosecute to final judgment
such action for recovery of property.
384

The action would be for the benefit of the creditors.
HOWEVER, he shall not be bound to commence
the action UNLESS:
1. Upon application of the creditors;
2. The creditors making the application pay such
part of the costs and expenses;
2. Give security therefore to the executor or the
administrator. (Rule 87, Section 9)
that by law, the conveyance would be void as
against other creditors.
3. The subject of the attempted conveyance would
be liable to Attachment in his lifetime.
4. The executor/administrator has shown No desire
to file the action or failed to institute the same
within a reasonable time.
5. Leave is granted by the court to the creditor to
file the action.
6. A Bond is filed by the creditor.
7. The action by the creditor is in the Name of the
executor/administrator.
The last 3 requisites are unnecessary where the
grantee is the executor/administrator himself, in
which event, the action should be in the name of all
the creditors.

END OF TOPIC

2. REQUISITES BEFORE CREDITOR

MAY BRING AN ACTION FOR H. DISTRIBUTION AND PARTITION
RECOVERY OF PROPERTY (RULE 90)
FRAUDULENTLY CONVEYED BY
THE DECEASED

1. LIQUIDATION
2. PROJECT OF PARTITION
3. REMEDY OF AN HEIR ENTITLED TO
RESIDUE BUT NOT GIVEN HIS
SHARE
4. INSTANCES WHEN PROBATE
Requisites Before Creditor May Bring Action: COURT MAY ISSUE WRIT OF
(DeFrAN LeBoN) EXECUTION
1. There is a Deficiency of assets in the hands of
an executor/administrator for the payment of 1. LIQUIDATION
debts and expenses of administration.
2. In his lifetime, the deceased had made or
attempted to make a Fraudulent conveyance of
his property or had so conveyed such property

385
It is that the determination of all assets of the estate
and payment of all debts and expenses.
2. PROJECT OF PARTITION
General Rule: Order of distribution shall be made
after payment of all debts, funeral expenses,
expenses for administration, allowance of widow,
and inheritance taxes.
The order of distribution of residue shall be made by
the court upon application of the executor or
administrator or any interested persons and after
hearing and upon notice.
Exception: If the distributes or any of them gives a
bond conditioned for the payment of said obligation,
the order of distribution may be made even before
the payment of the debts and expenses. (Rule 90,
Section 1)
Title to the property is vested from the FINALITY of
the order of distribution.
3. REMEDY OF AN HEIR ENTITLED
TO RESIDUE BUT NOT GIVEN HIS
SHARE
If an heir has not received his share, his proper
remedy is to file a motion with the probate court for
delivery to him of his share or if the estate
proceedings had been closed, he should file a
motion for reopening of the proceeding, within the
prescriptive period, and not to file an independent
action for annulment of the project of partition.
(Guilas v. Judge of CFI, G.R. No. L-26695, 1972)
386
As long as the order or distribution of the estate has
not been complied with, the probate proceedings
cannot be deemed closed and terminated, because
a judicial partition is not final and conclusive and
does not prevent the heirs from bringing an action
to obtain his share, provided the prescriptive period
therefore has not elapsed. The better practice,
however, for the heir who has not received his
share, is to demand his share through proper
motion in the same probate or administrative
proceedings, or for the reopening of the probate or
administrative proceedings if it had already been
closed, and not through an independent action,
which would be tried by another court or judge
which may thus reverse a decision or order of the
probate or intestate court already final and executed
and reshuffle properties long ago distributed and
disposed of. (Timbol v. Cano, G.R. No. L-15445,
1961)
Exception –
1. To satisfy the contributive shares of the
devisees/legatees/heirs when the latter had
entered prior possession over the estate.
(Rule 88, Section 6)
2. To enforce payment of the expenses of
partition. (Rule 90, Section 3)
3. To satisfy the costs when a person is cited
for examination in probate proceedings.
(Rule 142, Section 13)
(Vda. de Valera v. Ofilada, G.R. No. L-27526,
1974)

END OF TOPIC

4. INSTANCES WHEN PROBATE

COURT MAY ISSUE WRIT OF
EXECUTION
I. TRUSTEES
General Rule: Probate court cannot issue writ of
execution. (Pastor v. CA, G.R. No. L-56340, 1983)

Rationale: Its orders usually refer to the

adjudication of claims against the estate which the
executor /administrator may satisfy without the need
of executory process.

1. DISTINGUISHED FROM
EXECUTOR/ADMINISTRATOR
2. CONDITIONS OF THE BOND
3. REQUISITES FOR THE REMOVAL
AND RESIGNATION OF A TRUSTEE
4. GROUNDS FOR THE REMOVAL
AND RESIGNATION OF A TRUSTEE

387
5. EXTENT OF AUTHORITY OF the Philippines, he shall file a petition for
TRUSTEE appointment as trustee in the Regional Trial Court
where the land is located. Otherwise, the court shall
declare the trust vacant and shall appoint a new
trustee. (Rule 98, Section 4)

TRUSTEES
A trustee shall be appointed by the REGIONAL
TRIAL COURT where the will was allowed or where 1. TRUSTEE DISTINGUISHED FROM
the property affected by the trust is situated. (Rule EXECUTOR OR ADMINISTRATOR
98, Section 1)

A TRUSTEE holds an office of trust whose duties

A Trustee May Be Appointed may cover a wider range, and are usually governed
1. Under a will – where the testator has omitted in by the intention of the trustor or the parties (if
his will to appoint a trustee in the Philippines. established by contract).
(Rule 98, Section 2)

NOTE: Notice to and consent of the beneficiary are

NOT essential for the creation of the trust for
appointment under a will.

2. Under a written instrument – when a trustee

under a written instrument declines, resigns,
dies or is removed before the objects of the trust
are accomplished and no adequate provision is
made as to supplying vacancy. (Rule 98,
Section 3)

Where Trustee Appointed Abroad An EXECUTOR/ADMINISTRATOR holds an office

When land in the Philippines is held in trust for a of trust; duties are fixed and/or limited by law.
resident by a trustee who derives authority outside

388

2. CONDITIONS OF THE BOND
Before entering his duties, a trustee must file a
bond with the Clerk of Court in an amount fixed by
the court, payable to the Philippine government and
sufficient and available to protect any party in
interest.
Failure to file bond is considered as an act of
declining or refusal of the trust or of the resignation
of the trustee, as the case may be. (Rule 98,
Section 5)
Court MAY EXEMPT from Giving Bond:
1. A trustee under a will, if the testator so
directed/requested; or
2. Any trustee, if all persons beneficially interested
are of full age and request the exemption.
The court may cancel the bond exemption anytime;
the trustee shall then file the bond. (Rule 98,
Section 5)
Conditions Included in the Bond
1. That the trustee will make and return to the
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the time of
the making of such inventory shall have come to
his possession or knowledge;
2. That he will manage and dispose of all such
estate, and faithfully discharge his trust in
relation thereto, according to law and the will of
the testator or the provisions of the instrument or
order under which he is appointed;
3. That he will render upon oath at least once a
year until his trust is fulfilled, unless he is
excused therefrom in any year by the court, a
true account of the property in his hands and
of the management and disposition thereof, and
will render such other accounts as the court may
order;
4. That at the expiration of his trust he will settle
his accounts in court and pay over and
deliver all the estate remaining in his hands,
or due from him on such settlement, to the
person or persons entitled thereto. (Rule 98,
Section 6)
3. REQUISITES FOR REMOVAL AND
RESIGNATION OF A TRUSTEE
Requisites for Removal
389
 J. ESCHEAT
(Rule 91)
1. Petition of interested parties
2. Due notice to the trustee
3. Hearing (Rule 98, Section 8)

4. GROUNDS FOR REMOVAL AND

RESIGNATION OF A TRUSTEE

5. EXTENT OF AUTHORITY OF
TRUSTEE

Appointment Under Will

The trustee, in whom the estate shall vest, shall
have the same rights, powers and duties as if he
had been appointed by the testator.

Who May Petition

Parties beneficially interested. (Rule 98, Section 8)

Grounds for Removal of a Trustee

No person succeeding to the trust as executor or

administrator of a former trustee shall be required to
accept such trust. (Rule 98, Section 2)

1. If essential to the interests of the party

petitioning the removal;
2. If trustee becomes insane or otherwise
incapable OR unsuitable of discharging the trust.
(Rule 98, Section 8)

Resignation of a Trustee
A trustee may resign his trust if the court deems it
proper to allow such resignation - whether the
trustee was appointed by the court or by a will.
(Rule 98 of the Rules of Court, Sec. 8)
Appointment Under Written Instrument
Such new trustee shall have and exercise the same
powers, rights and duties as if he had been
originally appointed, and the trust estate shall vest
in him in like manner as it had vested or would have

390
vested in the trustee in whose place he is
substituted. (Rule 98, Section 3)
Sale and Encumbrance of Trust Estate
When the sale or encumbrance of any real or
personal estate held in trust is NECESSARY or
EXPEDIENT, the court may, on petition and after
NOTICE and HEARING, order such sale or
encumbrance.
The petition, notice, hearing, order of sale or
encumbrance and record of h SHALL CONFORM
as nearly as maybe to the provisions concerning the
sale or encumbrance by GUARDIANS of the
property of their wards. (Rule 98, Section 9)
Acquisition of Trust Estate
General Rule – A trustee cannot acquire the trust
estate by prescription because for the purpose of
prescription, the possession of the property by the
trustee is not an adverse possession, but only a
possession in behalf of the owner of the same.
(Canezo v. Rojas, G.R. No. 148788, 2007)
Exception – If there is an open, clear and
unequivocal repudiation of the trust and
the beneficiary knows of the repudiation.
(Canezo v. Rojas, G.R. No. 148788, 2007)
END OF TOPIC
1. WHEN TO FILE
2. REQUISITES FOR FILING OF
PETITION
3. REMEDY OF RESPONDENT
AGAINST PETITION; PERIOD FOR
FILING A CLAIM
391
ESCHEAT
A proceeding whereby the real and personal
property of a deceased person in the Philippines
become the property of the state upon his death,
without leaving any will or legal heirs (21 CIS,
Section 1, p. 848).
1. WHEN TO FILE; THREE
INSTANCES OF ESCHEAT
When to File
When a person dies intestate, leaving no heir or
person by law entitled to the decedent’s real or
personal property. (Rule 91, Section 1)
Who Files
The Solicitor General or his representative in behalf
of the Republic of the Philippines. (Rule 91, Section
1)
Where Filed
Regional Trial Court of the province where the
deceased last resided OR in which he had estate.
(Rule 91, Section 1)
Three Instances of Escheats:
1. When a person dies intestate leaving no heir but
leaving property in the Philippines (Rule 91, Section
1)
2. REVERSION PROCEEDINGS – Sale in
violation of the Constitutional provision; (Rule
91, Section 5)
3. Unclaimed Balances Act (dormant accounts for
10 years shall be escheated) (Act no. 3936 as
amended by P.D. no. 679, sec. 1)
2. REQUISITES FOR FILING OF
PETITION
Requisites
That a person died intestate
That he left no heirs or persons by law entitled to
the same; and
The deceased left properties. (Rule 9, Section 1)
If the petition is sufficient in form and substance, the
court by order shall set a date and place for the
hearing of the petition. Such order must be
published before the hearing at least once a week
for six (6) successive weeks in a newspaper of
general circulation. (Rule 91, Section 2)
To Whom Escheated Property Will be Assigned
1. Personal property – municipality or city where
the decedent last resided in the Philippines
2. Real property – municipality or cities,
respectively in which the same is situated.
If the deceased never resided in the Philippines, the
whole estate may be assigned to the respective
municipalities or cities where the same is located.
(Rule 91, Section 3)
Use of Escheated Property
Such estate shall be for the benefit of public
schools, public charitable institutions and centers in
said municipalities or cities.
The court, at the instance of an interested party or
upon its own motion, may order the establishment
of a PERMANENT trust so that only the income of
the property will be used. (Rule 91, Section 3)
3. REMEDY OF RESPONDENT
AGAINST PETITION; PERIOD FOR
FILING A CLAIM
When the petition does not state facts which entitle
the petition to the remedy prayed for, the
respondent may file a MOTION TO DISMISS the
petition. (Municipal Council of San Pedro, Laguna v.
Colegio de San Jose, G.R. No. L-45460, 1938)
Who May File a Claim on Escheated Estate
1. Devisee;
2. Legatee;
3. Heir;
4. Widow/Widower; or
5. Any person entitled to such estate. (Rule 91,
Section 4)
Period for Filing
Within five (5) years from date of judgment,
otherwise it will be barred forever. (Rule 91, Section
4)
END OF TOPIC
392

K. GUARDIANSHIP
(Rules 92-97)
1. GENERAL POWERS AND DUTIES
OF GUARDIANS
2. CONDITIONS OF THE BOND OF
THE GUARDIAN
3. RULE ON GUARDIANSHIP OVER
MINOR
GUARDIANSHIP
The power of protective authority given by law and
imposed on an individual who is free and in the
enjoyment of his rights, over one whose weakness
on account of his age or other infirmity renders him
unable to protect himself.
GUARDIAN
The person in whom the law has entrusted the
custody and control of the person or estate or both
of an infant, insane or other person incapable of
managing his own affairs.
WARD
The person under guardianship whom the law
regards as incapable of managing his own affairs.
Kinds of Guardians
1. According to Scope or Extent
a) Guardian of the person
b) Guardian of the property
c) General guardian – those appointed by the
court to have care and custody of the person
AND all of his property.
2. According to Constitution
a) Legal – deemed as guardians WITHOUT
need for appointment
b) Guardian ad litem – appointed by the court
in an action in court
c) Judicial – appointed by the court in
pursuance to law (i.e. guardian for insane
persons or prodigals etc.)
Where to Institute Guardianship Proceedings
Guardianship of the person or estate of an
incompetent may be instituted in the Regional Trial
Court of the place where the incompetent person
resides.
If the incompetent person resides outside the
Philippines, then the petition for guardianship may
be filed in the Regional Trial Court of the place
where the property of such incompetent may be
found. (Rule 92, Section 1)
An INCOMPETENT Includes
1. Persons suffering the penalty of civil interdiction;
2. Hospitalized lepers;
3. Prodigals;
4. Deaf and dumb who are unable to read and
write;
5. Those who are of unsound mind even though
they may have lucid intervals;
6. Persons not being of unsound mind but by
reason of age, disease, weak mind or other
causes CANNOT without outside aid, take care
of themselves and manage their property. (Rule
92, Section 2)
Prodigality
In order to render a person legally unfit to
administer his own affairs, his acts of prodigality
must show a morbid mind and a disposition to
spend or waste the estate so as to expose his
family to want or to deprive his forced heirs of their
393
inheritances. (Martinez v. Martinez, G.R. no. 445,
1902)
Who May Petition For Appointment of Guardian
for Resident Incompetent
1. Any relative;
2. Friend;
3. Other person in behalf of resident incompetent
who has no parent or lawful guardian;
4. The Director of Health in favor of an insane
person who should be hospitalized or of an
isolated leper. (Rule 93 of the Rules of Court,
Sec. 1)
Contents of a Petition for Guardianship of
Resident Incompetent
1. The jurisdiction facts – incompetency of the
person for whom guardianship is sought and his
residence;
2. The incompetency rendering the appointment
necessary or convenient;
3. The names, ages, and residence of the relatives
of the incompetent, and of the person having
him in their care;
4. The probable value and character of his estate;
5. The name of the person for whom letters of
guardianship.
The petition shall be verified; but NO defect in the
petition or verification shall render void the issuance
of letters of guardianship. (Rule 93, Section 2)
Contents of a Petition for Guardianship of Non-
Resident Incompetent Who Has Estate in the
Philippines
1. Any relative;
2. Friend; or
3. Anyone interested in the estate – in expectancy
or otherwise (Rule 93, Section 6)
ANCILLARY GUARDIANSHIP
Refers to the guardianship in a state other than that
in which guardianship is originally granted.
Guardianship Proceedings
After the petition is filed, the court shall fix the time
and place for HEARING the same and shall cause
NOTICE to be given to persons mentioned in the
petition AND to the incompetent himself. (Rule 93,
Section 3)
Notice is essential in order to confer jurisdiction on
the court where a petition for guardianship is filed.
(Herrera, Remedial Law III-A Special Proceedings
and Special Rules Implementing the Family Courts
Act of 1997, 2005)
At the hearing, the incompetent must be present, if
able to attend and there must be a showing that
notice was given. The court shall hear the evidence
of the parties and if the person in question is indeed
an incompetent, it shall appoint a suitable guardian
of his person or estate, or both, with the powers and
duties hereinafter specified. (Rule 93, Section 5)
Opposition to Petition
ANY INTERESTED PERSON may file a written
opposition on the following grounds:
1. Competency of the alleged incompetent; and
2. Unsuitability of the person for whom letters are
prayed. (Rule 93, Section 4)
Such Opposition to the Petition May Ask For the
Following Reliefs:
1. Dismissal of petition; or
2. That the letters of guardianship issue to himself,
or to any suitable person named in the
opposition. (Rule 93, Section 4)
394
 4. To render an inventory of the ward’s estate
within three (3) months after his appointment
and annually thereafter, and upon application of
interested persons
a) If any property of the ward not included in an
inventory already rendered is
discovered/acquired by the ward, like
1. GENERAL POWERS AND DUTIES proceedings shall be had for inventory and
appraisement within three (3) months; (Rule 96,
OF GUARDIANS Section 7)

General Powers and Duties 0f Guardians:

1. To pay the ward's just debts out of:

a) The personal estate and the real estate’s

income;
b) The real estate, IF sufficient and only upon
obtaining court order. (Rule 96, Section 2)
5. To render an accounting of the property for
one (1) year from his appointment and every
year thereafter, and upon application of
interested persons.
a) A non-parent guardian is allowed the amount of
his reasonable expenses incurred in the
execution of his trust, plus just compensation for
2. To settle all the ward’s accounts; demand, his services, not exceeding 15% of the ward’s
sue for or receive for all debts due the ward, or net income. (Rule 96, Section 8);
for the same and give discharges to the debtor,
on receiving a fair and just dividend of the
estate and effects; and appear for the ward in
all actions/proceedings, unless another person
is appointed for that purpose. (Rule 96, Section
3)

3. To manage the ward’s estate frugally and

without waste; apply the income/profits to the
comfortable and suitable maintenance of the
ward and his family; and if the income/profits are
insufficient, sell/encumber the real estate (upon
court authorization). (Rule 96, Section 4)
6. The court may authorize the guardian to join in
an assent to an estate partition held by the
ward jointly or in common with others. The
authority shall only be granted after hearing,
notice to the ward’s relatives, and a careful
investigation as to the proposed action’s
necessity/propriety. (Rule 96, Section 5);

395

Proceedings When A Person is Suspected of
Embezzling or Concealing Property of the Ward
Upon complaint of the guardian or ward or any
person interested in the ward’s estate, that anyone
is suspected of having
embezzled/concealed/conveyed away any of the
ward/estate’s property, the court may cite the
suspected person to appear for examination and
may order to secure the estate. (Rule 96, Section 6)
Purpose: To secure evidence from persons
suspected of embezzling, concealing or conveying
away any property of the ward so as to enable the
guardian to institute the appropriate action to obtain
possession of and secure title to the property. (Cui
v. Piccio, G.R. No. L-5131,1952)
Generally, the guardianship court exercising special
and limited jurisdiction cannot actually order the
delivery of the property of the ward found to be
embezzled, concealed or conveyed. Only in
extreme cases, where property clearly belongs to
the ward or where his title thereto has been
already judicially decided, may the court direct its
delivery to the guardian.
In effect, there can only be delivery or return of the
embezzled, concealed or conveyed property of the
ward, where the right or title of said ward is clear
and undisputable.
However, where title to any property said to be
embezzled, concealed or conveyed is in dispute,
under the Cui case, the determination of said title or
right whether in favor of the person said to have
embezzled, concealed or conveyed the property
must be determined in a separate ordinary action
and not in guardianship proceedings. (Parco v. CA,
G.R. No. L-33152, 1982)
Conflicts regarding the ownership or title to the
property in the hands of the guardian in his capacity
as such should be litigated in a SEPARATE
PROCEEDING, the court in the guardianship
proceeding being SOLELY concerned with the
ward’s care and custody and proper administration
of his properties. (Viloria v. Administrator of
Veterans Affairs, G.R. no. L-9620, 1957)
Selling and Encumbering Property of Ward
The guardian may present a VERFIED PETITION
stating that:
1. Income of estate is insufficient to maintain the
ward and his family; or
2. When it is for the benefit of the ward. (Rule 95,
Section 1)
If it appears to be probable that such sale or
encumbrance is necessary or is beneficial, the court
shall make an order directing the next of kin of the
ward OR all persons interested in the estate to
appear and SHOW CAUSE why the petition should
not be allowed. (Rule 95, Section 2)
There shall be a hearing where the court shall
refuse the petition OR order such sale or
encumbrance for the maintenance of the ward and
his family or for the incompetent’s benefit.
NO order of sale granted shall continue in force
more than one (1) year after granting the same,
without a sale being had. (Rule 95, Section 4)
Investment of Proceeds and Management of
Estate
The court may authorize and require the guardian to
invest the proceeds of sale and encumbrances, and
any other of his ward’s money in his hands, as shall
be for the best interest of all concerned, and may
make orders for the management, investment, and
disposition of the estate and effects, as
circumstances may require. (Rule 95, Section 5)
The court's approval of the annual inventories
and accounts submitted by the guardian, with the
conformity of the U. S. Veterans Administration and
the mother of the minors, where the investment of
the properties of the wards made without
securing previous judicial authority, was
mentioned and accounted for, amounts to a
RATIFICATION of the acts of the guardian and
compliance with the provisions of Section 5, Rule
95 of the Rules of Court. (Stegner v. Stegner, G.R.
no. L-8532, 1957)
2. CONDITIONS OF THE BOND OF
THE GUARDIAN
396

BEFORE an appointed guardian enters upon the
execution of his trust, or letters of guardianship
issue, he shall give a bond.
The BOND Shall be CONDITIONED:
To make and return, within three (3) months, the
estate’s inventory of the estate of his ward
which shall come to his possession or
knowledge ;
To faithfully execute the duties of his trust, to
manage and dispose of the estate according to
ward’s best interests, and to provide for the
ward’s proper care/custody/education;
To render a true and just account of the estate in
his hands and all proceeds/interest derived
therefrom;
At the expiration of his trust, to settle his accounts
with the court and deliver the remaining
estate to the person lawfully entitled thereto;
To perform all court orders. (Rule 94, Section 1)
In case of breach of the bond’s conditions, the bond
may be prosecuted in the same proceeding or in a
separate action, for the use and benefit of the ward
or of any person legally interested in the estate.
(Rule 94, Section 3)
New bond
Whenever necessary, the court may require a new
bond to be given by the guardian. After notice to
interested persons, the sureties on the old bond
may then be discharged from further liability when
no injury will result to interested parties. (Rule 94,
Section 2)
Who May Petition for Judicial Determination of
Ward’s COMPETENCY
1. A person who has been declared incompetent;
2. His guardian;
3. Relative;
4. Friend. (Rule 97, Section 1)
Who May Oppose
1. Guardian;
2. Relative of the ward;
3. Any other person, in the discretion of the court.
(Rule 97, Section 1)
The petition shall be verified under oath. A hearing
will then be set by the court and reasonable notice
shall be given to the guardian of the incompetent
and to the incompetent himself. If it be found that
the person is no longer incompetent, his
competency shall be adjudged and the
guardianship shall cease. (Rule 97, Section 1)
Termination of Guardianship
1. Competency of the ward has been judicially
determined; (Rule 97, Section 1)
2. Death of guardian or of ward;
3. Guardianship is no longer necessary. (Rule 97,
Section 3)
Ground for Removal or Resignation of Guardian
1. Guardian becomes insane;
2. Incapable of discharging trust;
3. Unsuitable to discharge functions;
4. Wastage or mismanagement of the property of
the ward
5. Failure to render account or make a return within
thirty (30) days after it was due. (Rule 97 of the
Rules of Court, Sec. )
The widow, as legal heir of her deceased husband,
could not validly enter into an agreement with
herself as natural guardian of her minor son for the
determination and apportionment of their respective
shares in the inheritance. Such extrajudicial
settlement is void and of no legal effect. In addition,
since it evinces a conflict of interests between the
appellant and the minor as heirs of the deceased,
397
this fact alone suggests the propriety and
advisability of relieving the appellant as such
guardian. (Ribaya v. Ribaya, G.R. no. 48895, 1943)
FAMILY COURT of the province or city where the
MINOR RESIDES.
If the minor resides in a foreign country, the petition
shall be filed in the FAMILY COURT where his
property or part thereof is situated.

Grounds of Petition (Sec. 4)

1. Death, continued absence, or incapacity of his
parents;
2. Suspension, deprivation or termination of
parental authority;
3. Remarriage of his surviving parent, if the latter is
found unsuitable to exercise parental authority;
or
4. When the best interest of the minor so require.
3. RULE ON GUARDIANSHIP OVER
MINORS (A.M. No. 03-02-05-SC, Qualifications of Guardians (Sec. 5)
1. Moral character;
effective May 1, 2003) 2. Physical, mental and psychological condition;
3. Financial status;
This Rule applies to petitions for guardianship over 4. Relationship of trust with the minor;
the person, or property, or both of a minor. This 5. Availability to exercise the powers and duties of
includes incompetent minors. a guardian for the full period of the guardianship;
6. Lack of conflict of interest with the minor; and
Rule on Guardianship over Minors 7. Ability to manage the property of the minor.
1. The father and mother shall jointly exercise legal
guardianship over the person and property of
their unemancipated common child without the
necessity of a court appointment. The Rule shall
be suppletory to the provisions of the Family
Code on guardianship (Sec. 1).
2. FOR RESIDENTS - On grounds authorized by
law, any relative or other person on behalf of a
minor OR the minor himself IF fourteen (14)
years of age or over, may petition the Family
Court for the appointment of a general guardian
over the person or property, or both, of such
minor. The petition may also be filed by the
Secretary of DSWD and of the DOH in the case
Order of Preference in the Appointment of
of an insane minor who needs to be hospitalized
Guardian or the Person and/or Property of Minor
(Sec. 2).
(Sec. 6)
3. FOR NON-RESIDENTS - When the minor
1. The surviving grandparent and in case several
resides outside the Philippines but has property
grandparents survive, the court shall select any
in the Philippines, any relative or friend of such
of them taking into account all relevant
minor, or anyone interested in his property, in
considerations;
expectancy or otherwise, may petition the
2. The oldest brother or sister of the minor over 21
Family Court for the appointment of a guardian
years of age, unless unfit or disqualified;
over the property. (Sec. 12)
3. The actual custodian of the minor over 21 years
of age, unless unfit or disqualified; and
Where to File Petition
4. Any other person, who in the sound discretion of
A petition for guardianship over the person or
the court, would serve the best interests of the
property or both of a minor may be filed in the
minor.

398

Factors to Consider In Appointing a Guardian:
(Sec. 5)
1. Moral character;
2. Physical, mental and psychological condition;
3. Financial status;
4. Relationship of trust with the minor;
5. Availability to exercise the powers and duties of
a guardian for the full period of the guardianship;
6. Lack of conflict of interest with the minor; and
7. Ability to manage the property of the minor
Time and Notice of Hearing (Sec. 8)
After filing of the petition for appointment of a
guardian, the court shall fix a time and place for the
hearing. NOTICE shall be given to the persons
mentioned in the petition (relatives within the fourth
(4th) civil degree, persons for whom letters of
guardianship are prayed), including the minor if
fourteen (14) years or over.
For NON-RESIDENTS, notice shall be given by
publication.
The court shall order a social worker to conduct a
case study of the minor and all the prospective
guardians and submit his report and
recommendation to the court for its guidance before
the scheduled hearing.
Opposition to Petition - Grounds
1. Reaching of majority age of the minor; or
2. Unsuitability of the person for whom letters are
prayed. (Sec. 10)
Bond of Guardian (Sec. 14)
Before a guardian appointed enters upon the
execution of his trust, or letters of guardianship
issue, he shall give a bond, in such sum as the
court directs, conditioned on the following:
1. To make and return to the court, within three (3)
months, a true and complete inventory of all
the estate, real and personal, of his ward which
shall come to his possession or knowledge of
any other person for him;
2. To faithfully execute the duties of his trust, to
manage and dispose of the estate according to
these rules for the best interests of the ward,
and to provide for the proper care, custody, and
education of the ward;
3. To render a true and just account of all the
estate of the ward in his hands, and of all
proceeds or interest derived therefrom, and of
the management and disposition of the same, at
the time designated by these rules and such
other times as the courts directs, and at the
expiration of his trust to settle his accounts with
the court and deliver and pay over all the estate,
effects, and moneys remaining in his hands, or
due from him on such settlement, to the person
lawfully entitled thereto;
4. To perform all orders of the court by him to be
performed.
Grounds to Petition to Sell or Encumber
Property (Sec. 19)
1. Property is insufficient to maintain and educate
the ward; or
2. It is for the ward’s benefit.
Grounds for Removal or Resignation of
Guardian: (Sec. 24)
1. When a guardian becomes insane or otherwise
incapable of discharging his trust;
2. Found to be unsuitable;
3. Has wasted or mismanaged the property of the
ward;
4. Has failed to render an account or make a return
for thirty days (30) after it’s due;
5. The court may allow the guardian to resign for
justifiable causes.
Upon removal or resignation of the guardian, the
court shall appoint a new one
Old Age may be a determining factor in the removal
of a guardian. (Francisco v. CA, G.R. No. L-14628,
1960)
399
 a. Effects of adoption
Grounds for Termination of Guardianship (Sec. b. Instances when adoption may be
25) rescinded
1. The ward has come of age; and c. Effects of rescission of adoption
2. The ward has died.

END OF TOPIC

3. INTER-COUNTRY ADOPTION

a. When allowed
b. Functions of the RTC
c. “Best interest of the minor” standard

L. ADOPTION
(Rules 99-100, superseded
by Rule on Adoption, A.M.
No. 02-06-02-SC)

1. DISTINGUISH DOMESTIC
ADOPTION FROM INTER-
COUNTRY ADOPTION

1. DISTINGUISH DOMESTIC
ADOPTION FROM INTER-COUNTRY
ADOPTION
2. DOMESTIC ADOPTION ACT

400
401
DOMESTIC ADOPTION
Governed by R.A. 8552, the Domestic Adoption Act of
1998; procedure governed by A.M. No. 02-06-02-SC,
August 22, 2002.
Applies to domestic adoption of Filipino children, where
the entire adoption process beginning from the filing of
the petition up to the issuance of the adoption decree
takes place in the Philippines.
WHO MAY BE ADOPTED
INTER-COUNTRY ADOPTION
Governed by R.A. 8043, the Inter-Country Adoption
Act of 1995; procedure governed by the Amended
Implementing Rules and Regulations on ICAA.
Applies to adoption of a Filipino child in a foreign
country, where the petition for adoption is filed, the
supervised trial custody is undertaken and the
decree of adoption is issued outside of the
Philippines.
WHO MAY BE ADOPTED
402
A child legally available for adoption. Only a legally free child may be adopted.

1. Below 18 years of age; and judicially declared

available for adoption.
2. Legitimate son/daughter of one spouse by the other
spouse;
3. Illegitimate son/daughter by a qualified adopter;
4. Person of legal age if, prior to the adoption said
person has been consistently considered and treated by
the adopter/s as his/her own child since minority.
5. A child whose adoption has been previously
rescinded
6. A child whose biological or adoptive parents have
died. Provided, that NO proceedings shall be
commenced within six (6) months from the time of death Requisites
of some parents

1. Below 15 years of age; and

2. Has been voluntarily or involuntarily committed to

the DSWD in accordance with PD 603.

WHO MAY ADOPT WHO MAY ADOPT

403
 Filipino Citizens
1. Of legal age;
2. In possession of full civil capacity and legal rights;
3. Of good moral character;
4. Has not been convicted of any crime involving moral
turpitude;
5. Emotionally and psychologically capable of caring for
children;
6. In a position to support and care for his/her children
in keeping with the means of the family;
7. At least sixteen (16) years older than the adoptee but
this latter requirement may be waived if
a) The adopter is the biological parent of the adoptee;
or
b) The adopter is the spouse of the adoptee’s parent;
and
8. Permanent resident of the Philippines.
Aliens
1. Same qualifications as above, and in addition:
2. His/her country has diplomatic relations with the
Republic of the Philippines;
3. His/her government allows the adoptee to enter
his/her country as his/her adopted son/daughter;
4. Has been living in the Philippines for at least three (3) disqualifications provided in the ICAA and in other
continuous years prior to the filing of the application for applicable Philippine laws;
adoption and maintains such residence until the
adoption decree is entered; and
5. Has been certified by his/her diplomatic or consular
office or any appropriate government agency that
he/she has the legal capacity to adopt in his/her
country.
This requirements of RESIDENCY and
CERTIFICATION OF ALIEN’S QUALIFICATION may
be WAIVED if
1. A former Filipino citizens seeks to adopt a relative
within the 4thdegree of consanguinity or affinity;
2. One seeks to adopt the legitimate son/daughter of
his/her Filipino spouse;
3. One who is married to a Filipino citizen and seeks to
adopt a relative within the 4th degree of consanguinity or b) Adopter is the spouse of the parent by nature of
affinity of the Filipino spouse
Guardians
1. After the termination of the guardianship; and
2. Clearance of financial accountabilities
Filipino Citizens
1. Permanent resident of a foreign country;
2. Has the capacity to act and assume all rights and
responsibilities of parental authority under Philippine
laws;
3. Has undergone the appropriate counseling from
an accredited counselor in country of domicile;
4. Has not been convicted of a crime involving moral
turpitude;
5. Eligible to adopt under Philippine laws;
6. In a position to provide the proper care and
support and to give the necessary moral values and
example to all his children, including the child to be
adopted;
7. Agrees to uphold the basic rights of the child as
embodied under Philippine laws, the UN Convention
on Rights of the Child, and to abide by the rules and
regulations issued to implement the provisions of the
ICAA;
8. Residing in a country with whom the Philippines
has diplomatic relations and whose government
maintains a similarly authorized and accredited
agency and that adoption is allowed in that country;
9. Possesses all the qualifications and none of the
10. At least 27 years of age at the time of the
application; and
11. At least 16 years older than the child to be
adopted at the time of application, unless
a) Adopter is the parent by nature of the child to
be adopted; or
b) Adopter is the spouse of the parent by nature of
the child to be adopted.
Aliens
1. At least 27 years of age at the time of the
application;
2. At least 16 years older than the child to be
adopted at the time of application, unless
a) Adopter is the parent by nature of the child to
be adopted; or
the child to be adopted.
3. Has the capacity to act and assume all rights and
responsibilities of parental authority under his
national laws;
4. Has undergone the appropriate counseling from
an accredited counselor in his/her country;
5. Has not been convicted of a crime involving moral
turpitude;
6. Eligible to adopt under his/her national law;
7. In a position to provide the proper care and
404
 support and to give the necessary moral values and
example to all his children, including the child to be
adopted;
8. Agrees to uphold the basic rights of the child as
embodied under Philippine laws, the UN Convention
on the Rights of the Child, and to abide by the rules
and regulations issued to implement the provisions
of the ICAA;
9. Comes from a country with whom the Philippines
has diplomatic relations and whose government
maintains a similarly authorized and accredited
agency and that adoption is allowed under his/her
national laws; and
10. Possesses all the qualifications and none of the
disqualifications provided in the ICAA and in other
applicable Philippine laws.

REQUIREMENT OF JOINT ADOPTION BY REQUIREMENT OF JOINT ADOPTION

SPOUSES BY SPOUSES

General Rule - Husband and wife shall jointly adopt; General Rule - If the adopter is married, his/her
otherwise, the adoption shall not be allowed. spouse MUST jointly file for the adoption.

Exceptions
1. If one spouse seeks to adopt the legitimate
son/daughter of the other;
2. If one spouse seeks to adopt his/her own illegitimate
son/daughter but the other spouse must give his/her
consent;
3. If the spouses are legally separated from each other.

PROCEDURE PROCEDURE

405
Where to File Application Where to File Application
In the Family Court of the province or city where the Either in
prospective parents reside.

Petition
Must be VERIFIED and specifically state at the heading
of the initiatory pleading whether the petition contains
an application for
1. Change of name 1. Family Court having jurisdiction over the place
2. Rectification of simulated birth where the child resides or may be found, or
3. Voluntary or involuntary commitment of children
4. Declaration of child as abandoned, dependent or
neglected.

After Filing
The petition shall not be set for hearing without a case
study report by a licensed social worker. 2. Inter-Country Adoption Board (ICAB) through an
intermediate agency, whether governmental or an
Supervised Trial Custody authorized and accredited agency, in the country of
1. Temporary parental authority is vested in prospective the prospective adoptive parents.
adopter;
2. Period is at least six (6) months, but MAY be reduced
by the court motu propio or upon motion;
3. If adopter is alien, the law mandatorily requires
completion of the six (6) month trial custody and may
not be reduced, except if:
a) A former Filipino citizen seeks to adopt a relative
within 4thdegree of consanguinity or affinity;
b) One seeks to adopt the legitimate son/daughter of
his/her Filipino spouse;
c) One who is married to a Filipino citizen and seeks
to adopt jointly with his/her spouse a relative within the
4th degree of consanguinity or affinity of the Filipino
spouse. After Filing:
  1. If filed in the Family Court, court determines
Decree of Adoption sufficiency of petition in respect to form and
Issued by Philippine Family Court. substance, after which, petition is transmitted to
ICAB;
Consent Required 2. If petition is already with ICAB, it conducts
Written consent of the following to the adoption is matching of the applicant with an adoptive child;
required, in the form of affidavit: 3. After matchmaking, the child is personally fetched
by the applicant for the trial custody which takes
1. Adoptee, if 10 years of age or over; place outside of the Philippines.
2. Biological parent/s of the child, if known, or the legal
guardian, or the proper government instrumentality
which has legal custody of the child;
3. Legitimate and adopted sons or daughters, 10 years
of age or over, of the adopter/s and adoptee, if any;
4. Illegitimate sons/daughters, 10 years of age of over,
of the adopter if living with said adopter and the latter’s
spouse, if any;
5. Spouse, if any, of the person adopting or to be

406
adopted. Supervised Trial Custody

1. This process takes place outside of the country

and under the supervision of the foreign
adoption agency;

2. For a period of 6 months;

3. If unsuccessful, ICAB shall look for another
prospective applicant. Repatriation of the child is to
be resorted only as a last resort;
4. If successful, ICAB transmits a written consent for
the adoption to be executed by the DSWD, and the
applicant then files a petition for adoption in his/her
country.

Decree of Adoption
Issued by a foreign court.

Consent Required

407
1. Written consent of biological or adopted children
above 10 years of age, in the form of sworn
statement is required to be attached to the
application to be filed with the FC or ICAB;
2. If a satisfactory pre-adoptive relationship is formed
between the applicant and the child, the written
consent to the adoption executed by the DSWD is
required.
 

408
Venue and Jurisdiction:
1. For Domestic – Family Court of the place
where the ADOPTER resides (Sec. 6, A.M.
02-6-02)
2. For Inter-country – Family Court of the
place where the ADOPTEE resides (IF filed
with Family Court), or Inter-Country Adoption
Board (Sec. 10, RA 8043)
3. For RECISSION OF ADOPTION – Family
Court of the place where ADOPTEE resides
(Sec. 19, A.M. 02-6-02)
2. DOMESTIC ADOPTION ACT
R.A. 8552 and A.M. 02-06-02-SC
a. EFFECTS OF ADOPTION (ART. V, R.A.
8552)
1. Adopter will exercise parental authority;
2. All legal ties between biological parents and
the adoptee shall be severed, except when
biological parent is spouse of adopter;
3. Adoptee shall be considered legitimate child
of adopter for all intents and purposes;
4. Adopters shall have reciprocal rights of
succession without distinction from legitimate
filiation.
The decree of adoption shall have a retroactive
effect from the time of the filing of the
original petition.
b. INSTANCES WHEN ADOPTION MAY BE
RESCINDED
Under the Domestic Adoption Act of 1998, the
adopter can NO longer rescind the adoption, he
can merely disinherit the adoptee in accordance
with the provisions of the Civil Code. Rescission
relates only as to the date of the judgment.
Hence, vested rights prior to rescission should
be respected.
Who Files
1. Adoptee: Over eighteen (18) years of age;
or if still a minor, with assistance of DSWD.
2. Guardian or counsel, if adoptee is over
eighteen (18) BUT incapacitated. (Sec. 19,
A.M. 02-6-02)
Venue
Family Court of the city or province where the
ADOPTEE resides. (Sec. 20, A.M. 02-6-02)
Period within Which to File Verified Petition
Within five (5) years from reaching the age of
majority or after recovery from incompetency
Adverse party shall file his answer within fifteen
(15) days from receipt of order of court
requiring him to answer. (Section 21, A.M.
02-6-02)
Grounds for Rescission
1. Repeated physical violence and verbal
maltreatment by the adopter despite having
undergone counseling;
2. Attempt on the life of the adoptee;
3. Sexual assault or violence; or
4. Abandonment or failure to comply with
parental obligations. (Section 19, A.M. 02-6-
02)
c. EFFECTS OF RESCISSION OF
ADOPTION
1. Parental authority of biological parent or legal
custody of DSWD will be restored;
2. Reciprocal rights of adoptee and adopter will
be extinguished;
3. Vested rights acquired prior to judicial
rescission shall be respected;
4. Successional rights shall revert to its status
prior to adoption, as of the date of judgment
of judicial rescission;
5. Adoptee shall use the name stated in his
original birth or foundling certificate;
6. Civil registrar will reinstate his original birth or
foundling certificate. (Sec. 23, A.M. 02-6-02)
Unlike in revocation of guardianship, revocation
of adoption is a SEPARATE proceeding from the
adoption.
3. INTER-COUNTRY ADOPTION
[R.A. 8043]
a. WHEN ALLOWED
Inter-country adoptions are allowed when the
same shall prove beneficial to the child’s best
interests, and shall serve and protect his/her
fundamental rights (Sec. 2).
Inter-country adoption shall be the last resort,
and will not be allowed until all possibilities for
adoption of the child under the Family Code
have been exhausted.
It is allowed when all the requirements and
standards set forth under R.A. 8043 are
complied with.
Who May Adopt
1. Any alien or Filipino citizen permanently
residing abroad who is at least twenty-seven
(27) years of age.
2. Other requirements are the same as with
R.A. 8552.
Who May Be Adopted
Only a child legally available for domestic
adoption may be the subject of inter-country
adoption.
A child under the Inter-Country Adoption Act is
defined as any person below 15 years of age.
(Sec. 29)
B. FUNCTIONS OF THE REGIONAL TRIAL
COURT
The Regional Trial Court, after finding the
petition (in case of foreigners who file a petition
for adoption in the Philippines under the
Domestic Adoption Act of 1998) to be sufficient
in form and substance and a proper case for
inter-country adoption, shall immediately
transmit the petition to the Inter-Country
Adoption Board for appropriate action. (Section
30 of the Amended IRR on R.A. 8043)
C. “BEST INTEREST OF THE MINOR”
STANDARD
This refers to the totality of the circumstances
and conditions which are most congenial to the
survival, protection, and security of the minor.
This is for his physical, psychological and
emotional development. It also means the least
detrimental available alternative for safeguarding
the growth and development of the minor.
(Section 14, A.M. No. 03-04-04-SC 2003-04-22)
END OF TOPIC
M. WRIT OF HABEAS
 It may be analogized to a proceeding IN REM
CORPUS and instituted for the sole purpose of fixing the
(RULE 102) status of a person. (Herrera, Remedial Law III-A
Special Proceedings and Special Rules
Implementing the Family Courts Act of 1997,
2005)

Purposes
Its vital purposes are to obtain immediate relief
from illegal confinement, to liberate those who
may be imprisoned without sufficient cause, and
1. CONTENTS OF THE PETITION to deliver them from unlawful custody. (Velasco
v. Court of Appeals, G.R. no. 118644, 1995)
2. CONTENTS OF THE RETURN
3. DISTINGUISH PEREMPTORY The object of the writ of habeas corpus is to
WRIT FROM PRELIMINARY inquire into the legality of the detention, and, if
CITATION the detention is found to be illegal, to require the
4. WHEN NOT release of the detainee. (Mangila v. Judge
PROPER/APPLICABLE Pangilinan, G.R. no. 160739, 2013)
5. WHEN WRIT
DISALLOWED/DISCHARGED Habeas Corpus Writ Extends To:
1. All cases of illegal confinement/detention by
6. DISTINGUISH FROM WRIT OF which any party is deprived of his liberty;
AMPARO AND HABEAS DATA 2. If the rightful custody of a person is withheld
7. RULES ON CUSTODY OF from the one entitled to it.
MINORS AND WRIT OF HABEAS 3. If, as a consequence of a judicial proceeding:
CORPUS IN RELATION TO
CUSTODY OF MINORS (A.M. NO.
03-04-04-SC)

a) There is deprivation of a constitutional

right resulting in the person’s restraint;
b) The court has no jurisdiction to impose
the sentence; or
c) An excessive penalty was imposed,
because the sentence is void as to the
excess. (Parulan v. Director of Prisons,
G.R. no. L-28519, 1968)

Writ of Habeas Corpus

Under Section 1, the WRIT OF HABEAS
CORPUS shall extend to all cases of illegal
confinement or detention by which any person is
deprived of his liberty, or by which the rightful
custody of any person is withheld from the
person entitled thereto except as otherwise
expressly provided by law. (Rule 102, Section 1)
4. Invasion or Rebellion, when public safety
requires it. (Article VII, Section 18 of the
1987 Constitution)
General rule: Writ of Habeas Corpus shall NOT
issue if the restraint is voluntary. (Sombong v.
CA, G.R. No. 111876, 1996)
 proceedings and the assailed order are, for any
reason, null and void. The writ is not ordinarily
granted where the law provides for other
remedies in the regular course, and in the
absence of exceptional circumstances.
Exception: Writ of Habeas Corpus is a
proper remedy to enable parents to
regain custody of a minor, even if the
minor is in the custody of a 3 rd person
of his own free will. (Sombong v. CA,
G.R. No. 111876, 1996)
Rationale: Custody cases involving minors are
prosecuted to determine custody rights over a
child.
Void Judgment of Conviction
In a case where there is a conviction but a
violation of right against self-incrimination is
indeed violated, the Writ of Habeas Corpus shall
issue. Said void judgment of conviction may be
challenged by an attack through Habeas
Corpus. This writ may issue even if another
remedy which is less effective may be availed of
by the defendant. Thus, failure by the accused
to appeal does not preclude a recourse to the
writ. The writ may be granted upon a judgment
already final. (Chavez v. Court of Appeals, G.R.
No. L-29169, 1968)
Errors of Fact or Law – not correctible by
Habeas Corpus
Mere errors of fact or law, which did not have
the effect of depriving the trial court of its
jurisdiction over the case and the person of the
defendant, are not correctible in a petition for the
issuance of the writ of habeas corpus; if at all,
these errors must be corrected on certiorari or
on appeal, in the form and manner prescribed by
law.
When Other Remedies are Available
The inquiry in a habeas corpus proceeding is
addressed to the question of whether the
Moreover, habeas corpus should not
be granted in advance of trial. The
orderly course of trial must be pursued
and the usual remedies exhausted
before resorting to the writ where
exceptional circumstances are extant.
In another case, it was held that
habeas corpus cannot be issued as
a writ of error or as a means of
reviewing errors of law and
irregularities not involving the
questions of jurisdiction occurring
during the course of the trial,
subject to the caveat that
constitutional safeguards of human
life and liberty must be preserved, and
not destroyed. (Mangila v. Judge
Pangilinan, G.R. no. 160739, 2013)
Exception:
It does not, however, follow that if
certiorari is available, an application for
a writ of habeas corpus will absolutely
be barred. Writ of Habeas Corpus may,
nevertheless, be available in
EXCEPTIONAL CASES, for the writ
should not be considered subservient
to procedural limitations which glorify
form over substance. It must be kept in
mind that although the question most
often considered in both habeas corpus
and certiorari proceedings is whether
an inferior court has exceeded its
jurisdiction, the former involves a
collateral attack on the judgment and
reaches the body but not the record,
while the latter assails directly the
judgment and reaches the record but
not the body. (Velasco v. Court of
Appeals, G.R. no. 118644, 1995)
 Procedure for Grant of Writ
1. CONTENTS OF THE PETITION Filing of the verified petition;
Allowance of Writ if determined by the judge
that the writ ought to issue;
Who May File an Application for a Writ of Service of writ by sheriff or other officer;
Habeas Corpus Return filed; reply to the return, if any.
The application shall be by petition signed and Hearing on return
verified by: Judgment on the petition – dismissal of the
1. The party for whose relief it is intended; or petition or order of discharge from
2. Some person on his behalf. (Rule 102, imprisonment/restraint.
Section 3)

The Petition Shall Set Forth the Following

1. The person in whose behalf the application is
made is imprisoned or restrained of his
liberty;
2. Name of the person detaining another or
assumed appellation; TO WHOM WRIT DIRECTED, AND WHAT TO
3. Place where he is imprisoned or restrained of REQUIRE
his liberty; or
4. A copy of the commitment or cause of To Whom Writ Served
detention, or allegation that there’s none. 1. In case of imprisonment by an officer – the
(Rule 102, Section 3) writ shall be directed to such OFFICER and
shall command him to have the body of the
Who May Grant the Writ person restrained before the court
1. Supreme Court or any member thereof – designated in the writ.
enforceable anywhere in the Philippines and 2. In case of imprisonment by a person NOT an
made returnable before any court officer – the writ shall be directed to an
2. Court of Appeals or any member thereof - OFFICER and shall command him to
enforceable anywhere in the Philippines and
made returnable before any court
3. Regional Trial Court or a judge thereof –
enforceable only within his judicial district,
returnable only to itself. (Rule 102 , Sec. 2)

The Supreme Court, the Court of Appeals a) Take and have to body of the person
and Regional Trial Courts have restrained before the court designated in
CONCURRENT jurisdiction to issue Writs of the writ; and
Habeas Corpus. b) Summon the private person by whom he
is restrained to appear before said judge
In the absence of ALL Regional Trial Court to show the cause of the imprisonment or
judges in a province or city, Municipal Trial Court restraint. (Rule 102, Section 6)
judges MAY hear and decide petitions for a Writ
of Habeas Corpus in that province or city.

Family Courts have EXCLUSIVE ORIGINAL

JURISDICTION to issue Writ of Habeas Corpus
involving the custody of minors. (R.A. 8369)

The Sandiganbayan may grant the writ only if it

is in aid of its appellate jurisdiction (Festin,
Special Proceedings: A Foresight to the Bar
Exam, 2nd Ed. 2011)
Service of the Writ
Service of the Writ shall be made by made by
leaving the original with the person to whom it is
directed and preserving a copy on which to
make return of service. (Rule 102, Section 7)
Defect of Form
No Writ of Habeas Corpus can be disobeyed for
defect or form IF it sufficiently states in whose
custody or under whose restraint the party
imprisoned is held AND the court or judge to
whom he is to be brought. (Rule 102, Section 9)
Execution of Writ
The officer to whom the Writ is directed shall
convey the person imprisoned or restrained
before the court allowing the writ and on such
date and time specified in the writ UNLESS such
person cannot be produced without danger by
reason of some sickness or infirmity.
The officer shall make due return of the Writ,
together with the day and cause of the caption
and restraint of such person. (Rule 102, Section
8)
2. CONTENTS OF RETURN
The Return Shall be in Writing and Shall
State
1. Whether he has or has not the party in his
custody or power, or under restraint;
2. The authority and the true and whole
cause of restraint, set forth at large, with a
copy of the writ, order execution, or other
process, if any, upon which the party is held;
3. If the party is in his custody or power or is
restrained by him, and is not produced,
particularly the nature and gravity of the
sickness or infirmity of such party by
reason of which he cannot, without danger,
be bought before the court or judge;
4. If he has had the party in his custody or
power, or under restraint, and has
transferred such custody or restraint to
another, particularly to whom, at what time,
for what cause, and by what authority such
transfer was made. (Rule 102, Section 10)
The return or statement shall be signed and
sworn to by the person who makes it if the
prisoner is not produced, UNLESS the return is
made and signed by a sworn public officer in his
official capacity. (Rule 102, Section 11)
Hearing UPON Return
When the Writ is returned before the judge, he
may forthwith HEAR and examine the return and
such other matters as are submitted for
consideration. (Rule 102, Section 12)
Effect of Failure to File a Return
Failure of petitioners to file a return of the writ
WARRANTS DISMISSAL of the petition. Unless
the allegations in the return are controverted,
they are DEEMED to be true or admitted.
(Arocha v. Vivo, 21 SCRA 532, G.R. No. L-
24844, 1967; Florendo v. Javier, G.R. no. L-
36101, 1979)
When Return Evidence of Cause of Restraint
and When Only a Plea of Facts; Effect of
petitioner’s failure to file a reply to the return
or to controvert statements in the return
during the hearing.
1. If the return is filed by an officer
who is the respondent detaining the person
concerned - if the prisoner is in custody under a
warrant of commitment (public authority) in
pursuance of law, the return is considered
PRIMA FACIE EVIDENCE of the legality of the
commitment, imprisonment or restraint. (Rule
102, Sec. 13)
Thus, the failure of petitioners to file a reply to
the return or controvert the matters stated in the
return, WARRANTS DISMISSAL of the petition.
Unless the allegations in the return are
controverted, they are DEEMED to be true or
admitted (Arocha v. Vivo, 21 SCRA 532, G.R.
No. L-24844, 1967; Florendo v. Javier, G.R. no.
L-36101, 1979)
2. If the return is filed by an officer in
case the prisoner is restrained by a private
authority or person - the return is considered
only a PLEA of FACTS, and the party claiming
the custody must prove such facts. Failure to
reply to the return or controvert the return is
NOT fatal to the petition. (Rule 102, Section 13)
When LAWFULLY Imprisoned - When
Recommitted or When Bailed
If it appears that the prisoner was LAWFULLY
committed AND is charged with an offense
punishable by death, he shall NOT be released,
discharged or bailed.
If he is LAWFULLY imprisoned AND is charged
with an offense NOT punishable by death, he
MAY be recommitted to imprisonment OR
admitted to bail in the discretion of the judge.
(Rule 102, Section 14)
When Prisoner Discharged IF NO APPEAL
When the court is satisfied that a prisoner is
unlawfully imprisoned or restrained, an order will
be made for the DISCHARGE from confinement.
Such discharge will not be effective UNTIL a
copy of the order is SERVED on the officer or
person detaining the prisoner. (Rule 102,
Section 5)
Appeal
Appeal may be made forty-eight (48) hours from
notice of the judgment or final order. This shall
be in the form of a NOTICE OF APPEAL. (BP
no. 129, Sec. 39 as amended by RA 7691)
Prisoner discharged upon a Writ of Habeas
Corpus shall NOT be again imprisoned for the
SAME OFFENSE, UNLESS, by lawful order or
process of a court having jurisdiction over the
cause or offense.
Those who recommits or imprisons or causes to
be committed or imprisoned for the same
offense any person set at liberty, shall FORFEIT
the sum of one thousand pesos (P1000) AND
MAY also be punished for CONTEMPT. (Rule
102, Section 17)
3. DISTINGUISH PEREMPTORY
WRIT FROM PRELIMINARY
CITATION
PEREMPTORY WRIT
Issued if the cause of the detention appears to
be patently illegal. Noncompliance with this is
punishable.
PRELIMINARY CITATION
If the person is detained under governmental
authority and the illegality of his detention is not
patent from the petition for the writ, the court
issues the citation to the government officer
having custody to show cause why the habeas
corpus writ should not issue.
4. WHEN NOT
PROPER/APPLICABLE
Instances When the Writ of Habeas Corpus Is
NOT Proper
1. For asserting or vindicating denial of right to
bail (Galvez v. CA, 237 SCRA 685, G.R. No.
114046, 1994);
2. For correcting errors in appreciation of facts
or appreciation of law – where the trial court
had no jurisdiction over the cause, over the
person of the accused, and to impose the
penalty provided for by law, the mistake
committed by the trial court, in the
appreciation of the facts and/or in the
appreciation of the law cannot be corrected
by habeas corpus (Sotto v. Director of
Prisons, G.R. No. L-18871, 1962);
3. Once a person detained is duly charged in
court, he may no longer file a petition for
habeas corpus. His remedy would be to
quash the information or warrant. (Rodriguez
v. Judge Bonifacio, A.M. NO. RTJ-99-1510,
2000);
4. Even granting that a person was illegally
arrested, the petition for a Writ of Habeas
Corpus will NOT prosper because the
detention falls under a “legal process” by
virtue of the complaint filed against him.
(Velasco v. CA, 245 SCRA 677, 1995);
5. If the accused was illegally detained, the
proper remedy would be the quashal of the
warrant of arrest and NOT a Writ of Habeas
 Corpus. (Ilagan v. Enrile, 139 SCRA 349,
G.R. No. 70748, 1985)
Posting of bail is NOT a bar for the accused to
challenge the validity of his arrest. (Rule 114,
Section 26)
5. WHEN WRIT DISALLOWED/
DISCHARGED
The Writ Is Not Allowed When
1. Person is in custody of an officer
a) Under process issued by a court or judge;
or
b) By virtue of a judgment; or
c) By virtue of an order of the court;
AND that the court or judge HAD
JURISDICTION to issue the process, render
the judgment or make the order.
2. Jurisdiction appears after writ is allowed
3. Person is charged with or convicted of an
offense in the Philippines
4. Person is suffering imprisonment under
lawful judgment (Rule 102, Section 4)
6. DISTINGUISH FROM WRIT OF
AMPARO AND HABEAS DATA
Note: See Annex A for comparison of Habeas
Data, Writ of Amparo and Writ of Habeas
Corpus
7. RULES ON CUSTODY OF
MINORS AND WRIT OF HABEAS
CORPUS IN RELATION TO
CUSTODY OF MINORS
(A.M. NO. 03-04-04-SC)
Where Filed
The Family Court has exclusive original
jurisdiction to hear petitions for custody of
minors and the issuance of the writ of habeas
corpus in relation to custody of minors. The
petition for custody of minors shall be filed with
the Family Court of the province or city where
the petitioner resides or where the minor may
be found.
Such petition shall be enforceable only within
the judicial region to which the Family Court
belongs. (Sec. 3, A.M. NO. 03-04-04-SC)
The petition may also be filed with the CA or the
Supreme Court and such petition shall be
enforceable anywhere within the Philippines.
(Sec. 20, A.M. NO. 03-04-04-SC)
The Court is tasked with the duty of
promulgating special rules or procedure for the
disposition of family cases with the best interests
of the minor as primary consideration, taking into
account the United Nations Convention on the
Rights of the Child. It should be clarified that the
writ is issued by the Family Court only in
relation to custody of minors. An ordinary
petition for habeas corpus should be filed in the
regular Court. The issue of child custody may be
tackled by the Family Court without need of a
separate petition for custody being filed. (Sec.
20, A.M. NO. 03-04-04-SC)
Requisites
1. That the petitioner has the right of custody
over the minor;
2. That the rightful custody of the minor is being
withheld from the petitioner by respondent;
and
3. That it is to the best interest of the minor
concerned to be in the custody of petitioner
and not that of the respondent. (Sombong v.
CA, G.R. No. 111876, 1996)
The mother who has custody of the child cannot
refuse to present the child to the court after the
issuance of the writ on the basis of the child of
tender years doctrine. It is not legal basis to
deprive the father of custody. Also, Such petition
did not grant custody to the father but merely
required the mother to bring the child to court to
determine custody. (Salientes v. Abanilla, GR
No. 162734, 2006)
In cases involving minors, the purpose of a
petition for habeas corpus is not limited to the
production of the child before the court. The
main purpose of the petition for habeas corpus
is to determine who has the rightful custody over
the child. Therefore, mere production of the
body of the child does not moot the petition for
habeas corpus if custody has not yet been
decided. (Bagtas v. Hon. Santos, GR No.
166682, 2009)
Who May File
The Committee chose the phrase “any person
claiming custody” as it is broad enough to cover
the following:
1. The unlawful deprivation of the custody of a
minor; or
2. Which parent shall have the care and
custody of a minor, when such parent is in
the midst of nullity, annulment or legal
separation proceedings. (Sec. 2, A.M. NO.
03-04-04-SC)
Motion to Dismiss
A motion to dismiss the petition is NOT allowed
EXCEPT on the ground of lack of jurisdiction
over the subject matter or over the parties. Any
other ground that might warrant the dismissal of
the petition shall be raised as an affirmative
defense in the answer. (Sec. 6, A.M. NO. 03-04-
04-SC)
Case Study Report
Upon the filing of the verified answer of the
expiration of the period to file it, the court may
order a social worker to make a case study of
the minor and the parties and to submit a report
and recommendation to the court at least three
(3) days before the scheduled pre-trial. (Sec. 8,
A.M. NO. 03-04-04-SC)
Pre-trial is MANDATORY. (Sec. 9, A.M. NO. 03-
04-04-SC)
PROVISIONAL ORDER Awarding Custody
After and answer has been filed or the expiration
of the period to file it, the court may issue a
provisional order awarding the custody of the
minor.
The following order of preference shall be
observed as far as practicable:
1. Both parents jointly;
2. Either parent, taking into account all relevant
considerations especially the choice of the
minor over seven (7) years of age and of
sufficient discernment, unless parent chosen
is unfit;
3. The grandparent, if there are several, then
the grandparent chosen by the minor over
seven (7) years of age and of sufficient
discernment, unless grandparent chosen is
unfit or disqualified;
4. The eldest brother or sister over twenty-one
(21) years of age, unless he or she is unfit or
disqualified
5. The actual custodian of the minor over
twenty-one (21) years of age, unless the
former is unfit or disqualified; or
6. Any other person or institution the court may
deem suitable to provide proper care and
guidance for the minor. (Sec. 13, A.M. NO.
03-04-04-SC)
Under Section 1, Rule 102 , the writ of habeas
corpus is available, not only in cases of illegal
confinement or detention by which any person is
deprived of his liberty, but also in cases
involving the rightful custody over a minor.
The general rule is that parents should have
custody over their minor children. But the State
has the right to intervene where the parents,
rather than care for such children, treat them
cruelly and abusively, impairing their growth
and well-being and leaving them emotional
scars that they carry throughout their lives
unless they are liberated from such parents and
properly counseled. (Vingson Yu v. Cabcaban,
UDK No. 14817, 2014, A.M. NO. 03-04-04-SC)
Temporary Visitation Rights
The court shall provide in its order awarding
provisional custody appropriate visitation rights
to the non-custodial parent or parents, unless
the court finds said parent or parents unfit or
disqualified. (Sec. 15, A.M. NO. 03-04-04-SC)
Hold Departure Order
The minor child subject of the petition shall NOT
be brought out of the country without prior order
from the court while the petition is pending. The 1. COVERAGE
court motu propio OR upon application under 2. DISTINGUISH FROM HABEAS
oath may issue EX PARTE a hold departure
order addressed to the Bureau of Immigration CORPUS AND HABEAS DATA
and Deportation of the Department of Justice a 3. DIFFERENCES BETWEEN
copy of the hold departure order within 24 hours AMPARO AND SEARCH
from its issuance and through the fastest WARRANT
available means of transmittal (Sec 16, A.M.
NO. 03-04-04-SC).
4. WHO MAY FILE
5. CONTENTS OF RETURN
Appeal 6. EFFECTS OF FAILURE TO FILE
Notice of Appeal within fifteen (15) days from RETURN
notice of denial of motion for reconsideration or 7. OMNIBUS WAIVER RULE
new trial.
8. PROCEDURE FOR HEARING
No appeal shall be allowed UNLESS a motion 9. INSTITUTION OF SEPARATE
for reconsideration or new trial is filed. (Sec. 19, ACTION
A.M. NO. 03-04-04-SC) 10. EFFECT OF FILING OF A
Confidentiality of the Proceedings
CRIMINAL ACTION
The hearings on custody of minors may, at the 11. CONSOLIDATION
discretion of the court, be closed to the public 12. INTERIM RELIEFS AVAILABLE
and the records of the case shall not be TO PETITIONER AND
released to non-parties without its approval RESPONDENT
(Sec. 21, A.M. NO. 03-04-04-SC)
13. QUANTUM OF PROOF IN
END OF TOPIC APPLICATION FOR ISSUANCE
OF WRIT OF AMPARO

1. COVERAGE

N. WRIT OF AMPARO
Remedy available to those whose right to life,
(A.M. NO. 07-9-12-SC) liberty and security is violated or threatened
with violation by an unlawful act or omission of a
public official or employee or a private
individual or entity. It covers extra-legal killings
and enforced disappearances or threats thereof.
(Sec. 1, A.M. No. 07-9-12-SC)

The writ of amparo does not cover impairment of

the right to travel. For it to be granted, petitioner
must show that his right to travel was curtailed to
such an extent as to threaten his right to life,
liberty and security for which there is no readily
available recourse or remedy. (Reyes v. CA, G.
R. No. 182161, 2009)
EXTRA-LEGAL KILLINGS
Killings committed without due process of law
(i.e. without legal safeguards or judicial
proceedings).
ENFORCED DISAPPEARANCES
Attended by the following circumstances:
1. Arrest/detention/abduction of a person by a
government official or organized groups or
private individuals acting with the in/direct
acquiescence of the State;
2. Carried out by or with the authorization,
support or acquiescence of the State or a
political organization;
3. Refusal of the State to disclose the fate or
whereabouts of the person concerned, or
refusal to acknowledge the deprivation of
liberty, which places such persons outside
the protection of the law.
4. Intention is to remove the person from the
protection of law for a prolonged period of
time. (Navia v. Paradico, G.R. No. 18446,
2012)
It is not a writ to protect concerns that are purely
property or commercial. Neither is it a writ that
shall issue on amorphous and uncertain
grounds. (Spouses Pador v. Arcayan, G.R. no.
183460, 2013)
Distinguish privilege of the Writ of Amparo
from Actual Order called Amparo
The privilege of the Writ of Amparo should be
distinguished from the actual order called the
Writ of Amparo. The privilege includes availment
of the entire procedure outlined in A.M. No. 07-
9-12-SC, the Rule on the Writ of Amparo. (Sec.
De Lima v. Gatdula, G.R. no. 204528, 2013)
The writ of amparo was conceived to provide
expeditious and effective procedural relief
against violations or threats of violation of the
basic rights to life, liberty, and security of
persons; the corresponding amparo suit,
however, is not an action to determine criminal
guilt requiring proof beyond reasonable doubt or
administrative liability requiring substantial
evidence that will require full and exhaustive
proceedings. (The Secretary of National
Defense v. Manalo, G.R. No. 180906, 2008)
2. DISTINGUISH FROM HABEAS
CORPUS AND HABEAS DATA
Note: See Annex A for the comparison of
Habeas Corpus, Habeas Data and Writ of
Amparo
Does non-appearance of the petitioner affect
the validity of a writ of habeas data?
No. That petitioner did not appear in the
proceedings at such stage (SC) for fear of
reprisals does not affect the validity of the writ
granted by the CA. (In the Matter of the Petition
for the Writ of Amparo and Habeas Data in
Favor of Noriel Rodriguez, 696 SCRA 390,
2013)
Examples on instances when a writ of
habeas data may issue
In the case of Noriel Rodriguez, three separate
acts were committed by the respondents which
justify the issuance by the CA of the Writ of
Amparo. First is the taking videos of the photos
of petitioner’s relatives hung on the wall of the
house, and the innermost portions of the house.
There is no reasonable justification for doing
this. Second is the abduction and torture of the
petitioner by the respondents. Third, the failure
to conduct a fair and effective investigation
similarly amounted to a violation of, or threat to
Rodriguez’s rights to life, liberty, and security. (In
the Matter of the Petition for the Writ of Amparo
and Habeas Data in Favor of Noriel
Rodriguez696 SCRA 390, 2013)
3. DIFFERENCES BETWEEN
AMPARO AND SEARCH
WARRANT

The production order under the Amparo Rule
should not be confused with a search warrant for
law enforcement under Article III, Section 2 of
the 1987 Constitution.   This Constitutional
provision is a protection of the people from the
unreasonable intrusion of the government, not a
protection of the government from the demand
of the people such as respondents.
Instead, the amparo production order may be
likened to the production of documents or things
under Section 1, Rule 27 of the Rules of Civil
Procedure. (The Secretary of National Defense
v. Manalo, G.R. No. 180906, 2008)
4. WHO MAY FILE
The Petition Filed By
1. Aggrieved Party; or
2. Any qualified person or entity in the following
order:
a) Any member of the immediate family
b) Any ascendant, descendant or collateral
relative of the aggrieved within the fourth
(4th) civil degree of consanguinity or
affinity
c) Any concerned citizen, organization,
association or institution
Filing by the aggrieved OR representative
suspends the right of all others. (Sec. 2, A.M.
No. 07-9-12-SC)
WHERE TO FILE
Where Filed
1. Regional Trial Court - of the place where the
threat, act or omission was committed OR
any of its elements occurred; or
2. Sandiganbayan; or
3. Court of Appeals; or
4. Supreme Court.
When issued by the REGIONAL TRIAL COURT,
the writ shall be returnable to such court or
judge.
When issued by the Sandiganbayan or the Court
of Appeals, the writ shall be returnable before
such court or judge, or to the Regional Trial
Court of the place where the threat, act or
omission was committed or any of its elements
occurred.
When issued by the Supreme Court, the writ
shall be returnable before such court or judge,
the Court of Appeals, the Sandiganbayan, or the
Regional Trial Court of the place where the
threat, act or omission was committed or any of
its elements occurred.
The writ shall be enforceable ANYWHERE in the
Philippines. (Sec. 3, A.M. No. 07-9-12-SC)
NO docket fees shall be paid. (Sec. 4, A.M. No.
07-9-12-SC)
Issuance of the Writ
Upon the filing of the petition, the court, justice
or judge shall immediately order the issuance of
the writ if on its face it ought to issue. (Sec. 6,
A.M. No. 07-9-12-SC)
5. CONTENTS OF RETURN
Within five (5) working days after service of the
writ, the respondent shall file a verified written
return together with supporting affidavits.
(Pursuant to an amendment made on Oct. 16, stipulations and admissions from the parties.
2007 in A.M. No. 07-9-12) Hearing shall be from day to day until
completed; same priority as petitions for writ of
The Return Shall Contain: habeas corpus. (Sec. 13, A.M. No. 07-9-12-SC)
1. Lawful defenses;
2. The steps or actions taken to determine the Hearing shall be set NOT LATER than seven (7)
fate or whereabouts of the aggrieved party; days from the issuance of the writ.
3. All relevant information in the possession of
the respondent pertaining to the threat, act or
omission against the aggrieved party; and
4. If the respondent is a public official or
employee, the return shall further state acts:

a) To verify identity of aggrieved party

b) To recover and preserve evidence
c) To identify and collect witness statements
d) To determine cause, manner, location,
and time of death or disappearance
e) To identify and apprehend persons
involved
f) Bring suspected offenders before a
competent court (Sec. 9, A.M. No. 07-9-
12-SC)
Judgment
The court shall render judgment within ten (10)
days from the time the petition is submitted for
decision. (Sec. 6, A.M. No. 07-9-12-SC)
Appeal
Any party may appeal from the final judgment or
order to the Supreme Court under Rule 45. The
appeal may raise questions of fact or law or
both. The period of appeal shall be five (5)
working days from the date of notice of the
adverse judgment. Appeal shall be given the
SAME priority as Habeas Corpus cases. (Sec.
19, A.M. No. 07-9-12-SC)

6. EFFECTS OF FAILURE TO FILE Archival of Cases

RETURN The court shall not dismiss the petition, but shall
archive it, if upon its determination it cannot
proceed for a valid cause such as the failure of
The Court or justice shall proceed to hear the petitioner or witnesses to appear due to threats
petition ex parte. (Sec. 12, A.M. No. 07-9-12-
on their lives. (Sec. 20, A.M. No. 07-9-12-SC)
SC)

7. OMNIBUS WAIVER RULE 9. INSTITUTION OF SEPARATE

ACTION
All defenses shall be raised in the return,
otherwise, they shall be deemed waived. (Sec.
10, A.M. No. 07-9-12-SC)

8. PROCEDURE FOR HEARING

The hearing shall be SUMMARY in nature.

However, the court, justice, or judge MAY call
for a preliminary conference to simplify the
issues and look at possibility of obtaining
This Rule shall NOT preclude the filing of
separate criminal, civil or administrative
actions. (Sec. 21, A.M. No. 07-9-12-SC)
It would be inappropriate to apply to amparo
proceedings the doctrine of command
responsibility as a form of criminal complicity
through omission, for individual respondents’
criminal liability, if there be any, is beyond the
reach of amparo. In other words, the Court
does not rule in such proceedings on any
issue of criminal culpability, even if incidentally
a crime or an infraction of an administrative
rule may have been committed. (Rubrico v.
Macapagal-Arroyo, G.R. No. 183871, 2010)
10. EFFECT OF FILING A CRIMINAL
ACTION
A separate petition for the Writ of Amparo
CANNOT be filed, but the remedies available
under the WRIT may be availed BY MOTION in
the criminal action. (Sec. 22, A.M. No. 07-9-12-
SC)
11. CONSOLIDATION
When a criminal action is filed subsequent to the
filing of a petition for the Writ, the latter shall be
consolidated with the criminal action.
When a criminal action and a separate civil
action are filed subsequent to a petition for a
Writ of Amparo, the latter shall be consolidated
with the criminal action. After consolidation, the
procedure under this Rule shall continue to
apply to the disposition of the reliefs in the
petition. (Sec. 23, A.M. No. 07-9-12-SC)
12. INTERIM RELIEFS AVAILABLE
TO PETITIONER AND
RESPONDENT
Upon Filing of the Petition OR Anytime
Before Final Judgment, the Court May Grant
Any of the Following Reliefs to PETITIONER
1. Temporary protection order – the court,
UPON MOTION or MOTU PROPRIO, may
order that the petitioner or the aggrieved
party and any member of the immediate
family be protected in a government agency
or by an accredited person or private
institution capable of keeping and securing
their safety.
2. Inspection order: the court, UPON MOTION
AND HEARING, may order any person in
possession or control of a designated
property to permit entry for inspecting
relevant objects/operations/ property.
3. Production order: the court, UPON
MOTION AND HEARING, may order any
person to produce and permit inspection of
documentary or object evidence (i.e.
documents, papers, accounts, etc.)
4. Witness protection order - The court,
justice or judge, UPON MOTION or MOTU
PROPRIO, may refer the witnesses to the
Department of Justice for admission to the
Witness Protection, Security and Benefit
Program, pursuant to Republic Act No. 6981.
(Sec. 14, A.M. No. 07-9-12-SC)
Availability of Interim Reliefs to
RESPONDENT:
Upon verified motion of the respondent and after
due hearing, the court, justice or judge may
issue an inspection order or production order.
(Sec. 15, A.M. No. 07-9-12-SC)
13. QUANTUM OF PROOF IN
APPLICATION FOR ISSUANCE
OF WRIT OF AMPARO
Quantum of Proof in Application for Issuance
of Writ of Amparo:
1. Establish claims by substantial evidence
2. If respondent is a private individual or entity,
he must prove that ordinary diligence was
observed in the performance of duty
3. If public official or employee, he must prove
that extraordinary diligence was observed in
the performance of duty. (Sec. 17, A.M. No.
07-9-12-SC)
Totality of evidence
The fair and proper rule is to consider all the
pieces of evidence adduced in their totality,
and to consider any evidence otherwise
inadmissible under our usual rules to be
admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce
our rules to the most basic test of reason—
i.e., to the relevance of the evidence to the
issue at hand and its consistency with all
other pieces of adduced evidence. Thus, even
hearsay evidence can be admitted if it satisfies
this basic minimum test. (Rodriguez v.
Macapagal-Arroyo, G.R. no. 191805, 2013)
END OF TOPIC
1. SCOPE AND AVAILABILITY OF
WRIT
The Writ of Habeas Data is a remedy available
to any person whose right to privacy in life,
liberty or security is violated or threatened by
an unlawful act or omission of a public official or
employee, or of a private individual or entity
engaged in the gathering, collecting or storing of
data or information regarding the person, family,
home and correspondence of the aggrieved
party. (Sec. 1, A.M. No. 08-1-16-SC)

It also involves the right to privacy in life, liberty

or security of the aggrieved party and covers
extralegal killings and enforced disappearances.
(Sec. 2, A.M. No. 08-1-16-SC)

2. DISTINGUISH FROM HABEAS

O. WRIT OF HABEAS CORPUS AND AMPARO
DATA (A.M. NO. 08-1-16-SC)
Note: See Annex A for the comparison of
Habeas Corpus, Habeas Data and Writ of
Amparo

1. SCOPE OF WRIT
2. AVAILABILITY OF WRIT
3. DISTINGUISH FROM HABEAS
CORPUS AND AMPARO
4. WHO MAY FILE
5. CONTENTS OF THE PETITION
6. CONTENTS OF RETURN
WHO MAY FILE
7. INSTANCES WHEN PETITION BE
HEARD IN CHAMBERS Any aggrieved party may file a petition for the
8. CONSOLIDATION Writ of Habeas Data. (Sec. 2, A.M. No. 08-1-16-
9. EFFECT OF FILING OF A SC)
CRIMINAL ACTION
10. INSTITUTION OF SEPARATE
ACTION
11. QUANTUM OF PROOF IN
APPLICATION FOR ISSUANCE
OF WRIT OF HABEAS DATA In Cases Of Extra-legal Killings And
Enforced Disappearances, The Petition
May Be Filed By (In Order of Preference):
1. Any member of the immediate family of the
aggrieved; or in default thereof,
2. Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth (4th) civil degree of consanguinity or
affinity. (Sec. 2, A.M. No. 08-1-16-SC)
Where Filed
1. Regional Trial Court - of the place where
petitioner or respondent resides, or that
which has jurisdiction over the place where
the data or information is gathered,
collected or stored at the option of the
petitioner; or
2. Supreme Court; or
3. Court of Appeals; or
4. Sandiganbayan – when the action concerns
public data files of government offices (Sec.
3, A.M. No. 08-1-16-SC)
When issued by the REGIONAL TRIAL COURT,
the writ shall be returnable to such court or
judge.
When issued by the Sandiganbayan or the Court
of Appeals, the writ shall be returnable such
court or justice, or to the Regional Trial Court of
the place where petitioner or respondent
resides, or that which has jurisdiction over the
place where the data or information is gathered,
collected or stored.
When issued by the Supreme Court, the writ
shall be returnable before such court or judge,
the Court of Appeals, the Sandiganbayan, or the
Regional Trial Court of the place where
petitioner or respondent resides, or that which
has jurisdiction over the place where the data or
information is gathered, collected or stored
The writ shall be enforceable ANYWHERE in the
Philippines. (Sec. 4, A.M. No. 08-1-16-SC)
No docket fees shall be paid by the indigent
petitioner. (Sec. 5, A.M. No. 08-1-16-SC)
3. CONTENTS OF THE PETITION
Verified And Written Petition Shall Contain:
1. Personal circumstances of petitioner and
respondent;
2. Manner the right to privacy is violated or
threatened and its effects;
3. Actions and recourses taken by the petitioner
to secure the data or information;
4. The location of files, registers, or databases,
the government office, and the person in
charge or control;
5. The reliefs prayed for;
6. Such other relevant reliefs as are just and
equitable. (Sec. 6, A.M. No. 08-1-16-SC)
Issuance of the Writ
Upon FILING of the petition, the court shall
immediately order the issuance of the writ if on
its face it ought to issue.
The Clerk of Court shall cause it to be SERVED
within three (3) days from the issuance.
The Writ shall set the date and time for
SUMMARY HEARING which shall NOT be later
than ten (10) work days from the date of its
issuance. (Sec. 7, A.M. No. 08-1-16-SC)
4. CONTENTS OF RETURN
The respondent shall file a verified written return
together with supporting affidavits within five (5)
working days from service of the writ. This
period MAY be extended by the court for
justifiable reasons.
The Return Shall Contain The Following:
1. Lawful defenses such as national security,
state secrets, privileged communications,
confidentiality of the source of information of
media and others;
2. In case of respondent in charge, in
possession or in control of the data or
information subject of the petition:
a) A disclosure of the data or information
about the petitioner, the nature of such
data or information, and the purpose for
its collection
b) The steps or actions taken by the
respondent to ensure the security and
confidentiality of the data or information
 c) The currency and accuracy of the data or 6. CONSOLIDATION
information held; and
When a criminal action is filed subsequent to the
filing of a petition for the writ, the latter shall be
consolidated with the criminal action.

When a criminal action and a separate civil

3. Other allegations relevant to the resolution of
the proceeding (Sec. 10, A.M. No. 08-1-16-
SC)
PROCEDURE FOR HEARING
The hearing shall be SUMMARY in nature.
However, the court, justice, or judge MAY call
for a preliminary conference to simplify the
issues and look at possibility of obtaining
stipulations and admissions from the parties.
(Sec. 15, A.M. No. 08-1-16-SC)
Judgment
The court shall render judgment within ten (10)
days from the time the petition is submitted for
decision.
Upon finality, the judgment shall be enforced by
the sheriff or any lawful officer within five (5)
working days. (Sec. 16, A.M. No. 08-1-16-SC)
Appeal
Any party may appeal from the final judgment or
order to the Supreme Court under Rule 45. The
appeal may raise questions of fact or law or
both. The period of appeal shall be five (5)
working days from the date of notice of the
adverse judgment or final order. Appeal shall be
given the SAME priority as Habeas Corpus and
Amparo cases. (Sec. 19, A.M. No. 08-1-16-SC)
5. INSTANCES WHEN PETITION IS
HEARD IN THE CHAMBERS
action are filed subsequent to a petition for a
Writ of Habeas Data, the latter shall be
consolidated with the criminal action. After
consolidation, the procedure under this Rule
shall continue to govern the disposition of the
reliefs in the petition.
7. EFFECT OF FILING A CRIMINAL
ACTION
When a criminal action has been commenced,
no separate petition for the writ shall be filed.
The relief under the writ shall be available to an
aggrieved party by motion in the criminal case.
(Sec. 22, A.M. No. 08-1-16-SC)
8. INSTITUTION OF SEPARATE
ACTION
The filing of a petition for the Writ of Habeas
Data shall NOT preclude the filing of separate
criminal, civil or administrative actions. (Sec. 20)
9. QUANTUM OF PROOF IN
APPLICATION FOR ISSUANCE
OF WRIT OF HABEAS DATA
SUBSTANTIAL evidence required to prove the
allegations in the petition. (Sec. 16, A.M. No. 08-
1-16-SC)
END OF TOPIC

A hearing in chambers may be conducted where

the respondent invokes the defense that the
release of the data or information in question
shall compromise national security or state
secrets, or when the data or information cannot
be divulged to the public due to its nature or
privileged character. (Sec. 12, A.M. No. 08-1-16-
SC)
 P. CHANGE OF NAME

1. Differences under Rule 103, R.A.

9048 and Rule 108
2. Grounds for change of name

1. DIFFERENCES UNDER RULE

103, R.A. 9048 AND RULE 108
 CHANGE OF CANCELLATION OR REPUBLIC ACT 9048
NAME CORRECTION OF
(RULE 103 ENTRIES IN THE CIVIL
REGISTRY (RULE 108)

RTC of the RTC of the province where the civil Local civil registry office of the
province where he registry is located city or municipality where the
resides, or in the record being sought to be
Venue City of Manila, to corrected or changed is kept; if
the Juvenile and impractical, it can be in the local
Domestic civil registrar where the party is
Relations Court presently residing or domiciled

Substantial Substantial changes and Clerical or typographical error in

changes in corrections of entries in the civil an entry and/or change of first
the name of a register (Regalado, p. 220) as to: name or nickname
person (a) birth;
(Regalado, (b) marriages;
Vol. II, p. 190) (c) deaths;
(d) legal separation;
(e) judgment of annulment of
marriage;
(f) judgments declaring marriages
Entries void from the beginning;
subject to (g) legitimation
change or (h) adoptions;
correction (i) acknowledgements of natural
children;
(j) naturalization;
(k) election, loss recovery of
citizenship;
(l) civil interdiction;
(m) judicial determination of
filiation;
(n) voluntary emancipation of a
minor; and
(o) changes of name

427
 Petition signed Verified petition Verified petition (form of an
and verified affidavit, subscribed and sworn to
Petition before any person authorized by
law to administer oaths)

To whom RTC judge RTC judge City or municipal civil registrar or

petition is consul general
presented

Copy of the order Notice of hearing given to persons Petition posted in conspicuous
for hearing shall named in the petition and place provided for that purpose
be published once published once a week for three for 10 consecutive days
a week for three (3) consecutive weeks in a
Notice and (3) successive newspaper of general circulation in
publication weeks in some the province
newspaper of
general circulation
published in the
province

Any interested Civil registrar or any interested  

person may person may file his opposition
appear at the within 15 days from notice of
Opposition hearing and petition, or from last date of
oppose the publication
petition

428
429
VENUE
Petition shall be filed in the Regional Trial Court of
the province where petitioner has been residing for
at least three (3) years prior to the date of such
filing.
CONTENTS OF PETITION
The Petition Shall be Signed AND Verified by
1. Person desiring his name changed; or
2. Some other person on his behalf. (Rule 103,
Section 2)
It Shall Contain The Following
1. That the petitioner has been a bona fide resident
of the province where the petition is filed for at
least three (3) years prior to the date of such
filing;
2. The cause for which the change of the
petitioner's name is sought;
3. The name asked for. (Rule 103, Section 2)
2. GROUNDS FOR CHANGE OF
NAME
Grounds for Change of Name
1. When the name is ridiculous, dishonorable, or
extremely difficult to write/pronounce.
2. Consequence of a change in status (e.g.
legitimation).
3. To avoid confusion.
4. Having continuously used and been known
since childhood by a Filipino name, unaware of
his/her alien parentage.
5. A sincere desire to adopt a Filipino name to
erase signs of former alienage, all in good faith
and without prejudicing anybody. (Republic v.
Coseteng-Magpayo, GR No. G.R. No. 189476,
2011)
PROCEDURE FOR CHANGE OF NAME
Order for Hearing
If the verified petition is sufficient in substance and
form, the court shall fix a date and place for a
HEARING by way of an order.
The ORDER shall be published for three (3)
successive weeks in some newspaper of general
circulation published in the province. (Rule 103,
Sec. 3)
Hearing
The date of the hearing shall NOT be within thirty
(30) days prior to an election nor within four (4)
months after the LAST publication of notice. (Rule
103, Section 3)
Opposition
ANY interested person may oppose. The Solicitor
General or the proper fiscal SHALL appear on
behalf of the Government. (Rule 103, Section 4)
Judgment
Upon satisfactory proof of compliance with the
publication requirement and that the allegations of
the petition are true, the court shall adjudge that the
name be changed. (Rule 103, Section 5)
A procedure for correction of entries can be
availed of to change the status from married to
430
single. Rule 108 cannot be availed of to determine
the validity of marriage, but the court cannot nullify
the proceedings before the trial court where all the
parties had been given the opportunity to contest
the allegations of respondent; the procedures were
followed, and all the evidence of the parties had
already been admitted and examined. If applicant
indeed sought, not the nullification of marriage as
there was no marriage to speak of, but the
correction of the record of such marriage to reflect
the truth as set forth by the evidence. Otherwise
stated, in allowing the correction of the subject
certificate of marriage by cancelling the wife portion
thereof, the trial court did not, in any way, declare
the marriage void as there was no marriage to
speak of. (Republic v. Olaybar, G.R. No. 189538,
2014)
END OF TOPIC
Q. ABSENTEES
1. PURPOSE OF THE RULE
2. WHO MAY FILE; WHEN TO FILE
ABSENTEES
1. PURPOSE OF THE RULE
The declaration of absence made according to Civil
Code has the sole purpose of enabling the taking of
necessary precautions for the administration of the
absentee’s estate. It also aims to have the court
appoint the present spouse as administrator or
administratrix of the absent spouse’s properties, or
for the separation of properties of the spouses.
Rule 107 is proper only where the absentee has
properties to be administered. (Jones v. Hortiguela,
G.R. No. L-43701, 1937; IN RE: Declaration of
Absence of Robert Reyes, G.R. No. L-32026, 1986)
APPOINTMENT OF REPRESENTATIVE
A Petition for the Appointment of a
Representative May be Filed When
1. A person disappears from his domicile, his
whereabouts being unknown, and without
having left an agent to administer his property;
or
2. There exists an agent for the absentee but his
power has expired. (Rule 107, Section 1)
Where Filed
In the Regional Trial Court of the place where the
ABSENTEE resided before his disappearance.
(Rule 107, Section 1)
2. WHO MAY FILE; WHEN TO FILE
Who May Petition for a Declaration of Absence
and Appointment of Administrator?
1. Spouse present;
2. Heirs instituted in a will;
3. Relatives who will succeed by intestacy;
4. Those who have some right subordinated to the
condition of his death over the absentee’s
property. (Rule 107, Sec. 2)
Note: Declaration of absence is different from a
petition for the declaration of presumptive death of
an absentee spouse. The latter is a summary
proceeding, not a special proceeding. (Republic v.
CA, G.R. No. 163604, 2005)
When to Petition (based on Section 2, Rule 107
of the Rules of Court and Art. 384 of the Civil
Code)
431
1. After two (2) years: The SPOUSE PRESENT shall be preferred when
there is no legal separation.

If the absentee left no spouse, or if the spouse

a) From the disappearance and without any
news about the absentee; or
b) Since the receipt of the last news about him;
2. After five (5) years, if he left an administrator of
his property. (Rule 107, Section 2)
HEARING
present is a minor or otherwise incompetent, ANY
COMPETENT person may be appointed by the
court. (Rule 107, Section 7)
TERMINATION OF ADMINISTRATION
Administration of the Property of the Absentee Shall
Cease UPON ORDER in the Following Cases
1. When the absentee appears personally or by
means of an agent;
2. When the death of the absentee is proved and
his testate or intestate heirs appear;
3. When a third person appears, showing by a
proper document that he has acquired the
absentee's property by purchase or other title.
(Rule 107, Section 8)

Copies of the notice of the time and place fixed for END OF TOPIC
hearing shall be SERVED upon the known heirs,
legatees, devisees, creditors and other interested
persons at least ten (10) days BEFORE the day of
the hearing.

The notice shall be PUBLISHED once a week for

three (3) consecutive weeks prior to the time
designated for the hearing in a newspaper of
general circulation in the province/city where the
absentee resides. (Rule 107, Section 4)
R. CANCELLATION OR
These requisites MUST be complied with, and such
compliance must be shown at the hearing before
CORRECTION OF
the court shall decide on the same. (Rule 107, ENTRIES IN THE CIVIL
Section 6) REGISTRY
Opposition
(Rule 108)
ANYONE may file a written opposition with the
grounds stated therein. It must be served on the
petitioner on or before the date of the hearing. (Rule
107, Section 5)

Effectivity of Declaration
In case of declaration of absence, it shall NOT take
effect until six (6) months AFTER its publication in a
newspaper of general circulation. (Rule 107,
1. ENTRIES SUBJECT TO
Section 6) CANCELLATION OR CORRECTION
UNDER RULE 108, IN RELATION TO
WHO MAY BE APPOINTED R.A. 9048
2. GROUNDS FOR CHANGE OF NAME

432
FILING OF PETITION
PROCEDURE FOR CANCELLATION OR
Who May File CORRECTION OF ENTRIES IN THE CIVIL
ANY person interested in any act, event, order or REGISTRY
decree concerning the CIVIL STATUS of persons
which had been recorded in the civil register MAY
file a VERIFIED PETITION for the cancellation or
correction of any entry relating thereto. (Rule 108,
Section 1)

Where Filed
The petition shall be filed with the REGIONAL
TRIAL COURT of the province where the
corresponding civil registry is located. (Rule 108,
Section 1)

1. ENTRIES SUBJECT TO
Parties to the Proceeding
CANCELLATION OR CORRECTION The Civil Registrar AND all interested persons shall
UNDER RULE 108, IN RELATION be made parties to the proceeding. (Rule 108,
TO R.A. 9408 Section 3)

Notice and Publication

Persons named in the petition must be given
NOTICE of the time and place set for hearing the
petition. Such order must also be PUBLISHED once
a week for three (3) consecutive weeks in a
newspaper of general circulation in the province.
(Rule 108, Section 4)

GR: Notice and publication is mandatory.

Exception: There is substantial compliance when
there is publication. It may be deemed sufficient
notice that vests jurisdiction with the court because
Upon Good and Valid grounds, the Following an action to correct and cancel entries is an action
Entries in the Civil register May be Cancelled or in rem. (Republic v. Kho G.R. No. 170340, 2007)
Corrected
Births; Opposition
Marriage; The Civil Registrar AND any interested person MAY
Deaths; file his opposition within fifteen (15) days from
Legal separations; notice of the petition. (Rule 108, Section 5)
Judgments of annulments of marriage;
Judgments declaring marriages void from the Judgment
beginning; After hearing, the court may dismiss the petition or
Legitimations; issue an order granting the cancellation or
Adoptions; correction of entry,
Acknowledgments of natural children;
Naturalization; A certified copy of the judgment shall be served
Election, loss or recovery of citizenship; upon the Civil Registrar who shall ANNOTATE the
Civil interdiction; same in his record. within fifteen (15) days from
Judicial determination of filiation; notice of the petition. (Rule 108, Section 7)
Voluntary emancipation of a minor; and
Changes of name. (Rule 108, Section 2)

433
In Republic v. Cagandahan, the court allowed
change of gender and name to conform to the
preference of the petitioner because he had a
biological condition known as congenital adrenal
hyperplasia that causes ambiguous genitalia and
male/female characteristics. In this situation, the
determining factor in his gender classification would
be what the individual, like respondent, having
reached the age of majority, with good reason
thinks of his/her sex. (Republic v. Cagandahan,
G.R. No. 166676, 2008)
END OF TOPIC
S. APPEALS IN SPECIAL
PROCEEDINGS
1. JUDGMENTS AND ORDERS FOR
WHICH APPEAL MAY BE TAKEN
2. WHEN TO APPEAL
3. MODES OF APPEAL
4. RULE ON ADVANCE DISTRIBUTION
1. JUDGMENTS AND ORDERS FOR
WHICH APPEAL MAY BE TAKEN
ANY interested person may appeal in special
proceedings when such order or judgment
1. Allows or disallows a will;
2. Determines who are the lawful heirs of a
deceased person, or the distributive share of the
estate to which such person is entitled;
3. Allows or disallows, in whole or in part, any
claim against the estate of a deceased person,
or any claim presented on behalf of the estate in
offset to a claim against it;
4. Settles the account of an executor,
administrator, trustee or guardian;
5. Constitutes, in proceedings relating to the
settlement of the estate of a deceased person,
or the administration of a trustee or guardian, a
final determination in the lower court of the rights
of the party appealing, except that no appeal
shall be allowed from the appointment of a
special administrator; and
6. Is the final order or judgment rendered in the
case, and affects the substantial rights of the
person appealing unless it be an order granting
or denying a motion for a new trial or for
reconsideration.
2. WHEN TO APPEAL
In special proceedings, the period of appeal is thirty
(30) days, a notice of appeal AND a record on
appeal being required. The appeal period MAY BE
INTERRUPTED by the filing of a Motion for
Reconsideration/Motion New Trial. Once the appeal
period expires without an appeal/Motion for
Reconsideration/Motion New Trial, the order
becomes final. (Testate Estate of Biascan v.
Biascan, G.R. No. 138731, 2000)
Appeal period in Habeas corpus,
habeas data, amparo –
Appeal Period
Habeas Habeas Data Writ of Amparo
Corpus
434
48 hours/2 5 working days 5 working days
days from from the date from the date 4. RULE ON ADVANCE
notice of of notice of of notice of DISTRIBUTION
judgment judgment or judgment or
appealed from. final order final order
Notwithstanding a pending controversy or appeal in
proceedings to settle the estate of a decedent, the
However, note
court may, in its discretion and upon such terms
that in Hui v.
as it may deem proper and just, permit that such
Rodriguez,
part of the estate as may NOT be affected by the
G.R. No.
controversy or appeal be distributed among the
137571,
heirs or legatees upon compliance with the
September 21,
conditions set forth in Rule 90 of these rules. (Rule
2000, the
109, Section 2)
Court said that
the period for
END OF TOPIC
appeal is 15
days.

3. MODES OF APPEAL

While under the concept in ordinary civil actions

some of the orders stated in Section 1 may be
considered interlocutory, the nature of special
proceedings declares them as appealable orders,
as exceptions to the provisions of Section, Rule 41.

1. Ordinary appeal – The appeal to the CA in

cases decided by the RTC 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 the Rules
so require. In such cases, the record on appeal
shall be filed and served in like manner.
2. Petition for review – The appeal to the CA in
cases decided by the RTC in the exercise of its
appellate jurisdiction shall be by petition for
review in accordance with Rule 42.
3. Petition for review on certiorari – in all cases
where only questions of law are raised or
involved, the appeal shall be to the SC by
petition for review on certiorari in accordance
with Rule 45.

435
 1. Rule on implied institution of
civil action with criminal action
2. When civil action may proceed
independently
3. When separate civil action is
suspended
CRIMINAL PROCEDURE 4. Effect of the death of accused or
convict on civil action
5. Prejudicial question
6. Rule on filing fees in civil action
deemed instituted with the
A. GENERAL MATTERS criminal action
1. Distinguish jurisdiction over
subject matter from jurisdiction
over person of the accused
2. Requisites for exercise of
criminal jurisdiction D. PRELIMINARY INVESTIGATION
3. Jurisdiction of criminal courts 1. Nature of right
4. When injunction may be issued 2. Purposes of preliminary
to restrain criminal prosecution investigation
3. Who may conduct determination
of existence of probable cause
4. Resolution of investigation
prosecutor
5. Review
6. When warrant of arrest may
B. PROSECUTION OF CRIMINAL issue
7. Cases not requiring a
OFFENSES
preliminary investigation
1. Criminal actions, how instituted
8. Remedies of accused if there
2. Who may file them, crimes that
was no preliminary investigation
cannot be prosecuted de oficio
9. Inquest
3. Criminal actions, when enjoined
4. Control of prosecution
5. Sufficiency of complaint or
information
6. Designation of offense E. ARREST
7. Cause of the accusation 1. Arrest, how made
8. Duplicity of the offense; 2. Arrest without warrant, when
exception lawful
9. Amendment or substitution of 3. Method of arrest
complaint or information 4. Requisites of a valid warrant of
10. Venue of criminal actions arrest
11. Intervention of offended party a. By officer with warrant
b. By officer without warrant
c. By Private person
5. Determination of probable cause
for issuance of warrant of arrest
C. PROSECUTION OF CIVIL
ACTION

436
 6. Distinguish probable cause of
fiscal from that of a judge
F. BAIL
1. Nature
2. When a matter of right;
exceptions
3. When a matter of discretion
4. Hearing of application for bail in
capital offenses
5. Guidelines in fixing amount of
bail
6. Bail when not required
7. Increase or reduction of bail
8. Forfeiture and cancellation of
bail
9. Application not a bar to
objections in illegal arrest, lack
of or irregular preliminary
investigation
10. Hold departure order & Bureau
of Immigration watch list
G. RIGHTS OF THE ACCUSED
1. Rights of the accused at the trial
2. Rights of persons under
custodial investigation
H. ARRAIGNMENT AND PLEA
1. Arraignment and plea, how
made
2. When should plea of not guilty
be entered
3. When may accused enter a plea
of guilty to a lesser offense
4. Accused plead guilty to capital
offense, what the court should
do
5. Searching inquiry
6. Improvident plea
7. Grounds for suspension of
arraignment
I. MOTION TO QUASH
1. Grounds
2. Distinguish from demurrer to
evidence
3. Effects of sustaining the motion
to quash
4. Exception to the rule that
sustaining the motion is not a
bar to another prosecution
5. Double jeopardy
6. Provisional dismissal
J. PRE-TRIAL
1. Matters to be considered during
pre-trial
2. What the court should do when
prosecution and offended party
agree to the plea offered by the
accused
3. Pre-trial agreement
4. Non-appearance during pre-trial
5. Pre-trial order
6. Referral of some cases for court
annexed mediation and judicial
dispute resolution
K. TRIAL
1. Instances when presence of
accused is required by law
2. Requisite before trial can be
suspended on account of
absence of witness
3. Trial in absentia
4. Remedy when accused is not
brought to trial within the
prescribed period
437
 5. Requisites for discharge of
accused to become a state
witness
6. Effects of discharge of accused
as state witness
7. Demurrer to evidence
L. JUDGMENT
1. Requisites of a judgment
2. Contents of judgment
3. Promulgation of judgment;
instances of promulgation of
judgment in absentia
4. When does judgment become
final (four instances)
M. NEW TRIAL OR
RECONSIDERATION
1. Grounds for new trial
2. Grounds for reconsideration
3. Requisites before a new trial
may be granted on ground of
newly discovered evidence
4. Effects of granting a new trial or
reconsideration
5. Application of Neypes doctrine
in criminal cases
O. SEARCH AND SEIZURE
1. Nature of search warrant
2. Distinguish from warrant of
arrest
3. Application for search warrant,
where filed
4. Probable cause
5. Personal examination by judge
of the applicant and witnesses
6. Particularity of place to be
searched and things to be
seized
7. Personal property to be seized
8. Exceptions to search warrant
requirement
a. Search incidental to lawful arrest
b. Consented search
c. Search of moving vehicle
d. Check points; body checks in
airport
e. Plain view situation
f. Stop and frisk situation
g. Enforcement of custom laws
h. Remedies from unlawful search
and seizure
P. PROVISIONAL REMEDIES
1. Nature
2. Kinds of provisional remedies

N. APPEAL
1. Effect of an appeal
2. Where to appeal
3. How appeal taken A. GENERAL MATTERS
4. Effect of appeal by any of
several accused
5. Grounds for dismissal of appeal

438
1. DISTINGUISH JURISDICTION OVER 4. WHEN INJUNCTION MAY BE
SUBJECT MATTER FROM ISSUED TO RESTRAIN CRIMINAL
JURISDICTION OVER PERSON OF PROSECUTION
THE ACCUSED
2. REQUISITES FOR EXERCISE OF
CRIMINAL JURISDICTION

a. Jurisdiction over the Subject Matter

b. Jurisdiction over the Territory
c. Jurisdiction over the person of the
accused

CRIMINAL PROCEDURE – it is the method

prescribed by law for the apprehension and
prosecution of persons accused of any criminal
offense and for their punishment, in case of
conviction.
3. JURISDICTION OF CRIMINAL
It is a branch of remedial law concerned with the
COURTS procedural steps through which a criminal case
passes, commencing with the initial investigation of
a crime and concluding with the unconditional
release of the offender. It is the generic term used
to describe the network of laws and rules which
govern the procedural administration of criminal
justice.
a. Criminal Jurisdiction of the MTC and
RTC Whereas civil procedure is that branch of remedial
law concerned with civil rights and redress of
private wrongs not amounting to crime.
i.Jurisdiction is based on violations
committed and penalty imposed.
ii. Jurisdiction where fine is the only
penalty
iii. Jurisdiction over BP 22 Cases
iv. Jurisdiction over Libel Cases
v. Jurisdiction over Dangerous Drugs
Act Cases CRIMINAL LAW CRIMINAL
vi. Jurisdiction over Complex Crimes PROCEDURE
vii. Jurisdiction over Continuing
Crimes
viii. Jurisdiction over Crimes
Punishable By Destierro
ix. Jurisdiction of Family Courts
x. Jurisdiction in illegal recruitment
cases Substantive Remedial or
xi. Jurisdiction in trafficking in
persons cases
b. Jurisdiction of the Sandiganbayan

439
 Procedural

It declares what acts It provides how the act JURISDICTION OVER JURISDICTION OVER
are punishable is to be punished SUBJECT MATTER THE PERSON OF
THE ACCUSED

It defines crimes, It provides for the

treats for their nature method by which a Derived from the law Acquired either by his
and provides for their person accused of a arrest or his voluntary
punishment crime is arrested, tried, appearance in court.
and punished

It can never be May be acquired by

acquired solely by consent of the
JURISDICTION – power or authority given by the consent of the accused accused or by waiver
law to a court or tribunal to hear and determine of objections or failure
certain controversies. It is the power of courts to to invoke the objection
hear and determine a controversy involving rights
which are demandable.

CRIMINAL JURISDICTION – power of a State to

try and punish a person for a violation of its penal
laws. (People v. Mariano, G.R. No. L-40527, 1976)
Objection that the If he fails to make his
Liberal Construction of the rules of procedure
court has no objection in time, he
The rules of criminal procedure shall be liberally
jurisdiction over the will be deemed to
construed in favor of the accused and strictly
subject matter may be have waived it.
against the State to even the odds in favor of the
made at any stage of
accused against whom the entire machinery of the
the proceeding and the
State is mobilized. It is construed as a legal
right to make such
safeguard in furtherance of the rights of the
objection is never
accused.
waived, even on
appeal.
Retroactive effect of the Rules on Criminal
Procedure
Rules of criminal procedure are given retroactive
application in so far they benefit the accused.

1. JURISDICTION OVER SUBJECT

MATTER VS. JURISDICTION OVER
THE PERSON OF THE ACCUSED

440

2. REQUISITES FOR EXERCISE OF
CRIMINAL JURISDICTION
1. Jurisdiction over the Subject Matter – The
offense by virtue of the imposable penalty or its
nature is one which the court is by law authorized to
resolve.
2. Jurisdiction over the Territory – The offense
must have been committed or any of its essential
ingredients took place within the territorial
jurisdiction of the court. It cannot be waived as
venue is jurisdictional.
Exception/s:
a) Where the offense was committed under
the exceptional circumstances provided for
in Article 2 of the Revised Penal Code
b) In cases of piracy
c) Where an offense is committed on a
railroad train, in an aircraft, or in any other
public or private vehicle while in the course
of its trip, the criminal action may be
instituted and tried in the court of any
municipality or territory where such train,
aircraft or other vehicle passed during
such trip, including the place of departure
and arrival
d) Where an offense is committed on board a
vessel in the course of its voyage, the
criminal action may be instituted and tried
in the proper court of the first port of entry
or of any municipality or territory through
which the vessel passed during such
voyage subject to the generally accepted
principles of international law
e) In those cases where the Supreme Court,
in the interest of truth and impartial justice,
transfers the place of trial from one place
to another.
f) In cases of written defamation (RA. 4363)
g) In cases of illegal recruitment, the criminal
action can be filed in the Regional Trial
Court of the province or city where the
crime was committed or where the
offended party actually resides at the time
the offense was committed (R.A. 10022,
Rule IV, § 6).
h) Trafficking in persons, criminal action shall
be filed where the offense was committed,
or where any of its elements occurred, or
where the trafficked person actually
resides at the time of the commission of
the offense (R.A. 9208, § 9).
These exceptions may be filed in any
competent court to the exclusion of others.
3. Jurisdiction over the person of the accused –
The person charged with the offense must have
been brought to the court’s presence for trial,
forcibly by warrant of arrest or upon his voluntary
submission to the court.
General Rule: Lack of jurisdiction may be raised at
any stage of the proceedings, in the trial court or on
appeal. (US v. de la Santa, G.R. No. L-3181, 1907)
Exception: Where there has been estoppel by
laches on the party who raised the question
(Tijam v. Sibonghanoy, G.R. No. L-214530,
1968).
The exception is only applicable in civil cases.
441

The operation of estoppel on the question of
jurisdiction seemingly depends on whether the
lower court actually had jurisdiction or not. If it had
no jurisdiction, but the case was tried and decided
upon the theory that it had jurisdiction, the parties
are not barred, on appeal, from assailing such
jurisdiction, for the same “must exist as a matter of
law, and may not be conferred by the consent of the
parties or by estoppel.”
However, if the lower court had jurisdiction, and the
case was heard and decided upon a given theory,
such as for instance as the court had no jurisdiction,
the party who induced it to adopt such theory will
not be permitted, on appeal, to assume an
inconsistent position that the lower court had
jurisdiction. (Lozon v. NLRC, G.R. No. 107660,
1995)
Determination of Criminal Jurisdiction (NPAL)
1. Determined by the nature of the offense and/or
penalty attached thereto and not what may be
meted out after trial but by the extent of the
penalty which the law imposes for the offense.
It is the imposable penalty over the lower
penalty that might be adjudged. (People v.
Purisima G.R. No. L-40902, 1976)
2. Determined by the allegations in the complaint
or information, not by the result of proof or by
the trial court’s appreciation of the evidence
presented. It is also not determined by the
caption or charges in the complaint.
3. Determined by the law in force at the time of
the institution of the criminal action (when the
action is filed) and not at the time of the
commission of the offense. (De la Cruz v.
Moya, G.R. No. L-65192, 1988)
Principle of Adherence of Jurisdiction
Once jurisdiction is vested in the court, it is retained
up to the end of litigation. It remains with the court
until the case is finally terminated. (Dela Cruz v.
Moya, G.R. No. L-65192, 1988)
Once vested, jurisdiction cannot be withdrawn
by:
1. Subsequent amendment or stipulation (People
v. Chupeco, G.R. No. 19568, 1964)or;
2. Subsequent statutory amendment of the rules
of jurisdiction, unless the amendatory law
expressly provides otherwise or is construed
that it is intended to operate to actions pending
before its amendment, in which case, the court
where the action is pending is ousted of
jurisdiction and the pending action will have to
be transferred to the court having jurisdiction by
virtue of the amendatory law (Binay v.
Sandiganbayan, G.R. No. 120011, 1999)
Jurisdiction is retained regardless of:
1. Whether the evidence proves a less offense
that that charged in the information
2. The subsequent happening of events, although
of a character which would have prevented
jurisdiction from attaching in the first instance.
3. JURISDICTION OF CRIMINAL
COURTS
a) Criminal jurisdiction of the MTC and RTC
Jurisdiction is based on violations committed
and penalty imposed.
1. Municipal Trial Court
a) all violations of city or municipal
ordinances committed within their
respective territorial jurisdictions;
b) all offenses (except violations of RA 3019
and Arts. 210 to 212 of RPC) committed by
public officers and employees in relation to
their office, including those employed in
GOCCs and by private individuals charged
as co-principals, accomplices or
accessories, punishable with imprisonment
of not more than 6 years or where none of
the accused holds a position classified as
Grade “27” and higher;
c) all offenses punishable with imprisonment
of not more than 6 years irrespective of the
amount of fine (prision correccional);
d) in all cases of damage to property through
criminal negligence, regardless of other
penalties and the civil liabilities arising
therefrom;
e) for summary procedure, it includes traffic
violations, violations of the rental law,
violations of city or municipal ordinances,
violations of BP 22, and all other offenses
442
 where the penalty does not exceed 6
months imprisonment and/or P1,000 fine,
irrespective of other penalties or civil
liabilities arising therefrom, and in offenses
involving damage to property through
criminal negligence where the imposable
fine does not exceed P10,000.
3. Regional Trial Court –
The Regional Trial Court shall have jurisdiction
over all criminal cases which are not within the
exclusive jurisdiction of any court, tribunal or
body and appeals from all cases decided by
lower courts in their respective territorial
jurisdiction
Jurisdiction where fine is the only penalty
1.Municipal Trial Court – P4,000 or less
2.Regional Trial Court – MORE than P4,000
EXCEPT in cases of criminal negligence involving
damage to property which fall under the
EXCLUSIVE original jurisdiction of the Municipal
Trial Court
Municipal Trial Courts have no jurisdiction over
cases which by provision of special law are to be
heard before the Regional Trial Courts or the
Sandiganbayan, even if the maximum penalty
prescribed by such special law is less than 6 years.
Included in such exceptions are election offenses,
libel or written defamation, and violation of Section
39 of the Dangerous Drugs Act of 1972 (R.A. No.
6425).
Jurisdiction over BP 22 Cases
The rules on summary procedure in Metropolitan
Trial Courts, the Municipal Trial Courts in Cities,
Municipal Trial Courts, and the Municipal Circuit
Trial Courts for violations of Batas Pambansa
Bilang 22 (Bouncing Checks Law)(A. M. No. 00-11-
01-SC)
Jurisdiction over Libel Cases
Libel cases are within the exclusive jurisdiction of
the RTC. R.A. No. 7691 (Sec. 32 [2]), excludes from
its application cases falling within the exclusive
original jurisdiction of the Regional Trial Courts
(People v. MTC of Quezon City, G.R. No. 123263,
1996). Administrative Order No. 104-96, 1996,
designated the RTC as a special court having
jurisdiction in libel cases.
Where the offense is written defamation, the
criminal action need not necessarily be filed in the
court of the place where the alleged libelous article
was printed and first published. It may be filed in the
place where the offended party held office at the
time of the commission of the offense, if he is a
public officer, or in the place where he actually
resided at the time of the commission of the
offense, in case the offended party is a private
individual.
Jurisdiction over Dangerous Drugs Act Cases
Regardless of its penalty, the jurisdiction falls within
the Regional Trial Court designated as Drugs
Court. (People v. Morales, G.R. No. 126623, 1997)
If the case involves a minor, the jurisdiction lies with
the Family Courts. (R.A. 8369, §5)
Jurisdiction over Complex Crimes
Jurisdiction over the whole complex crime is lodged
with the trial court having jurisdiction to impose the
MAXIMUM and MOST SERIOUS penalty imposable
of an offense forming part of the complex crime. It
must be prosecuted integrally and must not be
divided into component offenses, which may be
made subject of multiple information brought in
different courts. (Cuyos v. Garcia, G.R. No. L-
46934, 1988)
Jurisdiction over Continuing Crimes
Continuing offenses are consummated in one place
yet by the nature of the offense, the violation of the
law is deemed continuing (e.g. estafa and libel). As
such, the courts of the territories where the
ESSENTIAL INGREDIENTS of the crime took place
have concurrent jurisdiction.
443
The court which FIRST acquires jurisdiction
excludes the other courts.
Jurisdiction in Crimes involving Moving
Vehicles
1. 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
[Rule 110, Sec. 15 (b)].
2. 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 [Rule 110, Sec.
15 (c)].
Jurisdiction over Crimes Punishable By
Destierro
Where the imposable penalty is destierro, the case
falls within the EXCLUSIVE jurisdiction of the
Municipal Trial Court, considering that in the
hierarchy of penalties under Article 71 of the
Revised Penal Code, destierro follows arresto
mayor which involves imprisonment. (People v.
Eduarte, G.R. No. 88232, 1990)
Jurisdiction of Family Courts
R.A. No. 8369 establishing the Family Court
granting it exclusive jurisdiction over child and
family cases names: criminal cases where one or
more of the accused is below 18 years of age but
not less than 9 years of age or where one or more
of the victim is a minor at the time of the
commission of the offense, provided that if the
minor is found guilty, the court shall promulgate
sentence and ascertain any civil liability which the
accused may have incurred. (The sentence shall be
suspended without need of an application pursuant
to the “Child and Youth Welfare Code”). The
jurisdiction depends on the parties not the penalty.
(P.D. 603; See R.A. No. 10630)
If the minor involved in the case is already dead, the
regular courts will have jurisdiction over the case.
(People v. Yadao, G.R. No. 162144-54, 2012).
b) Jurisdiction of the Sandiganbayan
Exclusive Original Jurisdiction in All Cases
Involving:
1. Violations of R.A. No. 3019 as amended (Anti-
Graft and Corrupt Practices Act)
2. Violations of R.A. No. 1379 (An Act Declaring
Forfeiture in favor of the state any property
found to have been unlawfully acquired by
Public Officer or Employee and providing for
the procedure therefore, which prescribes the
penalties for violation thereof)
3. Other offenses or felonies whether simple or
complexed with other crimes committed by
public officials and employees mentioned in
Section 4(a) P.D. No. 1606 as amended by
R.A. 7975 in relation to their office
4. Crimes mentioned in Chapter 2 Section 2 Title
VII Book 2 of the Revised Penal Code (i.e.
Art.210: Bribery, Art.211: Indirect Bribery, Art.
212: corruption of Public Officials)
The Offense is “in relation to the office” when:
1. The offense is intimately connected with the
office of the offender and perpetrated while he
was in the performance of his official functions
2. The crime cannot exist without the office
3. The office is a constituent element of the crime
as defined in the statute
If the character of being “in relation to his
office” is absent or is not alleged in the
information, the crime committed falls within the
exclusive original jurisdiction of ordinary courts and
not the Sandiganbayan.
Officials under the Exclusive Jurisdiction of the
Sandiganbayan:
1. Those EXPRESSLY enumerated in P.D. No.
1606 as amended by R.A. No. 8249, Violations
of R.A. No. 3019 (Anti-Graft and Corrupt
Practices Act), R.A. No. 1379 and Chapter 2,
Section, 2, Title VII, Book 2 of the Revised
Penal Code.
2. Officials of the EXECUTIVE branch, occupying
SALARY GRADE 27 or higher, specifically
including:
444
 a. Provincial Governors, Vice Governors, members per division. Moreover, it expanded the
Members of the jurisdiction of the Sandiganbayan which now
SangguniangPanlalawigan, and includes—
ProvincialTreasurers, Assessors,
Engineers and other 8. Civil and criminal cases filed pursuant to and in
ProvincialDepartment Heads connection with Executive Order Nos. 1, 2, 14
b. City Mayors, Vice Mayors, Members and 14-A, issued in 1986
of the SangguniangPanlungsod and Exception/s:
City Treasurers, Assessors, Engineers
and other ProvincialDepartment
Heads
c. Officials of the diplomatic service
occupying the position of consul and
higher
d. Philippine Army and Air Force 1. Election offenses – jurisdiction falls under
Colonels, Naval Captains and all the Regional Trial Court as provided for in
officers of higher rank the Omnibus Election Code even if they
e. Officers of the PNP, while occupying are committed by public officers classified
the position of provincial director and as Grade 27 and higher and in relation to
those holding the rank of senior their offices
superintended or higher 2. Court Martial cases – offenses committed
f. City and ProvincialProsecutors and by members of the Armed Forces and
their assistants, and officials and other persons subject to military law are
prosecutors in the Office of the cognizable by court martial if such
Ombudsman and special prosecutors offenses are “service connected” as
g. President/ Directors/ Trustees/ expressly enumerated in R.A. No. 7055. If
Managers of GOCCs, state the particular offense is not one of those
universities, or educational enumerated in the law, the case falls under
institutions/foundations either the regular courts or the
Sandiganbayan, as the case may be.
3. That the Regional Trial Court shall have
exclusive original jurisdiction where the
information:
(a) does not allege any damage to the
government or any bribery; or
3. Members of the CONGRESS and officials (b) alleges damage to the government or
thereof classified as Grade 27 and up bribery arising from the same or closely
4. Members of the JUDICIARY without prejudice related transactions or acts in an amount
to Constitutional provisions not exceeding One million pesos
5. Chairmen and members of CONSTITUTIONAL (P1,000,000.00) (R.A. No. 10660).
COMMISSIONS without prejudice to
Constitutional provisions
6. All other national and local officials classified as
Grade ’27’ and higher under the Compensation
and Position Classification Act of 1989.
7. Other offenses or felonies whether simple or
complexed with other crimes committed by the
public officials and employees mentioned in
subsection a. of this section in relation to their
office.

Note: REPUBLIC ACT 10660 otherwise known as Note: The civil case initiated first will be suspended
Act Strengthening Further for Functional and when a criminal case is filed in the Sandiganbayan
Structural Organization of the Sandiganbayan,
increased the number of divisions from five to
seven divisions which are still composed of 3

445
 2. WHO MAY FILE THEM, CRIMES
THAT CANNOT BE PROSECUTED
DE OFICIO
3. CRIMINAL ACTIONS, WHEN
4. WHEN INJUCTION MAY BE ISSUED ENJOINED
TO RESTRAIN CRIMINAL 4. CONTROL OF PROSECUTION
PROSECUTION a. Full discretion and control of
Prosecutor
Writs of injunction or prohibition to restrain a b. Private Prosecutor participation
criminal prosecution are generally NOT c. Prosecution of private crimes
available, EXCEPT: 5. SUFFICIENCY OF COMPLAINT OR
1. To afford adequate protection to the INFORMATION
constitutional rights of the accused 6. DESIGNATION OF OFFENSE
2. When necessary for the orderly administration
of justice or to avoid oppression or multiplicity
7. CAUSE OF THE ACCUSATION
of actions 8. DUPLICITY OF THE OFFENSE;
3. When there is a prejudicial question which is EXCEPTION
sub judice 9. AMENDMENT OR SUBSTITUTION
4. When the acts of the officer are without or in OF COMPLAINT OR INFORMATION
excess of authority
a. Kinds of amendment
5. Where the prosecution is under an invalid law,
i. Before the accused enters his plea
ordinance or regulation
ii. After plea
6. When double jeopardy is clearly apparent
b. Substitution of the Complaint or
7. Where the court has no jurisdiction over the
Information
offense
i. Before plea
8. Where it is a case of persecution rather than
ii. Anytime before judgment
prosecution
9. Where the charges are manifestly false and 10. VENUE OF CRIMINAL ACTIONS
motivated by the lust for vengeance 11. INTERVENTION OF THE OFFENDED
10. When there is clearly no prima facie case PARTY IN CRIMINAL ACTION
against the accused and the motion to quash
on that ground has been denied.
1. CRIMINAL ACTIONS, HOW
INSTITUTED
CRIMINAL ACTION – one by which the State
Note: Preliminary injunction has been issued by the
prosecutes a person for an act or omission
Supreme Court to prevent the threatened unlawful
punishable by law.
arrest of petitioners (Lopez v. de la Cruz, G.R. No.
L-6229, March 11, 1954)
For Offenses Where a Preliminary Investigation
is required: Instituted by filing the complaint with
END OF TOPIC
the proper officer for preliminary investigation
Refers to a complaint-affidavit, and is different from
the complaint defined in Section 3 of Rule 110,
Rules of Court

Preliminary investigation is required for offenses

where the penalty prescribed by law is AT LEAST 4
B. PROSECUTION OF CRIMINAL years, 2 months and 1 day (prision correccional
OFFENSES max) of imprisonment without regard to the fine.
(Rule 112, Section 1(2))

For all other offenses: Instituted DIRECTLY with

the Municipal Trial Court and Municipal Circuit Trial

1. CRIMINAL ACTIONS, HOW

INSTITUTED

446
Court or the complaint is filed 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 their charters.
A complaint for offenses cognizable by the Regional
Trial Court is NOT filed directly with the Regional
Trial Court either for purposes of preliminary
investigation or for commencement of the criminal
prosecution.
For offenses where preliminary investigation is not
required, for criminal offenses in Metro Manila or
chartered cities, the complaint must be filed with the
Office of the Prosecutor. In contrast, for criminal
offenses outside Metro Manila, the
complaint/information must be filed with the
provincial prosecutor or Municipal Trial Courts.
Effect of Institution of Criminal Action
General Rule: The institution of the criminal action
interrupts the running of the period of prescription of
the offense charged.
Exception: otherwise provided in special
laws.
Art. 90 of the RPC provides for the prescription of
crimes found in the RPC.
 Crimes punishable by death, reclusion
perpetua or reclusion temporal shall
prescribe in 20 years
 Crimes punishable by other afflictive
penalties shall prescribe in 15 years
 Crimes punishable by a correctional
penalty shall prescribe in 10 years with the
exception of those punishable by arresto
mayor, which shall prescribe in 5 years
 Crime of libel or other similar offenses
shall prescribe in 1 year
 Crime of oral defamation and slander by
deed shall prescribe in 6 months
 Light offenses prescribe in 2 months
Act No. 3326 governs the prescriptive periods of
violations of special laws, or offenses other than
those penalized under the RPC.
Violations penalized by special acts shall, unless
otherwise provided in such acts, prescribe:
 After a year for offenses punished only by
a fine or by imprisonment for not more
than one month, or both
 After 4 years for those punished by
imprisonment for more than one month but
less than two years
 After 8 years for those punished by
imprisonment for two years or more, but
less than six years
 After 12 years for any other offense
punished by imprisonment for six years or
more, except the crime of treason, which
shall prescribe after twenty years
 After 2 months for violations penalized by
municipal ordinances
Examples of laws that have their own
prescriptive periods:
a. Election offenses – shall prescribe after five
years after the date of their commission. If the
discovery of the offense be made in an election
contest proceedings, the period of prescription
shall commence on the date on which the
judgment of such proceedings becomes final
and executory. (BP Blg. 881)
b. Genocide law – crimes defined and penalized
under the Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and
Other Crimes Against Humanity, their
prosecution, and the execution of sentences
imposed on their account, shall not be subject
to any prescription. (R.A. 9851)
In Act 3326, the word “proceedings” includes
judicial proceedings and also executive
proceedings. This means investigation by the
executive department.
Thus, when a criminal complaint is filed in SEC for
the investigation of a crime under the Revised
447
Securities Act, the period is interrupted. (SEC v.
Interport, G.R. No. 135808, 2008)
In a complaint under the Intellectual Property Law,
the prescription period is interrupted when the
complaint is filed with the DOJ for preliminary
investigation. (Sanrio v. Lim, G.R. No. 168662,
2008)
For BP22, the filing of the case with the Office of the
Prosecutor interrupts the period.(Panaguiton v.
DOJ, G.R. No. 167571, 2008)
With respect to offenses penalized by special laws,
the filing of the complaint or information in court is
the one that interrupts the prescriptive period and
NOT the filing of the complaint in the proper office
for purposes of conducting a preliminary
investigation. (Zaldivar v. Reyes, G.R. No. 102342,
1992)
However, the filing of a complaint for purposes of
preliminary investigation starts the prosecution
process.
THE REAL OFFENDED PARTY: The People of the
Philippines
Since the crime is also an outrage against the
PRIVATE OFFENDED PARTY, he is entitled to
intervene in its prosecution in cases where the civil
action is IMPLIEDLY instituted therein. But the
State remains the principal offended party, the
offense having been committed against the “People
of the Philippines.
When the criminal action is instituted in the name of
the private offended party (or not People of the
Philippines), the defect is merely of form and may
be cured at any stage of the trial.
The 2000 Rules on Criminal Procedure do not
require as a condition sine qua non to the validity of
the proceedings (in the preliminary investigation)
the presence of the accused for as long as efforts to
reach him were made, and an opportunity to
controvert evidence of the complainant is accorded
him. The obvious purpose of the rule is to block
attempts of unscrupulous respondents to thwart the
prosecution of offenses by hiding themselves or by
employing dilatory tactics. (Sierra v. Lopez, Adm.
Case No. 7549, 2008)
The Information:
1. Must be in writing;
2. In the name of the People of the Philippines;
and
3. Against all persons who appear to be
responsible for the offense involved.
The information must be “against all persons who
appear to be responsible for the offense involved.”
While the prosecutor has discretion to determine
who should be included in the information, he can
be compelled by mandamus if he abuses his
discretion by refusing to include a person as a co-
accused despite sufficient evidence. (Guiao v.
Figueroa, et. al, G.R. No. L-6481, 1954)
However, before mandamus may be resorted to,
the petitioner must exhaust all remedies in the
ordinary course of law (i.e. filing a motion in the trial
court for such inclusion) (Aquino, et al. v. Mariano,
et al., G.R. No. L-30485, 1984)
Note: An information is, for all intents and
purposes, considered an initiatory pleading
because it is a written statement that contains the
cause of action of a party, which in criminal cases is
the State as represented by the prosecutor, against
the accused. (People v. Arojado, GR No. 207041,
2015)
A Complaint:
1. Sworn written statement;
2. Charging a person with an offense; and
3. Subscribed by:
a. The offended party,
b. Any peace officer, or
c. Other public officer charged with the
enforcement of the law violated.
Where a preliminary investigation is required (i.e.,
where the imposable penalty is at least 4 years, two
months and 1 day), the complaint is filed with the
prosecutor. For example, in a case for estafa, the
offended party can institute the criminal action by
448
filing a complaint with the prosecutor’s office. Or in COMPLAINT INFORMATION
a case for murder, the widow of the murdered victim
(being the offended party) or the PNP (being peace
officers) can file the complaint with the prosecutor’s
office. If the prosecutor finds probable cause,
he/she will file the information in court charging the
accused with estafa, murder, etc.
Subscribed by the Subscribed by the
Where a preliminary investigation is not required offended party, any prosecutor. It does not
(i.e., where the imposable penalty is less than 4 peace officer or other have to be subscribed
years, two months and 1 day), the complaint may officer charged with the by the offended party
be filed with the prosecutor (in Metro Manila) or enforcement of the law or any peace officer or
directly with the MTC/MCTC (for cases over which violated. other peace officer
MTC has jurisdiction). charged with the
enforcement of the
The complaint as defined under Section 3 is law.
different from the complaint filed with the
Prosecutor’s Office which refers to the one filed in
COURT for the commencement of a criminal
prosecution for violation of a crime usually
cognizable by Municipal Trial Courts as well as to a
complaint filed by an offended party in PRIVATE
CRIMES or those which cannot be prosecuted de Filed either in the Filed in court.
oficio. Municipal Trial Court or
with the provincial/city
The COMPLAINT FILED WITH THE prosecutor’s office.
PROSECUTOR’S OFFICE, on the basis of which
the prosecutor may conduct a preliminary
investigation, refers to:
1.Any sworn written complaint;
2.Filed by an offended party or any peace officer, or
other public officer charged with the
enforcement of law violated.
2. WHO MAY FILE THEM, CRIMES
Under the Rule on Summary Procedure:
A complaint may be directly filed in the Municipal THAT CANNOT BE PROSECUTED
Trial Court, provided that in Metro Manila and in DE OFICIO
chartered cities, the criminal action may only be
commenced by the filing of information, which Persons Authorized to File an Information
means, only by the prosecutor, except when the 1. City or provincial prosecutor and their
offense cannot be prosecuted de oficio as in private assistants
crimes. 2. Duly appointed special prosecutors
Except:
An Information Defined under Section 4
1. An accusation in writing;
2. Charging a person with an offense;
3. Subscribed by the prosecutor; and 1. In private offenses (concubinage, adultery,
4. Filed with the court. seduction, abduction, acts of
lasciviousness); and
2. Defamations imputing any of the aforesaid
offenses wherein a sworn written
complaint is required in accordance with
Section 5 of this Rule.

449

Prosecution in the Regional Trial Courts is always
commenced by information.
Complaint containing private offenses and
defamation must be filed by the offended party.
In case of variance between the complaint filed by
the offended party and the information in crimes
against chastity, the complaint controls. (People v.
Oso, G.R. No. L-42571, 1935)
A defectively crafted information, such as that
alleging multiple offenses in a single complaint or
information transgresses Section 13, Rule 110 of
the Rules of Court. The failure to make a timely
objection to such defect however is deemed to be a
waiver of the said objection. (People v. Santiago,
G.R. No. 137281, 2001)
In upholding People v. Garfin, the court firmly
instructs that the filing of an Information by an
officer without the requisite authority to file the same
constitutes a jurisdictional infirmity which cannot be
cured by silence, waiver, acquiescence, or even by
express consent. Hence, such ground may be
raised at any stage of the proceedings (Quisay v.
People G.R. No. 216920, 2016).
Decision of the Prosecutor Subject to Review
by:
1. The Secretary of Justice who exercises
supervision and control over the prosecutor’s
actions and who may sustain, modify or set
aside the prosecutor’s resolution on the matter;
and
2. In appropriate cases, by the courts when the
prosecutor acts with grave abuse of discretion
amounting to lack of jurisdiction.
Remedies of the Offended Party if the
Prosecutor Refuses to File an Information:
1. File an appeal with the Secretary of Justice,
who in the exercise of his/her supervisory
powers as department head, my reverse the
opinion of the investigator and designate a
special prosecutor to review and handle the
case.
2. Institute administrative charges against the
erring prosecutor.
3. File criminal charges under Art. 208 of the
Revised Penal Code.
4. File civil action for damages under Art. 27 of
Civil Code.
5. File an action for mandamus to compel the
prosecutor to file such information only if there
is grave abuse of discretion. But the general
rule is that a prosecutor cannot be compelled to
file an Information by mandamus.
There is merit in the appeal. The public prosecutor
is entitled to use his judgment and discretion in the
appreciation of evidence presented to him and, in
the exercise thereof, he may not be controlled by
mandamus. Whether an information should be filed
in court is a matter addressed to the sound
discretion of the fiscal according to whether the
evidence is in his opinion sufficient to establish the
guilt of the accused beyond a reasonable doubt.
Otherwise stated, the fiscal cannot be compelled to
act in a distinct manner whether to prosecute or not
to prosecute and, instead, is allowed to stand on his
opinion and conviction, "reserving only to the
Secretary, in any appropriate case when the latter
believes public interest impels that a different
course of action should be taken, to temporarily
relieve the fiscal of the duty to act by designating
somebody else to take his place solely and only for
the purpose of such particular case. (Abela vs. Hon.
Golez, G.R. No. L-32849, 1984)
3. CRIMINAL ACTIONS, WHEN
ENJOINED
General Rule: Criminal prosecution cannot be
restrained by injunction.
REASON: Public interest requires that criminal acts
be immediately investigated and prosecuted for the
protection of society.
Exception/s:
1. To afford adequate protection to the
constitutional rights of the accused
2. When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of actions
3. When there is a prejudicial question sub
judice
450
 4. When the acts of the officer are without or
ion excess of authority
5. Where the prosecution is under an invalid
law, ordinance, or regulation
6. When double jeopardy is clearly apparent
7. Where the court has no jurisdiction over
the offense
8. Where it is a case of persecution rather
than prosecution
9. Where the charges are manifestly false
and motivated by the lust for vengeance,
or
10. When there is clearly no prima facie case
against the accused and the motion to
quash on that ground has been denied
11. Preliminary injunction has been issued by
the Supreme Court to prevent the
threatened unlawful arrest of petitioners.
(People vs. Grey, G.R. No. 180109, 2010)
4. CONTROL OF PROSECUTION
such stage, the permission of the Court must be
secured (Crespo v. Mogul, G.R. No. L-53373, 1987)
Private Prosecutor Participation: A public
prosecutor may allow a private prosecutor (i.e., a
lawyer engaged by the private offended party) to
actively handle the conduct of the trial:
1. Where the civil action arising from the crime is
deemed instituted in the criminal action.
2. The Public Prosecutor must be present during
the proceedings and must take over the
conduct of the trial from the private prosecutor
at any time the cause of the prosecution may
be adversely affected. Thus, where the
prosecutor has turned over the active conduct
of the trial to the private prosecutor who
presented testimonial evidence even when the
public prosecutor was absent during the trial,
the evidence presented could not be
considered valid evidence of the People.

a. Full Discretion and Control of the Prosecutor

All criminal actions commenced by complaint or
Note: This rule applies ONLY to courts, which are
information shall be prosecuted under the direction
provided by law with prosecutors, and not to
and control of the prosecutor.
municipal courts that have no trial prosecutors, in
which case the evidence presented by the private
b. Private Prosecutor May Prosecute the Case in
prosecutor can be considered as evidence for the
Case of:
People.
1.Heavy work schedule of the public prosecutor; or
2.In the event of lack of public prosecutors.
General Rule: Only the SOLICITOR GENERAL
may bring or defend actions in behalf of the
Provided:
Republic of the Philippines, or represent the People
1. Authorized in writing by the Chief of the
or State in criminal proceedings elevated before the
Prosecution Office or the Regional State
Court of Appeals and the Supreme Court.
Prosecution; and
Exception/s:
2. Subject to the approval of the Court.

1. When the State and the offended party are

deprived of due process because the
Once so authorized, private prosecutor shall
prosecution is remiss in its duty to protect the
continue to prosecute the case up to the end of trial
interest of the State and the offended party;
unless the authority is revoked or withdrawn.
and
Prior to the filing of the information in court, the
2. When the private offended party questions
prosecutor has full control of the case. He
the civil aspect of a decision of a lower court.
decides who should be charged in court and who
should be excluded from the information.

But once the case is already filed in court, the same

can no longer be withdrawn or dismissed without
The Solicitor General (SolGen) has control of
the tribunal’s approval. Should the prosecutor find it
appeals. The Office of the Solicitor General (OSG)
proper to conduct a reinvestigation of the case at

451

may abandon or discontinue the prosecution of the
case in the exercise of its sound discretion and may
even recommend the acquittal of an accused when
it believes that the evidence does not warrant the
accused’s conviction.
However, in all cases elevated to the Supreme
Court by way of petition for review against decisions
or final orders of the Sandiganbayan, it is the
Office of the Ombudsman, through its Special
Prosecutor, which shall represent the People of the
Philippines pursuant to the second sentence, third
to the last paragraph of Section 4 of P.D. No. 1606,
as amended by R.A. No. 8249.
The meaning of “the requirement of Article 344 of
the Revised Penal Code is jurisdictional,” is that it
is the complaint that starts the prosecution. It is not
what confers jurisdiction on the court to try the case.
Even when a complaint is defective for being signed
and filed by the chief of police and not by the
complainant, the court may still acquire jurisdiction
over the case. The complaint required in Article 344
of the RPC is but a condition precedent to the
exercise by the proper authorities of the power to
prosecute the guilty parties. The complaint simply
starts the prosecutory proceeding but does not
confer jurisdiction in the court to try the case.
Article 344 is not determinative of the jurisdiction of
courts over private offenses because the same is
governed by the Judiciary Law and not the RPC.
(People v. Yparraguire, G.R. No. 124391, 2000)
c. Prosecution of Private Crimes
Who May Prosecute
1. Adultery and Concubinage – Only by the
offended spouse who should have the status,
capacity, and legal representation at the time of
filing of the complaint regardless of age;
Both guilty parties must be included in the
complaint; and
The offended party did not consent to the
offense nor pardoned the offenders.
2. Seduction, Abduction and Acts of
Lasciviousness – Prosecuted exclusively and
successively by the following persons in this
order:
a. By the offended woman;
b. By the parents, grandparents or legal/
judicial guardians in that successive order,
if the offended party is a minor or of age
but suffers from physical or mental
disability;
c. By the State pursuant to the doctrine of
parenspatriae, when the offended party
dies or becomes incapacitated before she
could file the complaint and she has no
known parents, grandparents or guardians.
3. Defamation imputing to a person any of the
foregoing crimes of concubinage, adultery,
seduction, abduction, rape or acts of
lasciviousness – Only by the party or parties
defamed (Article 360 of the Revised Penal
Code).
If the offended party is of legal age and does not
suffer from physical or mental disability, she alone
can file the complaint to the exclusion of all.
Who Can Give Pardon
1. Adultery and Concubinage – Only the
offended spouse not otherwise incapacitated,
can validly extend the pardon or consent
contemplated therein.
2. Seduction, abduction and acts of
lasciviousness
a. The offended minor, if with sufficient
discretion can validly pardon the accused
by herself if she has no parents or where
the accused is her own father and her
mother is dead;
b. The parents, grandparents or guardian of
the offended minor, in that order, cannot
extend a valid pardon in said crimes
without the conformity of the offended
party, even if the latter is a minor;
c. If the offended woman is of age and not
otherwise incapacitated, only she can
extend a valid pardon.
The pardon refers to pardon BEFORE filing of the
criminal complaint in court. Pardon effected after
the filing of the complaint in court does not prohibit
the continuance of the prosecution of the offense
EXCEPT in case of marriage between the offender
and the offended party.
Distinction between pardon and consent
452
 3. In multiple rape, insofar as the other
accused in the other acts of rape
respectively committed by them are
PARDON CONSENT concerned

Refers to past acts of Refers to future acts

adultery

The acquittal or death of one of the accused in the

crime of adultery does not bar the prosecution of
the other accused. (United States v. Topiño, G.R.
No. 11895, 1916)
In order to absolve In order to absolve
the accused from the accused from However, the death of the offended spouse before
liability must be liability, it is sufficient the filing of the complaint for adultery bars further
extended to both even if granted only prosecution, BUT if the offended spouse died
offenders to the offending AFTER the filing of the corresponding complaint, his
spouse death will not prevent the proceeding from
continuing to its ultimate conclusion.

Effect of Desistance of Complainant

It does not bar the People from prosecuting the
criminal action. BUT it does operate as a waiver of
the right to pursue civil indemnity.

General Rule: The SUBSEQUENT MARRIAGE
between the party and the accused extinguishes the
criminal liability of the latter, together with that of the
co-principals, accomplices and accessories.
Note: Pursuant to Article 344 of the Revised Penal
Code, seduction, abduction, acts of
lasciviousness and rape, the marriage of the
offender with the offended party shall extinguish the
criminal action or remit the penalty already imposed
upon him.
An offended party in a criminal case has sufficient
personality to file a special civil action for certiorari,
in proper cases, even without the imprimatur of the
State. In so doing, the complainant should not bring
the action in the name of the People of the
Philippines. The action may be prosecuted in the
name of the said complainant. (Perez v. Hagonoy
Rural Bank, Inc., G.R. No. 126210, 2000)
5. SUFFICIENCY OF COMPLAINT OR
INFORMATION

A complaint or information is sufficient if it

states the: (NDANAP)
1. Name of the accused;
2. Designation of the offense by a statute
3. Acts or omission complained of as constituting
Exception/s: the offense;
1. Where the marriage was invalid or 4. Name of the offended party;
contracted in bad faith in order to escape 5. Approximate date of the commission of the
criminal liability; offense; and
2. In “private libel” or the libelous imputation 6. Place where the offense was committed.
of the commission of the crimes of
concubinage, adultery, seduction, The non-inclusion of some of the names of the
abduction, rape, or acts of lasciviousness, eyewitnesses in the information does not preclude
and in slander by deed;

453
the prosecutor from presenting them during trial.
(People v. Dela Cruz, G.R. No. 137967, April 19,
2001)
(a) PURPOSE
To safeguard the constitutional right of an accused
to be informed of the nature and cause of the
accusation against him so that he can duly prepare
his defense
Substantial defect in the information cannot be
cured by evidence that would jeopardize the
accused’s right to be informed of the true nature of
the offense he is charged with.
(b) NAME OF THE ACCUSED
i. If name is known: The name and surname of the
accused or any appellation or nickname by which
he has been or is known
ii. If name cannot be ascertained: A fictitious
name with a statement that his true name is
unknown.
iii. If true name thereafter disclosed: Such true
name shall be inserted in the complaint or
information and record.
While one or more persons, along with specified
and named accused, may be sued as “John Does,”
an information against all accused described as
“John Does” is void; an arrest warrant against
them is also void.
An error in the name of the accused is not
reversible as long as his identity is sufficiently
established. This defect is curable at any stage of
the proceedings as insertion of the real name of
the accused is merely a matter of form (People v.
Padica, G.R. No. 102645, 1993)
Note: Filing of Information instead of complaint by
the prosecutor in private offenses, is valid provided
that the complaint affidavit is attached thereto.
(c) DESIGNATION OF THE OFFENSE
The Information or Complaint Must State or
Designate the Following Whenever Possible:
 The designation of the offense given by the
statute. (If there is no designation of the
offense, reference shall be made to the section
or subsection of the statute punishing it)
 The statement of the acts or omissions
constituting the offense, in ordinary, concise
and particular words.
 The specific qualifying and aggravating
circumstances must be stated in ordinary and
concise language.
Note: For qualifying and aggravating
circumstances to be appreciated, it must be
alleged in the complaint or information. (People
v. Lapore, G.R. No. 191197, 2015)
Rationale: The seriousness of a criminal
prosecution requires a clear specification of the
offense charged, consistently with the right of the
accused to be informed of the nature and cause of
the accusation against him. Also, this is essential to
avoid surprise on the part of the accused and to
afford him the opportunity to prepare his defense
accordingly.
The real question is not, “Did he commit a crime
given in the law some technical and specific name?”
BUT, “Did he perform the acts alleged in the body of
the information?” If he did, it is of no consequence
to him, either as a matter of procedure or of
substantive right, how the law denominates the
crime.
“Try and attempt to rape” in the information is not
sufficient. (People v. Dimaano, G.R. No. 168168,
2005)
In People vs. Ching, the Supreme Court held that
“That the said accused by means of force and
intimidation, to wit: by then and there, willfully,
unlawfully and feloniously drag said AAA, his own
daughter, 12 years of age, minor, inside a bedroom
454
and undressed her and put himself on top of her
and thereafter have carnal knowledge with said
AAA against her will and without her consent”
complies with the requirements of a sufficient
information.
In case of allegation of the aggravating
circumstance of HABITUAL DELINQUENCY, it
should NOT be generally averred. The information
must SPECIFY:
1. The commission of the crimes;
2. The date of last conviction or release;
3. The other previous conviction or release of the
accused and dates.
The qualifying and aggravating circumstances
cannot be appreciated even if proved, unless
alleged in the information. (People v. Perreras, G.R.
No. 139622, 2001)
It is not the designation of the offense in the
complaint or information that is controlling. (People
v. Samillano, G.R. No. L-31375, 1974)
The facts alleged therein, and not its title, determine
the nature of the crime. (El Pueblo de Filipinas v.
Magdowa, G.R. No. L-48457, 1941)
In rape cases, the concurrence of the minority of the
victim and her relationship with the offender is a
special qualifying circumstance which should be
both alleged (People v. Cantos, G.R. No. 129298,
1999)and proved (People v. Manggasin, G.R. Nos.
130599-600,  1999) with certainty in order to
warrant the imposition of the (maximum) penalty.
The accused may be convicted of a crime more
serious than that named in the title or preliminary
part if such crime is covered by the facts alleged in
the body of the information and its commission is
established by evidence. (Buhat v. Court of
Appeals, G.R. No. 119601, 1996)
An accused could not be convicted under one act
when he is charged with a violation of another if the
change from one statute to the other involves:
 A change in the theory of the trial;
 Requires of the defendant a different defense;
or
 Surprises the accused in any way. (U.S. v.
Panlilio, G.R. No. L-9876, 1914)
(d) ACTS OR OMISSIONS COMPLAINED OF AS
CONSTITUTING THE OFFENSE
The acts or omissions complained of must be
alleged in such form as is sufficient to enable a
person of common understanding to know what
offense is intended to be charged, and enable the
court to pronounce proper judgment. No information
for a crime will be sufficient if it does not accurately
and clearly allege the elements of the crime
charged. Every element of the offense must be
stated in the information. What facts and
circumstances are necessary to be included therein
must be determined by reference to the definitions
and essentials of the specified crimes. (People v.
Canceran, GR No. 206442, 2015)
If one or more elements of the offense have not
been alleged in the information, the accused cannot
be convicted of the offense charged, even if the
missing elements have been proved during the trial.
Even the accused’s entering a plea of guilty to such
defective information will not cure the defect, nor
justify his conviction of the offense charged.
The new rule requires that the qualifying and
aggravating circumstances be alleged in the
information.
i. PURPOSES:
 To enable the court to pronounce a proper
judgment;
 To furnish the accused with such a
description of the charge as to enable him
to make a defense;
 As a protection against further prosecution
for the same cause.
ii. RULES ON NEGATIVE AVERMENTS:
Where the law alleged to have been violated:
 Prohibits generally acts therein defined;
 Is intended to apply to all persons
indiscriminately;
455
  But prescribes certain limitations or
exceptions from its violation the
information is sufficient if it alleges facts
which the offender did as constituting a
violation of law, without explicitly negating
the exception, as the exception is a matter
of defense which the accused has to
prove. (People vs. San Juan, G.R. No. L-
22944, 1968)
There, the Information alleged that the
accused prevented the offended party from
entering the polling precinct, in violation of
the Election Code. The law provided that
“The voters shall have the right to freely
enter the polling place as soon as they arrive
unless there are more than forty voters
waiting inside, in which case they have the
right to enter in the order of their arrival as
those who are inside go out, which the latter
shall immediately do after having cast their
votes.” The accused argued that the
Information failed to allege an offense
because the Information did not state that
there were forty or less voters. The Supreme
Court held that, “The limitation — when there
are more than forty voters waiting inside —
on the right of a voter to freely enter the
polling place does not constitute an essential
part of the definition of the crime
contemplated in section 133 of the Revised
Election Code. Instead, it is but a matter
which the accused must assert, and
establish as a defense, and not for the
prosecution to anticipate, allege, and
disprove.”
Where the law alleged to have been violated:
Applies only to specific classes of persons and
special conditions; and
The exemptions from its violation are so
incorporated in the language defining the
crime that the ingredients of the offense
cannot be accurately and clearly set forth if
the exemption is omitted, the information
must show that the accused does not fall
within the exemptions.(U.S. v. Pompeya,
G.R. No. L-10255, August 6, 1915)
There, the Supreme Court gave the following
example: “Suppose xxx that there was a law
providing that all persons who performed manual
labor on Sunday should be punished, with a
provision that if such labor should be performed out
of necessity, the person performing it would not be
liable. In such a case, in the complaint, in order to
show a good cause of action, it would be necessary
to allege that the labor was not performed under
necessity. In other words, the complaint, in order to
be free from objection raised by a demurrer, must
show that the person accused of the crime, in the
absence of proof, is punishable under the law. One
who performed labor under necessity would not be
liable.”
When an exception or negative allegation is not an
ingredient of the offense and is a matter of defense,
it need not be alleged. (U.S. v. Chan Toco, G.R. No.
L-3851, 1908)
iii. COMPLEX CRIMES
Where what is alleged in the information is a
complex crime and the evidence fails to support
the charge as to one of the component offenses,
the defendant can be convicted of the offense
proven.
(e) PLACE OF COMMISSION OF THE OFFENSE
General Rule: A complaint or information is
sufficient if it appears from the allegation that the
offense was committed or some of its essential
ingredients occurred at some place, within the
territorial jurisdiction of the court.
Exception: When the place of commission is an
essential element of the offense, the place of
commission must be alleged with particularity e.g.
456

trespass to dwelling, destructive arson, robbery in
an inhabited house.
Purpose: To show territorial jurisdiction of the
court.
There may be conviction if it appears that the
crime was committed not at the place alleged in
the information, provided that:
1. The place of actual commission was within the
jurisdiction of the court; and
2. The particular place of commission is not an
essential element of the offense charged.
For example, in a case for murder, where the
Information alleges that the victim was shot on
Ayala Avenue but the evidence presented shows
that the shooting took place along Paseo de Roxas,
the accused may still be convicted since the place
of actual commission is within Makati City and the
place of commission is not an essential place of the
offense charged.
(f) DATE OF COMMISSION OF THE OFFENSE
General Rule: It is not necessary to state in the
complaint or information the precise date the
offense was committed. (People v. Bacus, GR No.
208354, 2015)
Exception: Date is material ingredient of the
offense. (Examples: Election offenses, Infanticide)
The remedy against an indictment that fails to
allege the time of commission of the offense with
sufficient definiteness is a motion for bill of
particulars (Rule 116, Section 10). The failure to
move or specification or the quashal of the
information on any of the grounds provided for in
the Rules deprives the accused of the right to object
to evidence which could be lawfully introduced and
admitted under an information of more or less
general terms but which sufficiently charges the
accused with a definite crime. Besides, the exact
date of the commission of the crime is not an
essential element of the crime. (People v. Elpedes,
G.R. No. 137106-07, January 31, 2001)
(g) NAME OF THE OFFENDED PARTY
The complaint or information must state the:
 Name and surname of the persons against
whom or against whose property the
offense was committed or any appellation
or nickname by which such person has
been or is known.
 If there is no better way of identifying him,
he must be described under a fictitious
name. If true name is thereafter disclosed
or ascertained, the Court must cause true
name to be inserted in the complaint or
information and record.
 In crimes against property, if the name of
the offended party is unknown, the
property must be described with such
particularity as to properly identify the
particular offense charged.
To constitute larceny, robbery, embezzlement,
obtaining money by false pretenses, malicious
mischief, etc., the property obtained must be that of
another person, and indictment for such offense
must name the owner and a variance in this
respect between the indictment and the proof will be
fatal.
(h) DUPLICITY OF THE OFFENSE
The information is defective when it charges two or
more DISTINCT or DIFFERENT offenses. A
complaint or information must charge only one
offense, EXCEPT when the law prescribes a
single punishment for various offenses.
i. DUPLICITOUS INFORMATION
Duplicity (sic) in criminal pleading is the joinder of
two or more distinct and separate offenses in the
same count of an indictment or information. It is
duplicitous if it charges two or more different
offenses.
ii. PURPOSE
To give the defendant the necessary knowledge of
the charge to enable him to prove his defense. The
State should not heap upon the defendant two or
more charges which might confuse him in his
defense.
iii. WAIVER
When the accused fails, BEFORE ARRAIGNMENT
(entering a “plea”) is completed, to move for the
quashal of the information which charges 2 or more
offenses, he thereby waives the objection and may
457
be found guilty of as many offenses as those considered as a description of only one offense and
charged and proved during the trial. the information cannot be dismissed on the ground
of multifariousness.

6. AMENDMENT OR SUBSTITUTION OF
THE INFORMATION

(a) KINDS OF AMENDMENT

iv. EXCEPTIONS TO THE RULE ON
DUPLICITY:

 Continuous crimes;
 Complex crimes;
i. BEFORE THE ACCUSED ENTERS HIS
 Special complex crimes;
PLEA, THE PROSECUTOR MAY
 Crimes susceptible of being
committed in various modes; and
 Crimes of which another offense is an
ingredient.

Without leave of court, in form and substance,

v. REQUISITES OF CONTINUOUS CRIMES: provided there is evidence thereon which has been
presented during the preliminary investigation:

1. Plurality of acts performed separately

during a period of time;  Upgrade the offense;
2. Unity of penal provision infringed upon
 Allege qualifying and aggravating
or violated;
circumstances; or
3. Unity of criminal intent which means
 Change the offense charged.
that two or more violations of the
same penal provision are united in
one and the same intent leading to the
perpetration of the same criminal
purpose or claim.
With leave of court, motion by the prosecutor
and notice to the offended party when
amendment:

For example: robbery that took place in several

houses belonging to different persons, when not
absolutely unconnected.  Downgrades the offense charged; or
 Excludes from the information a co-
Where the law with respect to an offense may be accused.
committed in any of the different modes provided by
law, the indictment in the information is sufficient if
the offense is alleged to have been committed in
one, two or more modes specified therein. The
various ways of committing the offense should be

458
The court shall state the reasons in resolving the
motion and copies thereof furnished all parties,
especially the offended party.
ii. AFTER THE PLEA:
 Formal amendment only with:
 Leave of court; and
 Without causing prejudice to the
rights of the accused.
 But when a fact supervenes which
changes the nature of the crime
charged in the information or
upgrades it to a higher crime, in which
case, there is a need for another
arraignment of the accused under the
amended information.
iii. TEST AS TO WHETHER A DEFENDANT IS
PREJUDICED BY AN AMENDMENT:
1. Whether a defense under the information
as it originally stood would be available after
the amendment is made; and
2. Whether any evidence defendant might
have would be equally applicable to the
information in the new form as in the other.
An amendment which does not change the nature
of the crime alleged therein, does not expose the
accused to a charge which could call for a higher
penalty, does not affect the essence of the offense
or cause surprise or deprive the accused of an
opportunity to meet the new averment had each
been held to be one of form and not of substance-
not prejudicial to the accused and, therefore, not
prohibited by Section 14, Rule 110. (People v.
Casey, G.R. No. L-30146, 1981)
General Rule: After arraignment, the prosecutor
may no longer amend the information which
changes the nature of the crime, as it will prejudice
the substantial rights of the accused.
Exception: When a fact supervenes which changes
the nature of the crime charged in the information or
upgrades it to a higher crime, the prosecutor, with
leave of court, may amend the information to allege
such supervening fact and upgrade the crime
charged to the higher crime brought about by such
supervening fact provided it will not prejudice the
rights of the accused.
HOWEVER, if the supervening event which
changes the nature of the crime to a more serious
one occurred after the accused has been convicted,
which makes the amendment of the information no
longer the remedy of the prosecution, the
prosecution can and should charge the accused for
such more serious crime, without placing the
accused in double jeopardy, there being no identity
of the offense charged in the first information and in
the second one.
Amendments to Information May Be Allowed
when:
 It does not deprive the accused of the
right to invoke prescription;
 It does not affect or alter the nature of the
offense originally charged;
 It does not involve a change in the basic
theory of the prosecution so as to require
the accused to undergo any material
charge or modification in his defense;
 It does not expose the accused to a
charge which would call for a higher
penalty;
 It does not cause surprise or deprive the
accused of an opportunity to meet the
new averment.
459
 AMENDMENT SUBSTITUTION

A defendant may file a counterclaim for interpleader May involve either Involves substantial
against the plaintiff and a third party also claiming formal or substantial change from original
the subject matter of the suit. (Gabionza v. CA, G.R. changes. charge.
No. 140311, 2001)

(b) SUBSTITUTION OF THE COMPLAINT OR

INFORMATION

Amendment before the Substitution of

plea has been entered information must be
can be effected without with leave of court as
leave of court. the original
information has to be
i. BEFORE PLEA - double jeopardy does not dismissed.
arise.
ii. ANYTIME BEFORE JUDGMENT (no double
jeopardy and bail for witness)

 Mistake has been made in charging When an amendment Another preliminary

the proper offense or the accused is only as to form, investigation is
cannot be convicted of the offense there is no need for entailed and the
charged, another preliminary accused has to plead
 Court shall dismiss the original investigation and the anew to the new
complaint or information upon the retaking of the plea of information.
filing of a new one, the accused.
 Provided, accused will not be placed
in double jeopardy

When it becomes manifest at any time before An amended Requires or

judgment that a mistake has been made in charging information refers to presupposes that the
the proper offense and the accused cannot be the same offense new information
convicted of the offense charged or any other charged in the original involves a different
offense necessarily included therein, the accused information or to an offense which does
shall not be discharged if there appears good cause offense which not include or is not
to detain him. In such case, the court shall commit necessarily includes or necessarily included
the accused to answer for the proper offense and is necessarily included in the original charge,
dismiss the original case upon the filing of the in the original charge, hence the accused
proper information. hence substantial cannot claim double
amendments to the jeopardy.
information after the

460
plea has been taken
cannot be made over
the objection of the
accused, for if the
original would be
withdrawn, the
accused could invoke
double jeopardy.
Variance between Indictment and Proof:
 When the offense proved is less
serious than and is necessarily
included in the offense charged, in
which case, the defendant shall be
convicted of the offense proved;
 When the offense proved is more
serious than and includes the offense
charged, in which case the defendant
shall be convicted of the offense
charged;
 When the offense proved is neither
included in, nor does it include, the
offense charged and is different
therefrom, in which case the court
should dismiss the action and order
the filing of new information charging
the proper offense. (Substitution of
information applies in this case).
7. VENUE OF CRIMINAL ACTIONS
(a) VENUE IN CRIMINAL CASE IS
JURISDICTIONAL, BEING AN ESSENTIAL
ELEMENT OF JURISDICTION
Purpose: Not to compel the defendant to move to
and appear in a different court from that of the
territory where the crime was committed as it would
cause him great inconvenience in looking for his
witnesses and other evidence in another place.
General Rule: Penal laws are territorial; hence
Philippine courts have no jurisdiction over crimes
committed outside the Philippines. It cannot be
waived or changed by the agreement of the parties
or by consent of the defendant.
Exception/s:
 Where an offense is committed on a
railroad train, in an 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.
 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.
 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.
Piracy – has no territorial limits as it is a crime
against all mankind.
Libel – the action may be instituted at the election
of the offended party in the province or city:
 Where the libelous article is printed or
first published;
 If one of the offended parties is a
private individual, where said private
individual actually resides at the time of
the commission of the offense;
 If the offended party is a public official,
where the latter holds office at the time
of the commission of the offense.
(Artilce 360, RPC)
461

Trafficking in Persons – the action shall be filed
where:
 Where the offense was committed
 Where any of its elements occurred
 Where the trafficked persons actually
resides at the time of the commission
of the offense
The court where the criminal action is first filed shall
acquire jurisdiction to the exclusion of other courts.
(R.A. 9208, §9)
In exceptional circumstances, to ensure a fair trial
and impartial inquiry, the Supreme Court shall have
the power to order a change of venue or place of
trial to avoid the miscarriage of justice (1987
Constitution, Section 5(4), Art. VIII)
B.P. 22 cases - One can file either in the place of
issuance of the check or where the check was
deposited and bounced. (Isip v. People, G.R. No.
170298, 2007)(The Court held that the venue was
properly laid where the accused delivered the
checks and/or transactions occurred).
Estafa cases – elements may be committed in
different places.
8. INTERVENTION OF THE
OFFENDED PARTY IN THE
CRIMINAL ACTION
General Rule: Offended party has the right to
intervene by counsel in the prosecution of the
criminal action where the civil action for recovery of
civil liability is instituted in the criminal action
pursuant to Rule 111, Rules of Court
Exception/s:
 Where from the nature of the crime and
law defining and punishing, no civil
liability arises in favor of the offended
party (e.g., charge of Plunder, which
involves government funds only, as
opposed to Estafa, where the money
belongs to a private person);
 Where the offended party has waived the
right to civil indemnity (e.g., Estafa,
where the offended party states that
he/she waives recovery of actual and
other damages); or
 Where the offended party has already
instituted an action (e.g., Estafa, where
the offended party has filed a separate
civil action to recover actual and other
damages).
Where the offended party withdrew a reservation to
file a separate civil action, the private prosecutor
may still intervene in the prosecution of the criminal
case, by conducting the examination of witnesses
under the control of the prosecutor.
HOWEVER: Once the offended party has filed a
separate civil action arising from the crime, he may
not withdraw such civil case in order to intervene in
the criminal prosecution. He loses the right to
intervene. He no longer has any standing in the
criminal case, except to be a prosecution witness.
Q: Where a criminal action has been
provisionally dismissed upon motion of the
prosecutor, can the case be revived upon
motion of the offended party?
A: NO, because the offended party or complaining
witness cannot act for the prosecutor.
END OF TOPIC
C. PROSECUTION OF CIVIL
ACTION
1. RULE ON IMPLIED INSTITUTION OF
CIVIL ACTION WITH CRIMINAL
ACTION
2. WHEN CIVIL ACTION MAY
PROCEED INDEPENDENTLY
3. WHEN SEPARATE CIVIL ACTION IS
SUSPENDED
462
4. EFFECT OF THE DEATH OF
ACCUSED OR CONVICT ON CIVIL
ACTION whose behalf the check was issued. What the rules
a. After arraignment and during the prohibit is the reservation of a separate civil action
pendency of the criminal action against the natural person charged with violating
b. Before arraignment B.P. Blg. 22, including such corporate officer who
c. Pending appeal of his conviction had signed the bounced check. The civil action that
d. Prior to final judgment is impliedly instituted based on B.P. 22 is only the
5. PREJUDICIAL QUESTION civil liability of the signatory and not of the
6. RULE ON FILING FEES IN CIVIL corporation itself. The distinctness of the cause of
ACTION DEEMED INSTITUTED action against the signatory and that against the
corporation is rendered beyond dispute. (Gosiaco
WITH THE CRIMINAL ACTION vs. Ching, G.R. No. 173807, 2009)

When Reservation Shall Be Made:

1. RULE ON IMPLIED INSTITUTION OF 1. Before the prosecution starts to present its
CIVIL ACTION WITH CRIMINAL evidence; and
2. Under circumstances affording the offended
ACTION party a reasonable opportunity to make such
reservation.
General Rule: The institution or filing of the criminal
action includes therein the institution of civil action
for recovery of civil liability arising from the offense
charged.

Exception/s: When the offended party:

1. Waives the civil action;

2. Reserves his right to institute the civil
action separately; or
3. Institutes the civil action prior to the
criminal action.
Note on juridical persons: Nowhere in B.P. Blg.
22 is it provided that a juridical person may be
impleaded as an accused or defendant in the
prosecution for violations of that law, even in the
litigation of the civil aspect thereof. Nonetheless, the
substantive right of a creditor to recover due and
demandable obligations against a debtor-
corporation cannot be denied or diminished by a
rule of procedure. Technically, nothing in Section
1(b) of Rule 111 prohibits the reservation of a
separate civil action against the juridical person on
Instances where No Reservation Shall Be
Allowed:
1. Criminal action for violation of B.P. 22 – unless
a separate civil action has been filed before the
institution of the criminal action, no such civil
action can be instituted after the criminal action
has been filed as the same has been included
therein.
2. A claim arising from an offense which is
cognizable by the SB – a civil action filed prior
to the criminal action has to be transferred to
the subsequently filed criminal action for joint
hearing (Section 4, P.D. No.1606 as amended
by R.A. No. 8249);
3. Tax cases (Section 7, paragraph b, no.1, R.A.
No. 9282); and
4. Civil actions, which can be filed and prosecuted
independently of the criminal action, namely,
those provided in Articles 32, 33, 34 and 2176
of the Civil Code.

463
Although the criminal and civil actions may be
joined in the criminal case, they are distinct
from each other. The plaintiffs in the two
actions are different.
THEREFORE: Even if the accused started serving
his sentence within the 15-day period from the
promulgation of the judgment of conviction by the
lower court, thereby making the judgment against
him final, the complainant may, within the 15-day
reglementary period, still ask that the civil liability be
fixed by the court, if the judgment does not
adjudicate any civil liability, as the judgment
regarding civil liability has not become final and the
court still has jurisdiction to adjudge the civil liability.
Note: Only civil liability arising from crime charged
(cause of action arising from delict) as a felony is
deemed instituted. Civil liability arising from other
sources of obligations (law, quasi-contract and
quasi-delict) are no longer deemed instituted such
as those under Article 32, 33, 34 and 2176 of the
Civil Code which can be prosecuted even without
reservation. The employer may not be held civilly
liable for quasi-delict in the criminal action since
quasi-delict is not deemed instituted with the
criminal. (Maniago v. Court of Appeals, G.R. No.
104392, 1996)
Recent Jurisprudence: Institution of a criminal
case includes the civil action for the recovery of the
civil liability arising from the offense charged. The
inclusion of the civil action is to avoid multiplicity of
suits. Article 100 of the Revised Penal Code states
that every person criminally liable for a felony is
also civilly liable. (People v. Rayos, G.R. No.
200942, 2015)
If at all, the only civil liability of the employer in the
criminal action would be his subsidiary liability
under the Revised Penal Code.
2. WHEN CIVIL ACTION MAY PROCEED
INDEPENDENTLY
General Rule: Independent civil actions under
Articles 32, 33, 34 and 2176 of the Civil Code:
1. May be brought by the offended party;
2. Proceed independently of criminal action; and
3. Require only a preponderance of evidence
Exception: A plaintiff cannot recover damages
twice for the same act or omission of the
defendant.
Purpose: To make the court’s disposition of the
criminal case of no effect whatsoever on the
separate civil case.
3. WHEN A SEPARATE CIVIL ACTION
IS SUSPENDED
General Rule: PRIMACY OF CRIMINAL ACTION
OVER CIVIL ACTION
After the filing of the criminal action, the civil action,
which has been reserved, cannot be instituted until
final judgment has been rendered in the criminal
action.
If the civil action is instituted before the criminal
action and the criminal action is subsequently
commenced, the pending civil action shall be
suspended until final judgment of the criminal action
has been rendered.
Exception/s:
1. In cases of independent civil actions based
upon Articles 32, 33, 34 and 2176 of the
Civil Code;
2. In cases where the civil action presents a
prejudicial question; and
3. Where the civil action is not one intended to
enforce the civil liability arising from the
offense.
Note: Article 29 of the Civil Code merely
emphasizes that a civil action for damages is not
precluded by the acquittal of an accused for the
same criminal act or omission. It does not state that
464
the remedy can be availed of only in a separate civil
action.
Consolidation of Criminal and Civil Cases
Before Judgment on the Merits
Before judgment on the merits is rendered in the
civil action, the same may, upon motion of the
offended party be consolidated with the criminal
action in the court trying the criminal action. This is
a modification on the rule on primacy of criminal
action.
Where Effected
The consolidation must be effected in the criminal
court, irrespective of the nature of the offense, the
amount of the civil claim or the rank of the court
trying the civil case. In cases where consolidation is
given due course, the evidence presented and
admitted in the civil case shall be deemed
automatically reproduced in the criminal action. The
consolidated criminal and civil cases shall be tried
and decided jointly.
General Rule:
Extinction of penal action does not carry extinction
of civil action where:
1. The acquittal is based on reasonable doubt, if
the civil case has been reserved.
2. The decision contains a declaration that the
liability is not criminal but only civil in nature.
3. The civil liability is not derived from or based on
the criminal act of which the accused is
acquitted. (Sapiera v. Court of Appeals, G.R.
No. 128927, 1999).
Exception: If there is a finding in the final
judgment in the criminal action that the act or
omission from which the civil liability may arise
did not exist. (Ching v. Nicdao, G.R. No.
141181, April 27, 2007)
Note : The acquittal of petitioner does not bar the
offended party from pursuing a subsequent civil
case based on the delict, UNLESS, the judgment of
acquittal expressly declares that the act or omission
from which the civil liability may arise did not exist.
(Coscuella v. Sandiganbayan. G.R. No. 191411,
July 15, 2013)
4. EFFECT OF DEATH ON CIVIL
ACTIONS
After Arraignment and During the Pendency of
the Criminal Action:
General Rule: Death extinguishes the civil liability
arising from delict or the offense.
Exception: Where civil liability is predicated on
other sources of obligations such as law,
contract, quasi-contract, and quasi-delict: (Asilo
v.People G.R. Nos. 159017-18, March 09,
2011)
The action may be continued against the estate or
legal representative of the accused after proper
substitution, or against said estate, whatever the
case may be. Heirs of the deceased shall be
substituted for the deceased defendant. The
criminal case is reduced to a civil action.
However, if the civil action has been reserved and
subsequently filed or such civil action has been
instituted, when the accused died, then such civil
action will proceed and substitution of parties shall
be ordered by the court pursuant to Section 16 Rule
3 of the Rules of Court.
Before Arraignment:
The civil action impliedly instituted in the criminal
action shall be dismissed without prejudice to the
offended party’s filing a civil action against the
estate of the deceased.
Pending Appeal of His Conviction:
It extinguishes his criminal liability as well as the
civil liability based solely thereon. (People v. Bayot,
465
G.R. No. 127444, September 13, 2000)
Prior to Final Judgment:
It terminates his criminal liability and only the civil
liability directly arising from and based solely on the
offense committed.
Judgment in Civil Action Not A Bar
The judgment in civil actions based on Articles 32,
33, 34 and 2176 absolving the defendant from civil
liability does not bar the criminal action.
Note: Where the criminal case was dismissed
before trial because the offended party executed an
affidavit of desistance, the civil action thereof is
similarly dismissed.
5. PREJUDICIAL QUESTION
PREJUDICIAL QUESTION - One which arises in a
case, the resolution of which is a logical antecedent
of the issue involved therein and the cognizance of
which pertains to another tribunal.
Suspension of the criminal case due to a prejudicial
question is only a procedural matter, and is subject
to a waiver by virtue of prior acts of the accused.
There is no prejudicial question where one case is
administrative and the other is civil.
Purpose: To avoid two conflicting decisions.
Where to File Petition for Suspension By
Reason of Prejudicial Question:
Office of the Prosecutor or the court conducting the
preliminary investigation.
Time to Plead
When the criminal action has been filed in court for
trial, the petition to suspend shall be filed in the
same criminal action at any time before the
prosecution rests.
Elements of Prejudicial Question:
1. The civil case involves facts intimately related to
those upon which the criminal prosecution would be
based
2. In the resolution of the issue or issues raised in
the civil action, the guilt or innocence of the
accused would necessarily be determined; and
3. Jurisdiction to try said question must be lodged in
another tribunal. (People v. Arambulo, G.R. No.
186597, 2015)
Note: The annulment of marriage is not a
prejudicial question in the criminal case for
parricide. (Joselito Pimentel v. Maria C. Pimentel,
G.R.172060, September 13, 2010). A prejudicial
question need not conclusively resolve the guilt or
innocence of the accused. It is enough that it tests
the sufficiency of the allegations in the information
in order to sustain further prosecution of the criminal
case. (San Miguel Properties v. Perez, G.R. No.
192253, September 18, 2013)
6. RULES ON FILING FEES IN CIVIL
ACTION DEEMED INSTITUTED WITH
THE CRIMINAL ACTION
Actual Damages
General Rule: No filing fees are required for
amounts of actual damages.
Exception: Criminal action for violation of B.P.
22 which is deemed to include the
corresponding civil action. The offended party
shall, upon the filing of the criminal and civil
actions, pay in full the filing fees based on the
face value of the check as the actual damages.
Purpose of Execution: to prevent the offended
party from using the prosecutor’s office and the
466
court as vehicles for recovery of the face value of or both of the parties.
the check, without paying the corresponding filing
fees therefor.

Damages Other Than Actual

1. If these damages are specified in the
complaint or information, the corresponding
filing fees should be paid, otherwise, the trial
court will not acquire jurisdiction over such
other damages.
2. If not specified in the complaint or
information, the grant and amount thereof are
left to the sound discretion of the trial court, the
corresponding filing fees need not be paid and
shall simply constitute a first lien on the IMPORTANT: Section 1, Rule 111, Rules of Court
judgment. now expressly provides that no counterclaim, cross-
3. In an appeal of a criminal case, the appellate claim or third-party complaint may be filed by the
court may impose additional damages or accused in the criminal case, but any cause of
increase or decrease the amounts of damages action which could have been subject thereof may
upon the accused-appellant. be litigated in a separate civil action.
4. Additional penalties cannot be imposed
upon a co-accused who did not appeal, but REASONS:
modifications of the judgment beneficial to him 1. The counterclaim of the accused will
are considered in his favor. unnecessarily complicate and confuse the
5. The offended party in a criminal case may criminal proceedings;
appeal the civil aspect despite the acquittal 2. The trial court should confine itself to the
of the accused. Where the trial court criminal aspect and the possible civil liability of
convicted the accused, but dismissed the civil the accused arising out of the crime.
action instituted therein, the offended party may
appeal the dismissal to the CA.
6. If aggravating circumstance is not alleged END OF TOPIC
but proven in trial, the court will not consider
such aggravating circumstance in the award of
damages

D. PRELIMINARY INVESTIGATION

1. NATURE OF RIGHT
2. PURPOSES OF PRELIMINARY
INVESTIGATION
Compromise on Civil Aspect
3. WHO MAY CONDUCT
The offended party may compromise the civil
aspect of a crime, provided that it must be entered DETERMINATION OF EXISTENCE
before or during the litigation, and not after final OF PROBABLE CAUSE
judgment. A compromise on the civil aspect is valid 4. RESOLUTION OF INVESTIGATION
even if it turns out to be unsatisfactory either to one PROSECUTOR
5. REVIEW
a. Role of the Secretary of Justice

467
 b. Effects of exclusion of other persons
form the Information
c. Effect if the Information is filed by
someone not authorized by law
6. WHEN WARRANT OF ARREST MAY
ISSUE
7. CASES NOT REQUIRING A
PRELIMINARY INVESTIGATION
8. REMEDIES OF ACCUSED IF THERE
WAS NO PRELIMINARY
INVESTIGATION
9. INQUEST
a. Concept
b. Inquest Prosecutor
c. Filing of Complaint or Information
d. Conditions before an accused may ask
for a preliminary investigation
e. Motion for Reinvestigation
f. Right to bail pending preliminary
investigation
g. Records
h. Issuance of warrant of arrest
PRELIMINARY INVESTIGATION - is an inquiry or
proceeding to determine whether there is sufficient
ground to engender a well-founded belief that a
crime has been committed and that the respondent
is probably guilty thereof and should be held for
trial.
It is purely executive in nature. The courts can
only come in when there is grave abuse of
discretion on the part of the prosecution. PI is based
on probable cause. It does not import absolute
certainty, and need not be based on clear and
convincing evidence. The investigating officer acts
upon reasonable belief. It implies probability of guilt
and requires more than bare suspicion but less than
evidence to justify a conviction. (Manebo v. Acosta,
G.R. No. 169554, 2009)
When Required: EXCEPT as provided in Section 7
of Rule 112, BEFORE the filing of a complaint or
information for an offense where the penalty
prescribed by law is at least 4 years, 2 months and
1 day without regard to the fine.
It is not part of the trial of the criminal action in
court. Nor is its record part of the record of the
case in the Regional Trial Court. The dismissal of
the case by the investigator will not constitute
double jeopardy and will not bar the filing of another
complaint for the same offense, but if re-filed, the
accused is entitled to another preliminary
investigation. (U.S. v. Marfori, G.R No. 10905,
1916)
1. NATURE OF RIGHT
The right of an accused to a preliminary
investigation is not a constitutional but merely a
statutory right. Nonetheless, it is a component part
of due process in criminal justice and is a
substantive right. It is subject to the requirements of
both substantive and procedural due process.
The right to a Preliminary Investigation is a
personal right and may be waived expressly or
by implication. Lack of preliminary investigation is
not a ground to quash or dismiss a complaint or
information, nor does it affect the court’s jurisdiction.
If there was no Preliminary Investigation and an
objection was raised, the court, instead of
dismissing the complaint or information, should
order the conduct of such investigation. (Doromal v.
Sandiganbayan, G.R. No. 85468, 1989)
Waiver:
1. Failure of accused to invoke his right to a
preliminary investigation constituted a waiver of
such right and any irregularity that attended it.
The right may be forfeited by inaction and can
no longer be invoked for the first time at the
appellate level. (Pilapil v. Sandiganbayan, G.R.
No. 101978, 1993)
2. Failure to request it within 5 days from the time
he learns of the filing of the complaint or
information in those instances where the
accused is lawfully arrested without a warrant.
No Right of Preliminary Investigation
When a person is lawfully arrested without a
warrant unless there is a waiver of the provisions of
Article 125 of the Revised Penal Code.
Note: Article 125 of the Revised Penal Code
provides for the periods within which the public
officer or employee detaining a person for some
legal ground is directed to deliver such person to
the judicial authorities (12, 18 or 36 hours
depending upon the penalties prescribed for the
offense).
HOWEVER, the Accused Can Ask for
Preliminary Investigation in the Following
Cases:
If a person is subjected to lawful arrest or inquest
468
proceeding, he can ask for preliminary investigation
BEFORE the filing of the complaint/ information
BUT he must sign a waiver in accordance with
Article 125, Revised Penal Code.
AFTER the filing of the information/complaint, the
accused may, within 5 days from the time he learns
of its filing ask for preliminary investigation.
If the accused is already arraigned, he waives his
right to preliminary investigation.
Note: This rule has been partially amended by A.M.
05-0-8-26-SC. The amendments took effect on
October 3, 2005. The amendment removed the
conduct of preliminary investigation from the judges
of the first level courts.
2. PURPOSES OF PRELIMINARY
INVESTIGATION
Purposes:
1. To determine whether a crime has been
committed and whether there is probable cause
to believe that the accused is guilty thereof.
2. To preserve evidence and keep the witnesses
within the control of the State.
3. To determine the amount of bail, if the offense
is bailable.
Note: It must be stressed that a preliminary
investigation is essentially prefatory and
inquisitorial. It is not a trial based on the merits of
the case. Its main purpose is to determine whether
a crime has been committed and whether there is
probable cause that the accused is guilty of the
crime. (Community Rural Bank of Guimba, Inc. v.
Judge Talavera, A.M. No. RTJ-05-1909, April 6,
2005)
3. WHO MAY CONDUCT
DETERMINATION OF EXISTENCE
OF PROBABLE CAUSE
Officers Authorized To Conduct Preliminary
Investigation
1. Provincial or city prosecutor and their
assistants
2. National and regional state prosecutors
3. Such other officers as may be authorized by
law such as the COMELEC, Ombudsman and
PCGG
Note: Their authority to conduct preliminary
investigations shall include all crimes cognizable by
the proper court in their respective territorial
jurisdictions. (As amended by A.M. No. 05-8-26-SC,
effective October 3, 2005)
No Longer Authorized to Conduct Preliminary
Investigation:
By implication, Municipal Trial Court judges in
Manila and in chartered cities have not been
granted the authority to conduct Preliminary
Investigation, as the officers authorized to do so are
the prosecutors
Note: A.M. No. 05-8-26-SC, which took effect on 3
October 2005, amending Rules 112 and 114 of the
Revised Rules on Criminal Procedure by removing
the conduct of preliminary investigation from judges
of the first level courts. Thus, under Section 2 of
Rule 112, only the following officers are authorized
to conduct preliminary investigations: (a) Provincial
or City Prosecutors and their assistants; (b)
National and Regional State Prosecutors; and (c)
Other officers as may be authorized by law.
(Conquilla v. Bernardo, A.M. No. MTJ-09-1737,
2011)
Regarding Offenses Falling Within the Original
Jurisdiction of the Sandiganbayan:
Prosecutors of offenses falling within the original
jurisdiction of the Sandiganbayan shall, after their
conclusion, transmit the records and their
resolutions to the Ombudsman or his deputy for
appropriate action.
Moreover, the prosecutor cannot dismiss the
complaint without the prior written authority of the
Ombudsman or his deputy, nor can the prosecutor
file an information with the Sandiganbayan without
being deputized by, and without prior written
authority of, the Ombudsman or his deputy.
The Ombudsman is clothed with the authority to
conduct preliminary investigation and to prosecute
all criminal cases involving public officers and
employees, not only those within the jurisdiction of
the SB, but also those within the jurisdiction of the
regular courts. Section 15 of R.A. No. 6770
(Ombudsman Act of 1989) does not make any
distinction. “Any illegal act or omission of any public
official” is broad enough to embrace any crime
committed by a public officer or employee. Such
grant of primary jurisdiction over cases cognizable
by the SB does not necessarily imply the exclusion
from its jurisdiction of cases involving public officers
469
and employees cognizable by other courts. (Uy v.
Sandiganbayan, G.R. Nos. 105965-70, 1999)
In criminal prosecutions, a reinvestigation, like an
appeal, renders the entire case open for review,
regardless of whether a motion for reconsideration
or reinvestigation was sought. The Ombudsman
should not be limited in its review. It is clear from
R.A. No. 6770 that the Ombudsman may motu
propio conduct a reinvestigation. (Roxas v.
Vasquez, G.R. No. 114944, 2002)
Election Offenses:
The exclusive jurisdiction of the COMELEC to
investigate and prosecute election offenses inheres
even if the offender is a private individual or public
officer or employee, and in the latter instance,
irrespective of whether the offense is committed in
relation to his official duties or not. In other words, it
is the nature of the offense, namely, an election
offense as defined in the Omnibus Election Code
and in other election laws, and not the personality of
the offender that matters.
The Ombudsman:
The power of the Ombudsman to make
investigation extends to any illegal act or omission
of any public official, whether or not the same is
committed in relation to his office.
Moreover, the jurisdiction of the Office of the
Ombudsman should not be equated with the limited
authority of the Special Prosecutor under Section
11 of RA 6770. Certainly, the lawmakers did not
intend to confine the investigatory and prosecutory
power of the Ombudsman to these types of cases.
The Ombudsman is mandated by law to act on all
complaints against officers and employees of the
government and to enforce their administrative, civil
and criminal liability in every case where the
evidence warrants. The law likewise allows him to
direct the Special Prosecutor to prosecute cases
outside the Sandiganbayan's jurisdiction in
accordance with Section 11 (4c) of RA 6770. (Uy v.
Sandiganbayan, G.R. Nos. 105965-70, 1999)
Section 4(d) of Administrative Order No. 07
disallows the filing of a motion to quash or dismiss a
complaint filed with the Ombudsman, except on the
ground of lack of jurisdiction.
Which remedy may an aggrieved party avail of
against resolutions of the Ombudsman in
criminal or non-administrative cases?
The law is silent. Hence, appeal is not available as
a remedy because the right to appeal is a statutory
privilege and may be availed of only if there is a
statute to that effect. However, an aggrieved party
is not without remedy, as he can resort to the
special civil action of certiorari under Rule 65.
The Ombudsman DOES NOT Have the Following
Powers:
1. To prosecute before the SB any impeachable
officers with any offense which carries with it
the penalty of removal from office, or any
penalty service of which would amount to
removal from office because by constitutional
mandate, they can only be removed from office
on impeachment for, and conviction of,
culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes,
or betrayal of public trust
2. To prosecute public officers or employees who
have committed election offenses.
3. To file an information for an offense cognizable
by the regular courts.
Effects of an Incomplete Preliminary
Investigation
1. It does not warrant the quashal of the information
2. It does not affect the court’s jurisdiction or the
validity of the information.
By reason of the abbreviated nature of Preliminary
Investigation, a dismissal of the charges as a result
thereof is not equivalent to a judicial
pronouncement of acquittal.
A motion to dismiss is now a prohibited pleading
during preliminary investigation.
The respondent is now required to submit counter-
affidavits and other supporting documents relied
upon by him for his defense.
The respondent has now the right to examine the
evidence submitted by the complainant of which he
may not have been furnished and to obtain copies
thereof at his expense.
If respondent cannot be subpoenaed, or if
subpoenaed but does not submit his counter-
affidavit within 10 days, investigating officer shall
470
resolve the complaint based on the evidence
presented by the complainant.
Rights of Respondent in a Preliminary
Investigation:
1. To examine the evidence submitted by the
complainant.
2. To submit counter-affidavit.
3. To be present in the clarificatory hearing.
Note: The Rules do not require the presence of the
respondent in the Preliminary Investigation. What is
required is that he be given the opportunity to
controvert the evidence of the complainant by
submitting counter-affidavits.
A clarificatory hearing is not indispensable during
preliminary investigation. It is optional on the part of
the investigating officer. If the investigating
prosecutor is already satisfied that he can
reasonably determine the existence of probable
cause based on the parties’ evidence thus
presented, he may terminate the proceedings and
resolve the case. What is determined during
preliminary investigation is only probable cause, not
proof beyond reasonable doubt. (De Ocampo v.
Secretary of Justice, G.R. No. 147932, 2006)
4. RESOLUTION OF INVESTIGATING
PROSECUTOR
After having filed the information, the prosecutor is
called upon to prosecute the case in court. It has
been said that at this stage, unlike judges who are
mandated to display cold neutrality in hearing
cases, the prosecutors are not required to divest
themselves of their personal convictions and refrain
from exhibiting partiality. But while he may strike
hard blows, he is not at liberty to strike foul ones.
He Shall Certify Under Oath in the Information
that:
1. He/she or an authorized officer personally
examined the complainant and his witnesses;
2. There is reasonable ground that a crime has
been committed and the accused is probably
guilty thereof;
3. The accused was informed of the complaint
and of the evidence against him/her; and
4. The accused was given an opportunity to
submit controverting evidence.
Note: Under Sec. 1 Rule 112, the investigating
prosecutor is tasked to determine whether there is
sufficient ground to engender a well-founded belief
that a crime has been committed and that the
respondent is herein guilty. If he finds probable
cause, he executes a certification t the bottom of
the information. However, such certification by itself
is ineffective and not binding to the court. It cannot
be the sole basis for the finding of probable cause
of the trial judge. (Samuel Lee v. KBC Bank N.V.,
G.R. No. 164673, January 15, 2010)
5. REVIEW
No complaint or information may be filed or
dismissed by an investigating prosecutor without
the prior written authority or approval of the
provincial or city prosecutor or the Ombudsman or
his deputy.
Where an assistant fiscal or state prosecutor who
has investigated the case recommends the
dismissal of the case but his findings are reversed
by the Provincial or City Fiscal or by the Chief State
Prosecutor on the ground that a prima facie case
exists, the Provincial or City Fiscal or the Chief
State Prosecutor may, by himself, and on the basis
of the same sworn statements and evidence
submitted:
1. File the information against the respondent; or
2. Direct any other assistant fiscal or state
prosecutor to do so, without conducting another
preliminary investigation
Role of Secretary of Justice
The Secretary of Justice is not prevented from
entertaining an appeal from the accused or from the
offended party even after the information has been
filed and the trial court has arraigned the accused.
Section 4 of DOJ 223 should be construed as
merely enjoining the Secretary of Justice to refrain,
471
as far as practicable, from entertaining a petition for the exclusive jurisdiction of courts of other
review or appeal from the action of the prosecutor levels.
once the complaint or information is filed in court.
These amendments shall take effect on October
If the Secretary reverses the ruling of the provincial 3, 2005 following their publication in a newspaper of
or city prosecutor or chief state prosecutor or the general circulation not later than September 15,
Ombudsman or his deputy, the Secretary shall: 2005.
1. Direct the prosecutor to file the corresponding
information without conducting another 6. WHEN WARRANT OF ARREST MAY
preliminary investigation; or ISSUE
2. Dismiss or move for the dismissal of the
complaint or information with notice to the
If the judge, upon the filing of the complaint or
parties
information with the court, finds probable cause,
he/she shall issue a warrant of arrest or a
Note: A provincial or city prosecutor has neither the
commitment order (if the accused had already been
personality nor the legal authority to review or
arrested) and hold him/her for trial. If the judge is
overrule the decision of the secretary. The only time
satisfied that there is no necessity for placing the
that a motion for reinvestigation may be filed is
accused under custody, he/she may issue
when there is newly discovered evidence. Such
summons instead of warrant of arrest.
must be filed before the secretary of justice rules on
an appeal of the resolution in the preliminary
If the judge does not find probable cause, he may
investigation. (Community Rural Bank of Guimba,
either dismiss the case or give the prosecutor a
Inc. v. Judge Talavera, A.M. No. RTJ-05-1909, April
period of 10 days to file additional evidence. If the
6, 2005)
judge dismisses the case, he must state the basis
of his dismissal.
Effects of Exclusion of Other Persons from the
Information
However, if the evidence on record shows that,
1. If during the trial, evidence is shown that such
more likely than not, the crime charged has been
persons should have been charged, the fact
committed and that respondent is probably guilty of
that they were not included in the information
the same, the judge should not dismiss the case
does not relieve them of criminal liability, and
and thereon, order the parties to proceed to trial.
they can be subsequently prosecuted.
(People vs. Young, GR No. 213910, 2016)
2. The accused that has been charged with the
offense is not allowed to escape punishment
The judge will order the arrest if the imposable
merely because it develops in the course of the
penalty of the offense is more than 4 years, 2
trial that there were other guilty participants in
months and 1 day.
the crime.
3. It does not vitiate the validity of the information.
For crimes under summary procedure, an
Neither is the same a ground for a motion to
arraignment has to be set.
quash.
What the Constitution underscores is the exclusive
Effect if the Information is Filed by Someone
and personal responsibility of the issuing judge to
Not Authorized by Law
satisfy himself of the existence of probable cause.
The court does not acquire jurisdiction. The
In satisfying himself of the existence of probable
accused’s failure to assert lack of authority on the
cause for the issuance of a warrant of arrest, the
part of the prosecutor in filing the information does
judge is not required to personally examine the
not constitute a waiver thereof. (People v. Garfin,
complainant and his witnesses. Following
G.R. No. 153176, 2004. Quisay v. People G.R. No.
established doctrine and procedure, he shall:
216920, 2016).
1. Personally evaluate the report and the
supporting documents submitted by the fiscal
Upon the effectivity of these amendments, First
regarding the existence of probable cause and,
Level Courts shall no longer accept new cases
on the basis thereof, issue a warrant of arrest;
for preliminary investigation, which fall under
or
2. If on the basis thereof he finds no probable
cause, he may disregard the fiscal’s report and
require the submission of supporting affidavits

472
 of witnesses to aid him in arriving at a
conclusion as to the existence of probable
cause.
Sound policy dictates this procedure, otherwise
judges would be unduly laden with the preliminary
examination and investigation of criminal complaints
instead of concentrating on hearing and deciding
cases filed before their courts. (Soliven v. Makasiar,
G.R. Nos. L-82585, L-82827, and L-83979, 1988)
Invalid: A warrant issued by the judge solely on the
basis of the report and recommendation of the
investigating prosecutor, without personally
determining the existence of probable cause by
independently examining sufficient evidence
submitted by the parties during the Preliminary
Investigation.
Effect of a Finding of Probable Cause
It merely binds the suspect to stand trial. It is not a
pronouncement of guilt.
Remedies of the Accused Who Believes that
there is No Probable Cause to Hold Him for
Trial:
1. Motion to dismiss on such ground
2. Motion for the determination of probable cause.
The mere fact that a warrant of arrest has been
issued means that there is already probable cause.
Where an information has already been filed in
court and the Secretary of Justice reversed the
prosecutor’s finding of probable cause, what
should the trial court do upon the prosecutor’s
motion to dismiss?
The judge should make his/her own assessment of
the evidence and not just rely on the conclusion of
the prosecutor; otherwise the court becomes a
mere rubber stamp.
“Once a complaint or information is filed in Court
any disposition of the case, [either] dismissal or the
conviction or acquittal of the accused, rests in the
sound discretion of the Court. Although the fiscal
retains the direction and control of the prosecution
of criminal cases even while the case is already in
Court he cannot impose his opinion on the trial
court. The Court is the best and sole judge on what
to do with the case before it. The determination of
the case is within its exclusive jurisdiction and
competence. (Crespo v. Mogul, G.R. No. L-53373,
1987)
Reinvestigation:
Once the complaint or information is filed in court,
any motion for reinvestigation is addressed to the
sound discretion of the court.
While the trial court judge has the power to order
the reinvestigation of the case by the prosecutor, he
may not, before the prosecutor concluded the
reinvestigation, recall said order, set the case for
arraignment and trial, without gravely abusing his
discretion.
IMPORTANT: The rule now is that the investigating
judge’s power to order the arrest of the accused is
limited to instances in which there is a necessity for
placing him in custody in order not to frustrate the
ends of justice. Thus, even if the judge finds
probable cause, he cannot, on such ground alone,
issue a warrant of arrest. He must further find if
there is a necessity of placing the accused under
immediate custody in order not to frustrate the ends
of justice.(See A.M. No. 05-8-26-SC)
The investigating judge has no power to reduce
or change the crime charged in order to justify
the grant of bail to the accused. The power
belongs to the prosecutor.
After the conclusion of his PI, the judge has to
transmit to the provincial prosecutor his resolution
and entire records of the case, regardless of
473
whether he finds a probable cause or sufficient
ground to issue a warrant of arrest.
When Warrant of Arrest Not Necessary:
1. When the accused is already under detention
2. When the accused is lawfully arrested without a
warrant
3. When the offense is penalized by a fine only
When accused is lawfully arrested without
warrant:
General Rule: No complaint or information shall be
filed for an offense which is penalized by
imprisonment of at least 4 years, 2 months and 1
day without Preliminary Investigation.
Exception: In case a person is ARRESTED
WITHOUT A WARRANT, a complaint or
information may only be filed after an inquest
is conducted in accordance with existing rules.
7. CASES NOT REQUIRING
PRELIMINARY INVESTIGATION NOR
COVERED BY THE RULE ON
SUMMARY PROCEDURE
Cases where the penalty imposed is less than 4
years 2 months and 1 day.
Upon the finding of probable cause, a warrant of
arrest must be issued and arraignment has to be
set. (Rule 112, Section 6)
Procedure to Be Followed if
Complaint/Information filed with the MTC/MCTC:
1. Evaluate the evidence presented;
2. Examine the witnesses in the form of searching
questions or answers; and
3. Require the submission of additional evidence
if necessary.
If a complaint or information is filed directly with the
Municipal Trial Court, [xxx] the judge is given the
discretion to merely issue summons instead of a
warrant of arrest if he does not find it necessary to
place the accused under custody. [xxx] Whether it is
necessary to place the accused in custody in order
not to frustrate the ends of justice is left to the
judge’s sound judgment. (Sesbreo v. Aglugub, A.M.
No. MTJ-05-1581, 2005)
For cases under the Revised Rules on Summary
Procedure, upon finding of probable cause, the
judge will order the arraignment of the accused.
8. REMEDIES OF THE ACCUSED IF
THERE WAS NO PRELIMINARY
INVESTIGATION
Remedies of the Accused:
1. Refuse to enter a plea upon arraignment and
object to further proceedings on ground of
absence of preliminary investigation.
2. Insist on a preliminary investigation.
3. Raise lack of preliminary investigation as error
on appeal.
4. File a petition for prohibition and certiorari.
If the accused files a petition for prohibition and
certiorari, he can also ask for the remedy for
injunctive relief. If the court where the petition was
filed does not grant the injunctive relief within 10
days from the filing of the petition, the lower court
shall proceeding with the hearing of the case or
arraignment. [Rule 65, Sec. 7].
The absence of a preliminary investigation does not
impair the validity of the information or otherwise
474

render it defective. Neither does it affect the
jurisdiction of the court or constitute a ground for
quashing the information. The trial court, instead of
dismissing the information, should hold in abeyance
the proceedings and order the public prosecutor to
conduct a preliminary investigation. (Villaflor v. Viva,
G.R. No. 134744, 2001)
9. INQUEST
Concept
Inquest is an informal and summary investigation
conducted by a public prosecutor in criminal cases
involving persons arrested and detained without the
benefit of a warrant of arrest issued by the court for
the purpose of determining whether or not said
persons should remain under custody and
correspondingly charged in court. (DOJ Department
Circular No. 61, 1993)
Conducted by Inquest Prosecutor
When the accused has been LAWFULLY arrested
without warrant, in which case, an inquest must be
conducted by an inquest prosecutor who will
determine whether his arrest without warrant is
lawful.
Filing of Complaint or Information
The inquest prosecutor may order the release of the
arrested person if he/she finds no sufficient ground
to hold the accused, without prejudice to conducting
further investigation, or filing a complaint or
information within the periods specified in Art. 125
of the RPC.
Provided that in the absence or unavailability of an
inquest prosecutor, the complaint may be filed by
the offended party or a peace officer directly with
the proper court on the basis of the affidavit of the
offended party or arresting officer or person.
Accused may ask for a preliminary
investigation; condition
Before the filing of a complaint or information, the
person arrested without a warrant may ask for a
preliminary investigation by a proper officer, but he
must sign a waiver of the provisions of Article 125 of
the RPC.
1. If the accused allows himself to be arraigned
without asking for a preliminary investigation,
he is deemed to have waived the right to such
PI.
2. If the complaint or information was filed without
PI, the accused may, within 5 days from the
time he learns of the filing of the information,
ask for a preliminary investigation with the
same right to adduce evidence in his favor in
the manner prescribed in this Rule. (5–day
period is MANDATORY; failure to file within
the said period amounts to a waiver)
3. Where the information was amended without a
new PI having been conducted, the 5-day
period is computed from the time the accused
learns of the filing of said amended information.
Where a Motion for Reinvestigation is Granted
Where the trial court has granted a motion for
reinvestigation, it must hold in abeyance the
arraignment and trial of the accused until the
prosecutor shall have conducted and made a report
on the result of the reinvestigation.
Right to Bail Pending Preliminary Investigation
A person lawfully arrested may post bail before the
filing of the information or even after the filing
without waiving his right to PI, provided that he asks
for a PI by the proper officer within the period fixed
in the said rule.
Records
An information or complaint filed in court shall be
supported by the affidavits and counter-affidavits of
the parties and their witnesses, together with the
other supporting evidence and the resolution on the
case.
Records of the preliminary investigation shall NOT
automatically form part of the records of the case.
Courts are not compelled to take judicial notice
thereof. It must be introduced as evidence.
Conditions for the Issuance of Warrant of
Arrest:
1. Must EXAMINE in writing and under oath the
complainant and his witnesses by searching
questions and answers (must be
searching/probing; not merely questions
answerable by “yes” or “no”).
2. Be satisfied that a PROBABLE CAUSE exists.
3. That there is a need to place respondent under
IMMEDIATE CUSTODY in order not to
frustrate the ends of justice.
END OF TOPIC
475
 E. ARREST

somewhat from that which may ordinarily be offered

in self-defense.

1. ARREST, HOW MADE Modes of Arrest:

a. Modes of arrest 1. Arrest by virtue of a warrant; and
b. Duty of arresting officer 2. Arrest without a warrant under exceptional
c. Execution of warrant circumstances as may be provided by statute.
2. ARREST WITHOUT WARRANT, Duty of Arresting Officer
WHEN LAWFUL 1. Arrest the accused; and
3. METHOD OF ARREST 2. Deliver him to the nearest police station or jail
a. By officer with warrant without unnecessary delay.
b. By officer without warrant
c. By Private person Execution of Warrant
4. REQUISITES OF A VALID A warrant of arrest has no expiry date. It remains
valid until arrest is effected or the warrant is lifted.
WARRANT OF ARREST
5. DETERMINATION OF PROBABLE However, head of the office shall cause the warrant
CAUSE FOR ISSUANCE OF to be executed within 10 days from receipt thereof.
WARRANT OF ARREST Within 10 days after expiration of the period, the
6. DISTINGUISH PROBABLE CAUSE arresting officer assigned to execute the same shall
submit a report to the judge who issued the warrant.
OF FISCAL FROM THAT OF A In case of his failure to execute the warrant, he shall
JUDGE state the reasons thereof.

Unlike a search warrant, the validity of which is

1. ARREST, HOW MADE
ARREST- is the taking of a person into custody in
order that he may be bound to answer for the
commission of an offense.
On diplomatic and parliamentary immunity – it is a
well-recognized principle of international law that
diplomatic representatives are exempt from the
criminal and civil jurisdiction of foreign courts. This
exemption includes the freedom from arrest,
prosecution, and punishment for violation of penal
laws.
How an Arrest is Made:
1. By actual restraint of the person to be arrested;
or
2. By his/her submission to the custody of the
person making the arrest.
No violence or unnecessary force shall be used in
making an arrest. The person arrested shall not be
subject to greater restraint than is necessary for his
detention.
It may thus be stated that a police officer, in the
performance of his duty, must stand his ground and
cannot, like a private individual, take refuge in flight;
his duty requires him to overcome his opponent.
The force which he may exert therefor differs
limited to ten days, after which it becomes void
(Rule 126, Section 9), no time limit is fixed for the
validity of a warrant of arrest. The arrest warrant
continues to be in force so long as it has not been
recalled or the person named therein arrested or
had otherwise submitted himself to the jurisdiction
of the court. This must be so, for the return
mentioned in the section refers not to the physical
delivery of the very same copy of the process to the
issuing court, but to the report of the officer charged
with its execution on the action taken by him
thereon. In short, the 10-day period provided in
Rule 113, Section 4 is only a directive to the officer
executing the warrant to make a return to the court.
(People vs. Givera, G.R. No. 132159, 2001)
The Judge Issues a Warrant of Arrest in 2
Instances:
1. Upon the filing of the information by the
prosecutor.
In issuing this kind of warrant, the judge does
not personally examine the complainant and the
witnesses he may produce, but he merely
evaluates personally the report and supporting
documents and other evidence adduced during
the preliminary investigation and submitted to
him by the prosecutor, and if he finds probable

476

cause on the basis thereof, he issues the
warrant for the arrest of the accused.
2. Upon application of a peace officer
In this kind of warrant, the judge must personally
examine the applicant and the witnesses he
may produce, to find out whether there exists
probable cause, otherwise, the warrant issued is
null and void. He must subject the complainant
and the witnesses to searching questions. The
reason for this is there is yet no evidence on
record upon which he may determine the
existence of probable cause.
2. ARREST WITHOUT A WARRANT,
WHEN LAWFUL (Rule 113, Section 5)
Lawful Warrantless Arrest:
1. When IN HIS/HER PRESENCE, the person to
be arrested has committed, is actually
committing or is attempting to commit an
offense (IN FLAGRANTE DELICTO
ARRESTS).
2. When an offense has just been committed and
he has probable cause to believe based on
PERSONAL KNOWLEDGE of fact and
circumstance that the person to be arrested
has committed it (DOCTRINE OF HOT
PURSUIT).
Note: The standards for evaluating the
factual basis supporting a probable cause
assessment are not less stringent in
warrantless arrest situation than in a case
where a warrant is sought from a judicial
officer. The probable cause determination
of a warrantless arrest is based on
information that the arresting officer
possesses at the time of the arrest and not
on the information acquired later. (People
vs. Pestilos, GR No. 182601, 2014)
3. 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
temporarily confined while his case is pending
or has escaped while being transferred from
one confinement to another.
4. When a person who has been lawfully arrested
escapes or is rescued (Rule 113, Section 13).
5. By the bondsman for the purpose of
surrendering the accused (Rule 113, Section
23).
6. Where the accused attempts to leave the
country without permission of the court (Rule
114, Section 23).
Law enforcers may search an arrested person for
dangerous weapons or anything that may be used
as proof of the commission of an offense, without
need of a search warrant.
Section 5(b) authorizes warrantless arrest “when an
offense has in fact just been committed.” The word
“just” implies immediacy in point of time.
Delivery of the detained person to the proper
judicial authorities means the filing of the complaint
or information with the municipal trial court or with
the inquest fiscal or prosecutor who shall then
decide either to order the release of the detained
person or to file the corresponding information in
court.
An accused who enters his plea of NOT guilty and
participates in the trial waives the illegality of the
arrest. Objection to the illegality must be raised
before arraignment, otherwise it is deemed waived,
as the accused had voluntarily submitted
himself/herself to the jurisdiction of the court.
The usual procedure in a buy-bust operation is for
the police officers to arrest the pusher of drugs at
the very moment he hands over the dangerous
drugs to the poseur-buyer. In a case where the
poseur-buyer calls up his superior after receiving
the money, and only thereafter gives a go-signal to
arrest the suspect, the operation is an illegal raid
rather than a buy-bust operation. (People v. Lim,
G.R. No. 141699, August 7, 2002)
Time of Making Arrest
It may be made on any day and at any time of the
day or night.
3. METHOD OF ARREST
a. BY OFFICER WITH WARRANT
Inform the person to be arrested of the:
1. Cause of the arrest and
2. The fact that a warrant has been issued for his
477
 arrest.

Exception/s:

1. When a person flees; or

2. When a person forcibly resists before the Exception/s:
officer has opportunity to so inform him; or
3. When the giving of such information will
imperil his arrest.
1. The person to be arrested is engaged in
the commission of an offense;
2. Pursued immediately after its commission;
3. Has escaped, flees;
4. Forcibly resists before the officer has
opportunity to so inform him; or
5. When giving of such information will
The officer need not have the warrant in his imperil the arrest.
possession at the time of the arrest but after the
arrest, if the person arrested so requires, the
warrant shall be shown to him as soon as
practicable.
Officer May Summon Assistance
b. BY OFFICER WITHOUT WARRANT Arresting officer may orally summon as many
persons as he deems necessary to assist him in
Inform the person to be arrested of: effecting the arrest.
1. His authority and
2. The cause of the arrest. Note: This rule does not cover a private individual
making an arrest.

Right of Officer to Break Into Building or

Enclosure
Exception/s: Requisites:
1. That the person to be arrested is or is
reasonably believed to be in the said building;
2. That the officer has announced his/her
1. When the person is engaged in the authority and purpose for entering therein;
commission of an offense; or 3. That the officer has requested and been denied
2. Pursued immediately after its commission; admittance.
or
3. Has escaped, flees; or
4. Forcibly resists before the officer has
opportunity to so inform him; or
5. When giving of such information will Note: Rule is applicable both where there is a
imperil the arrest. warrant and where there is a valid arrest without a
warrant.
Note: This rule also does not cover a private
individual making an arrest.

c. BY PRIVATE PERSON Right to Break Out of the Building or Enclosure

to Effect Release
Inform the person to be arrested of: An officer making an arrest who has entered a
1. Intention to arrest him and
2. The cause of the arrest.

478
building or enclosure may break out therefrom when
necessary to liberate himself/herself.
Arrest after Escape or Rescue
If a person arrested escapes or is rescued, any
person may immediately pursue or retake him
without a warrant at any time and in any place
within the Philippines.
Right of an Attorney or Relative to Visit the
Person Arrested
The attorney of the person arrested has the right to
visit and confer privately with such person in jail or
any place of custody at any hour of the day or night.
4. REQUISITES OF A VALID WARRANT
OF ARREST
Essential Requisites of a Valid Warrant of
Arrest:
1. The arrest warrant must be issued upon
PROBABLE CAUSE.
2. Probable cause must be DETERMINED
PERSONALLY by a judge.
3. There must be an examination UNDER OATH
OR AFFIRMATION of the complainant and the
witnesses he may produce.
4. The warrant must PARTICULARLY DESCRIBE
the person to be seized.
5. DETERMINATION OF PROBABLE
CAUSE FOR ISSUANCE OF
WARRANT OF ARREST
(See discussion under Preliminary Investigation)
of warrant of arrest and the preliminary investigation
proper which ascertains whether the offender
should be held for trial or to be released. The
determination of probable cause for purposes of
issuing the warrant of arrest is made by the judge.
The preliminary investigation proper – whether or
not there is reasonable ground to believe that the
accused is guilty of the offense charged – is the
function of the investigating prosecutor. (AAA v.
Carbonell, G.R. No. 171465, 2007)
Note: Determination of probable cause is either
executive or judicial in nature. The first pertains to
the duty of the public prosecutor during preliminary
investigation for the purpose of filing an information
in court. At this juncture, the investigating
prosecutor evaluates if the facts are sufficient to
engender a well-founded belief that a crime has
been committed and that the accused is probably
guilty thereof. On the other hand, judicial
determination of probable cause refers to the
prerogative of the judge to ascertain if a warrant of
arrest should be issued against the accused. At this
stage, the judge makes a preliminary examination
of the evidence submitted, and on the strength
thereof, and independent from the findings of the
public prosecutor, determines the necessity of
placing the accused under immediate custody in
order to frustrate the ends of justice. (People v.
Young, GR 213910, 2016)
END OF TOPIC

Pendency of a motion for reconsideration, motion

for reinvestigation, or petition for review is not a
cause for the quashal of a warrant of arrest
previously issued because the quashal of a warrant
of arrest may only take place upon the finding that
no probable cause exists. (Aguinaldo vs Ventus,
GR No.176033, 2015)

The probable cause determination of a warrantless F. BAIL

arrest is based on information that the arresting
officer possesses at the time of the arrest and not
on the information acquired later. (People vs
Pestilos, GR No. 182601, 2014)

6. DISTINGUISH PROBABLE CAUSE OF 1. NATURE

a. Concept
FISCAL FROM THAT OF A JUDGE
b. Purpose of bail
There is distinction between the preliminary inquiry c. Forms of bail
which determines probable cause for the issuance i. Corporate surety

479
 ii. Property bond
iii. Cash deposit
iv. Recognizance
2. WHEN A MATTER OF RIGHT; imposable penalty. (Peope v. Valdez and
EXCEPTIONS Sandiganbayan, G.R. Nos. 216007-09, 2015)
3. WHEN A MATTER OF DISCRETION Purpose of a Bail:
4. HEARING OF APPLICATION FOR 1. To honor the presumption of innocence until his
BAIL IN CAPITAL OFFENSES guilt is proven beyond reasonable doubt;
a. Capital offense 2. To enable him to prepare his defense without
b. Evidence of guilt being subject to punishment prior to conviction.
c. A.M. No. 12-11-2-SC: Guidelines for
Forms of Bail:
Decongesting Holding Jails by
1. Corporate surety;
Enforcing the Rights of Accused
2. Property bond;
Persons to Bail and to Speedy Trial
3. Cash deposit; and
5. GUIDELINES IN FIXING AMOUNT 4. Recognizance.
OF BAIL
a. Corporate surety bail bond
b. Property bond
c. Deposit of cash as bail
d. Recognizance
6. BAIL WHEN NOT REQUIRED
7. INCREASE OR REDUCTION OF BAIL BOND RECOGNIZANCE
BAIL
8. FORFEITURE AND CANCELLATION
OF BAIL
9. APPLICATION NOT A BAR TO
OBJECTIONS IN ILLEGAL ARREST,
LACK OF OR IRREGULAR An obligation given by An obligation of record,
PRELIMINARY INVESTIGATION the accused with one entered into before
or more sureties and some court or
10. HOLD DEPARTURE ORDER & made payable to the magistrate duly
BUREAU OF IMMIGRATION WATCH proper officer with the authorized to take it,
LIST condition to be void with the condition to do
upon performance by some particular act
the accused of such
1. NATURE
acts as he may legally
be required to perform.
Bail
It is the security given for the release of a person in
custody of the law, furnished by him or a
bondsman, to guarantee his appearance before any
court as required under the conditions hereinafter
specified. (Rule 114, Section 1)

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. (Enrile vs.
Sandiganbayan, GR No. 213847, 2015)
Note: The term “punishable” under Sections 4 and
7 of Rule 114 refers to the prescribed and not
Note: A person is “in the custody of law” when he
has been arrested or otherwise deprived of his
freedom or when he has voluntarily submitted
himself to the jurisdiction of the court by
surrendering to the proper authorities.
As bail is intended to obtain or secure one’s
provisional liberty, the same cannot be posted
before the court has acquired custody over him.

480

Upon assumption of the obligation of bail, the
sureties become in law the jailers of their principal.
Prosecution Witness May also be Required to
Post Bail to Ensure Their Appearance at the
Trial of the Case where:
1. There is a substitution of information. (Rule
110, Section 4)
2. Where the court believes that a material
witness may not appear at the trial. (Rule 119,
Section 14)
Requiring Arraignment Before Grant of Bail Is
Not Valid Because
Bail does not require arraignment. As long as there
is deprivation of liberty or voluntary surrender, one
can apply for bail. (Serapio v. Sandiganbayan, G.R.
No. 148468, 2003)
The trial court could ensure the presence of the
accused at the arraignment precisely by granting
bail and ordering his presence at any stage of the
proceedings such as arraignment. (Rule 114,
Section 2[b])
The accused will be placed in a position where he
has to choose between 1) filing a motion to quash
and thus delay his release on bail and; 2) foregoing
the filing of a motion to quash so that he can be
arraigned at once and thereafter be released on
bail. (Lavides v. Court of Appeals, G.R. No.
129670, 2000)
The Surety’s Liability Covers All These 3
Stages:
1. Trial;
2. Promulgation; and
3. The execution of the sentence.
All Kinds of Bail are Subject to the Following
Conditions:
1. Unless the court directs otherwise, the bail
bond posted by an accused remains in force at
all stages of the case until promulgation of the
judgment of the Regional Trial Court.
2. The accused shall appear before the proper
court whenever required by the court or rules.
3. Failure of the accused to appear at the trial
without justification despite due notice shall be
deemed a waiver of his right to be present
thereat. The trial may proceed in absentia.
4. The bondsman shall surrender the accused to
court for execution of the final judgment.
The original papers shall state the full name and
address of the accused, the amount of the
undertaking and the conditions required by this
section. Photographs (passport size) taken within
last six (6) months showing the face, left and right
profiles of the accused must be attached to the bail.
Note: If the accused presents his notice of appeal,
the trial court will order the accused to be taken into
custody in the absence of a new bail bond on
appeal duly approved by the court. If the accused
does not appeal, the bondsman must produce the
accused on the 15th day from promulgation of
sentence for service of sentence.
The prohibition against requiring excessive bail is
enshrined in the Constitution. The obvious rationale
is that imposing bail in an excessive amount could
render meaningless the right to bail. The court has
wide latitude in fixing the amount of bail. Courts are
advised that they must not only be aware but should
also consider the Bail Bond Guide due to its
significance in the administration of criminal justice.
(Yap v. CA and the People, G.R. No. 141529, 2001)
No release or transfer except on court order or
bail
No person under detention by legal process shall be
released or transferred except upon order of the
court or when he is admitted to bail.
Motion for bail requires jurisdiction over the
person of the accused
Except in applications for bail, it is NOT necessary
for the court to first acquire jurisdiction over the
person of the accused (i.e. warrant of arrest,
voluntary appearance) to dismiss the case or grant
other relief. The outright dismissal of the case even
before the court acquires jurisdiction over the
person of the accused is authorized under § 6(a)
Rule 112 of the Revised Rules of Criminal
Procedure and the Revised Rules on Summary
Procedure (§ 12a). (Miranda v. Tuliao, G.R. No.
158763, 2006)
2. BAIL, A MATTER OF RIGHT;
EXCEPTIONS
When Bail is a Matter of Right:
1. Before or after conviction by the MTC; and
2. Before conviction by RTC for all offenses
punishable by lower than reclusion perpetua.
481

Note: Prosecution does not have the right to
oppose or to present evidence for its denial.
When Bail is a Matter of Discretion:
1. Before conviction, in offenses punishable by
death, reclusion perpetua or life imprisonment
2. After conviction by the RTC of a non-capital
offense.
Note: Prosecution is entitled to present evidence for
its denial.
In hearing the petition for bail, the prosecution has
the burden of showing that the evidence of guilt is
strong pursuant to § 8 Rule 114. In bail
proceedings, the prosecution must be given ample
opportunity to show that the evidence of guilt is
strong. While the proceeding is conducted as a
regular trial, it must be limited to the determination
of the bailability of the accused. It should be brief
and speedy, lest the purpose for which it is
available is rendered nugatory. (People v. Singh, et.
al., G.R. No. 129782, 2001)
The test is not whether the evidence establishes
guilt beyond reasonable doubt but rather whether it
shows evident guilt or a great presumption of guilt.
As such, the court is ministerially bound to decide
which circumstances and factors are present which
would show evident guilt or presumption of guilt.
(People v. Cabral, G.R. No. 131909, February 18,
1999)
Right to Bail May Be Waived
The right to bail is personal in nature and is
therefore, waivable.(Paderanga v. CA, G.R. No.
115407, 1995)
Bail in Court-Martial Offenses
The right to bail of an accused military personnel
triable by courts-martial does not exist, as an
exception to the general rule that an accused is
entitled to bail (except in a capital offense where the
evidence of guilt is strong).
RATIONALE: The unique structure of the military
justifies exempting military men from the
constitutional coverage on the right to bail.
The right to bail is not available to military personnel
or officer charged with a violation of the Articles of
War. (Aswat v. Galido, G.R. No. G.R. No. 88555,
1991)
Bail in Extradition Proceedings:
The constitutional right to bail is available only in
criminal proceedings. It does not apply to
extradition proceedings because extradition courts
do not render judgments of conviction or acquittal.
The person subject of the extradition should apply
for bail before the courts trying the criminal case
against him, not before the extradition court. Bail is
not a matter of right in extradition cases.
Bail may be applied for and granted as an
exception, only upon clear and convincing evidence
that once granted, the applicant will not be a flight
risk or a danger to the community; and that there
exist special, humanitarian and compelling
circumstances. (Government of USA v. Purganan&
Jimenez, G.R. 148571, 2002)
Bail in Deportation Proceedings
Aliens in deportation proceedings have no inherent
right to bail. An order of deportation is not a
punishment for a crime, the right to bail guaranteed
by the Constitution may not be invoked by an alien
in said proceedings. (Ong See Hang v.
Commissioner of Immigration, Np. L-9700, 1962)
Notice of hearing required
Whether bail is a matter of right or of discretion,
reasonable notice of hearing is required to be given
to the prosecutor or fiscal or at least he must be
asked for his recommendation because in fixing the
amount of bail, the judge is required to take into
account a number of factors such as the applicant’s
character and reputation, forfeiture of other bonds
or whether he is a fugitive from justice.
Hearing is not required:
1. If bail is recommended by prosecution; or
2. If it is a matter of right.
Summary of the evidence for the prosecution
The court’s order granting or refusing bail must
482
contain a summary of the evidence for the resolved by the appellate court.
prosecution, otherwise the order granting or
denying bail may be invalidated because the
summary of the evidence for the prosecution which
contains the judge’s evaluation of the evidence may
be considered as an aspect of procedural due
process for both the prosecution and the defense.
(Cortes v. Catral, Adm. Matter No. RTJ-97-1387,
1997)

3. BAIL, WHEN DISCRETIONARY

Not entitled to bail

An accused who has been convicted of an offense
After appeal is perfected, the trial court loses
which carries a penalty of more than 20 years is not
jurisdiction to grant bail and to approve bail
entitled to bail during the pendency of his appeal.
bond.
However, the accused may apply for bail or
An accused who is convicted of a capital offense is
provisional liberty with the appellate court.
no longer entitled to bail on appeal since his
conviction imports that the evidence of guilt is
If the penalty imposed by the trial court is
strong.
imprisonment exceeding 6 years, the accused
shall be denied bail or his bail be cancelled
upon a showing by the prosecution of the
following:
1. Accused is a recidivist, quasi-recidivist or
habitual delinquent or has committed the crime
aggravated by the circumstance of reiteration;
2. That he has previously escaped from legal
confinement, evaded sentence or violated the
condition of his bail without valid justification;
3. That he committed the offense while under
probation, parole or conditional pardon;
4. That the circumstances of his case indicate the
probability of flight if released on bail; or
Trial court may grant bail before appeal is
5. that there is undue risk that he may commit
perfected
another crime during the pendency of the
Whether bail is a matter of right or discretion, the
appeal.
trial court may grant bail and approve the amount of
the bail bond before the accused has perfected his
Two Scenarios under Rule 112, Section 5:
appeal, appeal being perfected upon filing of a
1. If the accused is convicted and sentenced by
written notice of appeal and furnishing the adverse
the RTC to imprisonment exceeding 6 years
party copy thereof.
but not more than 20 years AND none of the
above circumstances (recidivist, etc.) is
However, if the decision of the trial court convicting
present, the grant of bail is a matter of
the accused changed the nature of the offense from
discretion. The court may or may not grant
non-bailable to bailable, the application for bail can
bail.
only be filed with and resolved by the appellate
2. If the accused is convicted and sentenced by
court.
the RTC to imprisonment exceeding 6 years
but not more than 20 years AND one or more
Even if there is no notice of appeal, if the decision
of the above circumstances (recidivist, etc.) is
of the TC convicting the accused changed the
present, bail should be denied. (Leviste v. CA,
nature of the offense from non-bailable to bailable,
G.R. No. 189122, 2010)
the application for bail can only be filed with and

483

4. HEARING OF APPLICATION FOR
BAIL IN CAPITAL OFFENSES
CAPITAL OFFENSE is an offense which, under
the law existing at the time of its commission
and of the application for admission to bail may be
punished with death.
Note: R.A. No. 9346 entitled ”An Act Prohibiting
the Imposition of Death Penalty in the Philippines”
was enacted on June 24, 2006 repealing R.A. No.
8177 and R. A. No. 7659 and abolishing the death
penalty.
After conviction by the trial court, the accused
convicted of a capital offense is no longer entitled to
bail as a matter of right, and can only be released
when the conviction is reversed by the appellate
court. (1987 Constitution, Article III, Section 13)
Burden of proof in bail application
When the offense is punishable by reclusion
perpetua or life imprisonment, the prosecution has
the burden of showing that evidence of guilt is
strong.
EVIDENCE OF GUILT in the Constitution and the
Rules refers to a finding of innocence or culpability,
regardless of the modifying circumstances.
Evidence Presented Automatically Reproduced
at Trial
The evidence presented during the bail hearing
shall be considered automatically reproduced at the
trial but, upon motion of either party, the court may
recall any witness for additional examination unless
the latter is dead, outside the Philippines, or
otherwise unable to testify.
A.M. No. 12-11-2-SC: Guidelines for
Decongesting Holding Jails by Enforcing the
Rights of Accused Persons to Bail and to
Speedy Trial (“Guidelines”)
Bail hearing in offenses punishable by death,
reclusion perpetua, or life imprisonment:
1. The hearing of the accused’s motion for bail in
offenses punishable by death, reclusion
perpetua, or life imprisonment shall be
summary, with the prosecution bearing the
burden of showing that the evidence of guilt is
strong. The accused may at his option, if he
wants the court to consider his evidence as
well, submit in support of his motion the
affidavits of his witnesses attesting to his
innocence.
2. At the hearing of the accused’s motion for bail,
the prosecution shall present its witnesses
with the option of examining them on direct or
adopting the affidavits they executed during
the preliminary investigation as their direct
testimonies.
3. The court shall examine the witnesses on their
direct testimonies or affidavits to ascertain if
the evidence of guilt of the accused is strong.
The court’s questions need not follow any
particular order and may shift from one
witness to another. The court shall then allow
counsels from both sides to examine the
witnesses as well. The court shall afterwards
hear the oral arguments of the parties on
whether or not the evidence of guilt is strong.
4. Within 48 hours after hearing, the court shall
issue an order containing a brief summary of
the evidence adduced before it, followed by its
conclusion of whether or not the evidence of
guilt is strong. Such conclusion shall not be
regarded as pre-judgment on the merits of the
case that is to be determined only after a full-
blown trial. (Section 6 of Guidelines)
Regarding Minors Charged with a Capital
Offense
If the person charged with a capital offense, such as
murder, admittedly a minor, which would entitle him,
if convicted, to a penalty next lower than that
prescribed by law, he is entitled to bail regardless of
whether the evidence of guilt is strong. The reason
for this is that one who faces a probable death
sentence has a particularly strong temptation to
flee. This reason does not hold where the accused
has been established without objection to be minor
484
who by law cannot be sentenced to death.(See R.A.
No. 9165, Section 98)
Privileged mitigating circumstance of minority shall
be considered for the purposes of recommending
the amount of bail.(R.A. No. 9344, Section 34)
Duty of judge to conduct hearing
Where the prosecution agrees with the accused’s
application for bail or forgoes the introduction of
evidence, the court must nonetheless set the
application for hearing. It is mandatory for the judge
to conduct a hearing and ask searching and
clarificatory questions for the purpose of
determining the existence of strong evidence
against the accused; and the order, after such
hearing, should make a finding that the evidence
against the accused is strong.
The grant or denial of bail is not a ground for
inhibition of the judge.
5. GUIDELINES IN FIXING AMOUNT OF
BAIL
The judge shall fix a reasonable amount of bail
considering primarily, but not limited to the
following factors:
1. Financial ability of the accused to give bail;
2. Nature and circumstances of the offense;
3. Penalty for the offense charged;
4. Character and reputation of the accused;
5. Age and health of the accused;
6. Weight of the evidence against the accused;
7. Probability of the accused appearing at the
trial;
8. Forfeiture of other bail;
9. The fact that the accused was a fugitive from
justice when arrested; and
10. Pendency of other cases where the accused is
on bail.
Excessive bail shall not be required.
Whatever the fiscal recommends as the amount of
bail for the provisional release of an accused is only
recommendatory. The Judge still retains the
discretion to apply the precedents laid down by the
SC regarding the reasonable nature of the bail to be
required. It is not bound by the Fiscal’s
recommendation. (Amaya v. Ordoñez, G.R. No.
80906, 1988)
Corporate Surety Bail Bond
May be provided by any domestic or foreign
corporation, licensed as surety in accordance with
law and currently authorized to act as such
Subscribed jointly by the accused and an officer of
the corporation duly authorized by the board of
directors.
Note: The term of the bail bond is not dependent
upon faithful payment of the bond premium.
Property Bond; How Posted
PROPERTY BOND is an undertaking constituted as
a lien on the real property given as security for the
amount of the bail.
Within 10 days after the approval of the bond, the
accused shall annotate the lien on the certificate of
title with the Registry of Deeds and on the
corresponding tax declaration in the office of the
provincial, city and municipal assessor concerned.
Failure to do so shall be sufficient cause for
cancellation of the property bond and his re-arrest
and detention.
Qualifications of sureties in property bond
1. Each must be a resident owner of real property
within the Philippines.
2. Where there is only one surety, his real estate
must be worth at least the amount of the
undertaking.
3. If there are two or more sureties, each may
justify in an amount less than that expressed in
the undertaking but the aggregate of the
justified sums be equivalent to the whole
amount of the bail demanded.
4. Every surety must be worth the amount
specified in his own undertaking over and
above all just debts, obligations and properties
exempt from execution.
Before accepting a surety or bail bond, the
following requisites must be complied with:
1. Photographs of the accused;
2. Affidavit of justification;
3. Clearance from the supreme court;
4. Certificate of compliance with Circular No. 66
485
 dated September 19, 1996;
5. Authority of the agent; and
6. Current certificate of authority issued by the
insurance commissioner with a financial
statement showing the maximum underwriting
capacity of the surety company.
Note: The purpose of requiring the affidavit of
qualification by the surety before the judge is to
enable the latter to determine whether or not the
surety possesses the qualification to act as such,
especially his financial worth as required in the
previous section.
Deposit of cash as bail
The accused or any person acting on his behalf
may deposit in cash the amount of bail fixed by the
court or recommended by the prosecutor who
investigated or filed the case with the:
1. Nearest collector of internal revenue;
2. Provincial, city or municipal treasurer;
or
3. Clerk of court where case is pending.
Money considered as bail, applied to payment of
fine and costs while the excess if any, shall be
returned to the accused or whoever made the
deposit.
The trial judge has no authority to strictly require
that only cash bond, instead of a surety bond, be
deposited for the provisional release of the
accused.
Respondent judge is only authorized to receive the
cash bail bond under Section 17 (a), Rule 114 of
the Revised Rules on Criminal Procedure which
says that the bail bond may be filed either with the
court where the case is pending, or with any
Regional Trial Court (RTC) of the place of arrest, or
with any judge of the Metropolitan Trial Court or the
Municipal Trial Court of the place of arrest. (Tormis
v. Judge Paredes, A.M No. RTJ-13-2366, 2015)
A judge cannot receive cash for bail nor keep it in
his office or residence. (Lachica v. Judge Tormis,
A.M. No. MTJ-05-1609, 2005)
Recognizance
It is an obligation of record, entered into before
some court or officer authorized to take it with a
condition to do some particular act, the most usual
condition in criminal cases being the appearance of
the accused for trial.(See R.A. No. 10389)
The following are cases where the court may
order the release on recognizance of any person
under detention:
1. When the offense charged is for violation of an
ordinance, a light, or a criminal offense, the
imposable penalty of which does not exceed 6
months imprisonment and/or P2,000 fine,
under the circumstances provided in R.A. No.
6036.
2. Where a person has been in custody for a
period equal to or more than the minimum of
the imposable principal penalty, without
application of the Indeterminate Sentence Law
or any modifying circumstance, in which case
the court, in its discretion, may allow his
release on his own recognizance.
3. Where the accused has applied for probation,
pending resolution of the case but no bail was
filed or the accused is incapable of filing one.
4. In case of a youthful offender held for physical
and mental examination, trial, or appeal, if he is
unable to furnish bail and under circumstances
envisaged in PD No. 603 as amended. (Espiritu
v. Jovellanos, A.M. No. MTJ-97-1139, 1997)
5. In summary procedure, when the accused has
been arrested for failure to appear when
required. His release shall be either on bail or
recognizance.
If it has been determined that the child taken into
custody is 15 years old or below, the authority
which will have an initial contact with the child has
the duty to immediately release the child to the
custody of his/her parents or guardian, or in the
absence thereof, the child's nearest relative.(R.A.
No. 9344, Section 20)
If the parents, guardians or nearest relatives cannot
be located, or if they refuse to take custody, the
child may be released to any of the following (R.A.
No. 9344, Section 20):
 a duly registered nongovernmental or religious
organization;
486
 a barangay official or a member of the
Barangay Council for the Protection of Children
(BCPC);
 a local social welfare and development officer;
or
 when and where appropriate, the DSWD.
The court shall not order the detention of a child in a
jail pending trial or hearing of his/her case.
Institutionalization or detention of the child pending
trial shall be used only as a measure of last resort
and for the shortest possible period of time.
Whenever detention is necessary, a child will
always be detained in youth detention homes
established by local governments. (R.A. No. 9344,
Section 35-36)
6. BAIL, WHEN NOT REQUIRED
Bail is not required when the law or rules
provide:
1. Offense charged is violation of an ordinance,
light felony or criminal offense the imposable
penalty does not exceed 6 months of
imprisonment and/or fine of P2,000 under RA
6036.
2. Where the accused applied for probation and
before the same has been resolved but no bail
was filed or the accused is incapable of filing
one, in which case he may be released on his
own recognizance.
3. In case of a youthful offender held for physical
or mental examination, trial or appeal, if
unable to furnish bail and under the
circumstances provided by P.D. 603, as
amended.
4. A person who has been in custody for a period
equal to or more than the possible maximum
imprisonment prescribed for the offense
charged, without prejudice to the continuation
of the trial or the proceedings on appeal.
5. A person accused of an offense with a
maximum penalty of destierro shall be
released after 30 days of preventive
imprisonment.
Reduced Bail
A person in custody for a period 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.
Bail, Where Filed
May be filed with the court where the case is
pending:
1. With the court where the case is pending (e.g.,
if a case for homicide is pending before Branch
1 of RTC Manila, the accused should post/file
bail in Branch 1);
2. In the absence or unavailability of the judge
thereof, with the regional trial judge or any first
court judge in the province, city or municipality;
3. If the accused was arrested in a province, city
or municipality other than where the case is
pending, bail may be filed with the RTC of the
said place or if no judge is available, with any
first court judge therein;
4. Where bail is a matter of discretion or the
accused seeks to be released on
recognizance, it may only be filed in the court
where the case is pending, whether on trial or
appeal;
5. Any person not yet charged in court may apply
for bail with any court in the province, city or
municipality where he is held;
6. If the accused was convicted and the nature of
the offense changed from non-bailable to
bailable, the application can be made with and
resolved by the appellate court.
Note: A judge presiding in one branch has no
power to grant bail to an accused who is being tried
in another branch presided by another judge who is
not absent or unavailable, and his act of releasing
him on bail constitutes ignorance of law which
subjects him to disciplinary sanction.
Notice of application to prosecutor
Court to give reasonable notice of the hearing to the
prosecutor or require him to submit his
recommendation.
Hearing for application for bail is mandatory.
Whether bail is a matter of right or discretion, there
must be a reasonable notice given to or at least a
recommendation sought from the prosecutor.
(Mabutas v. Perello, A.M. No. RTJ-03-1817, 2005)
Release on Bail
487
Upon approval of the bail by the judge, the accused Where the offense is bailable, the mere probability
must be discharged. that the accused will escape or if he had previously
escaped while under detention does not deprive
An officer who fails or refuses to release him from him of his right to bail. The remedy is to increase
detention notwithstanding the approval by the the amount of bail, provided the amount is not
proper court of his bail bond may be held liable excessive. (Sy Guan v. Amparo, G.R. No. L-1771,
under Art. 126 if the Revised Penal Code for 1947)
delaying release.
8. FORFEITURE OF BAIL
Bail in the amount fixed may be filed with the court
where the case is pending, or in the absence or
Bail is Forfeited:
unavailability of the judge thereof, with any regional
1. Where the presence of the accused is
trial judge, metropolitan trial judge, municipal trial
specifically required by the court or the Rules of
judge, or municipal circuit trial judge in the province,
Court; and
city, or municipality. If the accused is arrested in a
2. Despite due notice to the bondsmen to produce
province, city, or municipality other than where the
him before the court on a given date, the
case is pending, bail may also be filed with any
accused fails to appear in person as so
regional trial court of said place, or if no judge
required.
thereof is available, with any metropolitan trial
judge, municipal trial judge, or municipal circuit trial
To justify exemption from liability on a bail bond
judge therein.
or reduction thereof, two requisites must be
satisfied:
Where the grant of bail is a matter of discretion, or
1. Production or surrender of the person of the
the accused seeks to be released on recognizance,
accused within 30 days from notice of the order
the application may only be filed in the court where
of the court to produce the body of the accused
the case is pending, whether on preliminary
or giving reasons for its non-production; and
investigation, trial, or on appeal.
2. Satisfactory explanations for the non-
appearance of the accused when first required
Any person in custody who is not yet charged in
by the trial court to appear.
court may apply for bail with any court in the
province, city, or municipality where he is held.

7. INCREASE OR REDUCTION OF BAIL

Court may either increase or reduce the amount
of the bail:
1. After the accused admitted to bail; AND
2. Upon good cause
If the accused does not give the increased amount
of bail within a reasonable time will be committed to
custody.
Failure to PRODUCE the body of the principal or
give a reason for his non-production and EXPLAIN
why the accused did not appear before the court
when first required to do so, the court shall render a
judgment against the bondsmen, jointly and
severally for the amount of the bail.
The period of 30 days cannot be shortened by the
court but may be extended for good cause shown.

Accused Released Without Bail May:

1. At any subsequent stage
2. Whenever a strong showing of guilt appears to
the court
3. Be required to give bail or in lieu thereof,
committed to custody
ORDER OF ORDER OF
FORFEITURE CONFISCATION

488
 Conditional and Not independent of the
interlocutory. It is order of forfeiture. It is a
not appealable judgment ultimately
determining the liability of
the surety thereunder and
therefore final. Execution
may issue at once.
Bail is Cancelled:
1. Upon application of the bondsmen with due
notice to the prosecutor, upon surrender of the
accused or proof of his death;
2. Upon acquittal of the accused;
3. Upon dismissal of the case; or
4. Execution of judgment of conviction.
In all instances, without prejudice to any liability on
the bail.
Arrest of Accused Out on Bail
The bondsmen who put the bail bond for the
accused become the jailers and they or the police
officer to whom authority is endorsed may arrest the
accused for the purpose of surrendering him to the
court. The accused cannot leave the country
without the permission of the bondsmen and the
court.
How sureties may be relieved from
responsibility over the accused:
1. Arrest the principal and deliver him to the
proper authorities.
2. They may cause the arrest of the accused to
be made by any police officer or other person
of suitable age or discretion.
3. By endorsing the authority to arrest upon a
certified copy of the undertaking and delivering
it to such officer or person.
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.
No Bail After Judgment; Exception
General Rule: No bail shall be allowed after the
judgment has become final, as what is left is for him
to serve the sentence.
Exception: When he has applied for probation
before commencing to serve sentence, the penalty
and the offense being within the purview of the
Probation Law. The application for probation must
be filed within the period of perfecting an appeal.
Such filing operates as a waiver of the right to
appeal.
Exception to the exception: The accused shall not
be allowed to be released on bail after he has
commenced to serve his sentence.
Once a child who is under 18 years of age at the
commission of the offense is found guilty of the
offense charged, the court shall place the child
under suspended sentence, without need of
application. The suspension of sentence shall still
be applied even if the juvenile is already 18 years of
age or more at the time of the pronouncement of
his/her guilt. (R.A. No. 9344, Section 38)
Court Supervision Of Detainees
The court shall exercise supervision over all
persons in custody for the purpose of eliminating
unnecessary detention. The executive judges of
RTCs shall conduct monthly personal inspections of
provincial, city or municipal jails and the prisoners
within their respective jurisdictions.
9. APPLICATION NOT A BAR TO
OBJECTIONS IN ILLEGAL ARREST,
LACK OF OR IRREGULAR
PRELIMINARY INVESTIGATION
Bail is not a bar to objections on illegal arrest,
lack of or irregular preliminary investigation
An application for admission to bail shall not
bar the accused from:
1. Challenging the validity of his arrest; or
2. The legality of the warrant issued therefore; or
3. From assailing the regularity or questioning the
absence of a preliminary investigation of the
charge against him.
489
 b. To be informed of the nature and the
cause of the accusation against him
c. To be present and defend in person and
by counsel at every stage of the
PROVIDED: That the accused raises them before proceeding
entering his plea. d. To testify as a witness in his own behalf
e. Right against self-incrimination
The court shall resolve the matter as early as f. Right of confrontation
practicable, but not later than the start of the trial of g. To have compulsory process issued to
the case. secure the attendance of witnesses and
production of other evidence in his
10. HOLD DEPERTURE ORDER & behalf
BUREAU OF IMMIGRATION WATCH h. Right to speedy, impartial, and public
trial
LIST

Hold-Departure Orders
Supreme Court Circular No. 39-97 dated June
19, 1997 limits the authority to issue hold departure
orders to the RTCs in criminal cases within their
exclusive jurisdiction.
2. RIGHTS OF PERSONS UNDER
Consequently, MTC judges have no authority to
issue hold-departure orders, following the maxim,
CUSTODIAL INVESTIGATION
express mention implies the exclusion. Neither
does he have authority to cancel one, which he This rule enumerates the rights of the accused
issued. during trial and custodial investigations, both of
constitutional and statutory origins. This rule does
A criminal case is required before a Hold- not cover the right of an accused to appeal, which
Departure Order may be issued will be discussed in Rule 122.
Hold-Departure Orders shall be issued only in
criminal cases within the exclusive jurisdiction of the RA 7438 provides for the rights of the accused
Regional Trial Courts. during custodial investigation.

Sandiganbayan may issue Hold Departure Order Rights of the Accused (Rule 115,
Sandiganbayan is a special court, of the same level Section 1)
as the Court of Appeals and possessing all the 1. To be presumed innocent until the contrary is
inherent powers of a court of justice.(R.A. 8249, proved beyond reasonable doubt;
1997) 2. To be informed of the nature and cause of the
accusation against him;
END OF TOPIC 3. 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
G. RIGHTS OF THE identification. The absence of the accused
without justifiable cause at the trial of which he
ACCUSED 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
1. RIGHTS OF THE ACCUSED AT allowed to defend himself in person when it
TRIAL sufficiently appears to the court that he can
a. To be presumed innocent properly protect his right without the assistance
of counsel;

490
4. 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;
5. To be exempt from being compelled to be a
witness against himself;
6. 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;
7. To have compulsory process issued to secure
the attendance of witnesses and production of
other evidence in his behalf;
8. To have speedy, impartial and public trial; and
9. To appeal in all cases allowed and in the
manner prescribed by law.
Due Process
a. Substantive – it considers the intrinsic
validity of the law.
b. Procedural – it is based on the principle
that a court hears before it condemns.
Procedural due process requires notice and
hearing.
1. RIGHTS OF ACCUSED AT TRIAL
A. To be presumed innocent
In all criminal prosecutions, the accused is
presumed innocent until the contrary is proved
beyond reasonable doubt. (1987 Philippine
Constitution, Article III, Section 14 (2))
The accused can only be convicted if the
Constitutional presumption of innocence is
overthrown by such quantum of evidence, which is
proof beyond reasonable doubt. (People v. Sy, G.R.
No. 185284, 2009)
This presumption prevails over the presumption of
regularity in the performance of official duty (People
v. Sy, G.R. No. 185284)
Accusation is not synonymous with guilt. (People v.
Ladrillo, G.R. No. 124342, 1999)
The conviction should be based on the strength of
the prosecution and not on the weakness of the
defense. (People v. Lagarde, G.R. No. 182549,
2009)
There is only one type of quantum of evidence
which overcomes the presumption of innocence and
that is proof beyond reasonable doubt (Sec. 2 Rule
133 Rules of Court)
Reasonable Doubt
It is the doubt engendered by an investigation of the
whole set of evidence and the inability, after such
investigation, to let the mind rest easy upon the
certainty of guilt. Absolute certainty of guilt is not
required by the law to convict anyone of a criminal
offense. However, moral certainty is required in
every proposition of proof requisite to constitute the
offense (Mupas v. People, G.R. No. 172834).
Reason: the slightest possibility of an
innocent man being convicted for an
offense he has not committed would be far
more dreadful than letting a guilty person
go unpunished for a crime he may have
perpetrated.
Equipoise/ Equiponderance Rule
Where the evidence of the parties in a criminal case
is evenly balanced, the constitutional presumption
491
of innocence is not overthrown. Thus, the accused
must be acquitted.
Exception to the Presumption Of Innocence
The legislature may enact certain conditions, which,
if proved, shall constitute as prima facie evidence of
guilt of the accused. The burden of proof, then,
shifts to the accused to prove his innocence. Prima
facie evidence of guilt must have a rational
connection between the facts proven and the
ultimate fact presumed. The inference of one from
the proof of the others is not unreasonable and
arbitrary because of the lack of connection between
the two in common experience. (People v. Mingoa,
G.R. No. L-5371, 1953) For example, technical
malversation.
Note: In cases of self-defense, the person who
invokes self-defense is presumed guilty. In this case
a REVERSE TRIAL will be held.
B. To be informed of the nature and the
cause of the accusation against him
The right requires that the information should state
the facts and the circumstances constituting the
crime charged in such a way that a person of
common understanding may easily comprehend
and be informed of what it is about.
An accused may not be convicted of an offense
unless it is clearly charged in the complaint or
information. To convict him of an offense other than
that charged in the complaint or information would
be a violation of an accused’s constitutional right.
(People v. Ortega, Jr., G.R. No. 116736, 1997)
When a person is charged in a complaint with a
crime and the evidence does not show that he is
guilty thereof, but of some other crime or of a lesser
offense, the court may sentence him for the lesser
offense, PROVIDED that the essential ingredients
of the offense charged form part of the elements of
the offense proven. (People v. Noque, G.R. No.
175319, 2010)
This right is subject to waiver if counsel did not
object and did not inform the court of the
deficiencies in the complaint or information. If the
accused actively participated in the trial, this
indicates that the accused was fully aware of the
charges against him. (People v. Pangilinan, G.R.
No. 171020, 2007)
Failure to file a motion to quash the information is
not a waiver of the right to be informed. (Burgos v.
Sandiganbayan, G.R. No. 123144, 2003)
Any qualifying or aggravating circumstances must
be ALLEGED and PROVED in order to be
considered by the court.
While it is necessary to allege the essential
elements of the crime in the information, the failure
to do so is not an irremediable vice. When the
complaint or the resolution by the public prosecutor
which contain the missing averments is attached to
the information and forms part of the records, the
defect in the latter is effectively cured, and the
accused cannot successfully invoke the defense
that his right to be informed is violated. In a case
involving Anti-Child Abuse Law, the averment of
age when attached to the Complaint and mentioned
in the Information was considered as not violative of
the accused’s right to be informed. (Olivarez v. CA,
G.R. No. 163866, 2005)
C. To be present and defend in person and
by counsel at every stage of the
proceeding
Presence of The Accused Is Required
1. During arraignment. (Rule 116, Section 1[b])
2. Promulgation of judgment EXCEPT when the
conviction is for a light offense, in which case, it
may be pronounced in the presence of his
counsel or representative.
3. When ordered by the court for purpose of
identification.
Not Applicable In the SC and CA
The right of an accused to be present at every
stage at the proceedings has no application before
the Court of Appeals and the Supreme Court or to
the entry and promulgation of judgments. The
defendant need not be present during the hearing of
the appeal. (Rule124, Section 9)
The accused may waive his right to be present
during the trial. However, his presence may be
492
compelled when he is to be identified. (Aquino v.
Military Commission, G.R. No. L-37364, 1975)
Effects of waiver of the right to appear by the
accused
1. Waiver of the right to present
evidence
2. Prosecution can present evidence
if the accused fails to appear
3. The court can decide without the
evidence of the accused
Trial in absentia
The provision of the Constitution authorizing the trial
in absentia of the accused in case of his non-
appearance AFTER ARRAIGNMENT despite due
notice simply means that he waives his right to
meet the witnesses face to face, among others.
Such waiver of a right of the accused does not
mean a release of the accused from his obligation
under bond to appear in court when so required.
The accused may waive his right but not his duty or
obligation to the court.
Requirements For Trial In Absentia (ANU)
1. Accused has been arraigned
2. He has been duly notified of the trial
3. His failure to appear is unjustified
An escapee who has been duly tried in absentia
waives his right to present evidence on his own
behalf and to confront and cross-examine witnesses
that have testified against him. (Gimenez v.
Nazareno, G.R. No. L-37933, 1988)
Right to Counsel
Without the aid of counsel, a person may be
convicted, not because he is guilty but because he
does not know how to establish his innocence.
The right covers custodial investigation up to the
rendition of judgment and even on appeal. The right
to counsel can be invoked at any stage of the
proceedings, even on appeal. (People v. Serzo, Jr.,
G.R. No. 118435, 1997)
Custodial Investigation
It is the questioning by law enforcement officers of a
SUSPECT taken into custody or otherwise deprived
of his freedom of action in a significant way. It
includes the practice of issuing an “invitation” to a
person who is investigated in connection with an
offense he is suspected to have committed. (R.A.
No. 7438)
The stage of investigation where the police
investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a
particular suspect taken into custody by the police,
who carry out a process of interrogation that lends
itself to elicit incriminating statements. (People v.
Sunga, G.R. No. 126029, 2003)
If during the investigation the assisting lawyer
leaves, comes and goes, the statement signed by
the accused is still inadmissible because the lawyer
should assist his client from the time the confessant
answers the first question asked by the
investigating officer until the signing of the
extrajudicial confession. (People v. Morial, G.R. No.
129295, 2001)
The right to counsel and the right to remain silent do
not cease even after a criminal
complaint/information has already been filed against
the accused AS LONG AS he is still in custody.
The duty of the court to appoint a counsel de oficio
(when the accused has no legal counsel of choice
and a desire to employ one) is MANDATORY only
at the time of ARRAIGNMENT (Rule 116, Section
6). However, no such duty exists where the
accused has proceeded to arraignment and then
trial with a counsel of his own choice. Thus the
failure of petitioner’s newly hired lawyer to appear at
the subsequent hearings without reason was
sufficient legal basis for the trial court to order the
striking from the records of his direct testimony. At
the most, the appointment of a counsel de oficio in
such situation is discretionary, which discretion will
not be interfered with in the absence of grave abuse
(People v. Libuit, G.R. No. 154363, 2005 )
Difference between the right to counsel during
custodial investigation and during the trial
1. During trial – the right to counsel means
EFFECTIVE counsel. Counsel is present not to
prevent the accused from confessing but to
defend the accused.
2. Custodial Investigation – stricter
requirement, it requires the presence of
COMPETENT and INDEPENDENT counsel
who is preferably the choice of the accused.
Since a custodial investigation is not done in
public, there is a danger that confessions can
be exacted against the will of the accused.
493

Right to Counsel is Not Absolute
The right to counsel is NOT ABSOLUTE — it is
subject to being exercised within a reasonable time
and manner. (Larranaga v. Ca, G.R. No. 130644,
1997)
The accused cannot insist on one that he cannot
afford, one who is not a member of the bar and one
who declines for a valid reason such as conflict of
interest. (People v. Serzo, Jr., G.R. No. 118435,
1997)
Waiver of Right to Counsel
This is when the accused voluntarily submits
himself to the jurisdiction of the court and proceeds
with his defense.
Jurisprudence provides that the defendant cannot
raise the question of his right to have an attorney
the first time on appeal.
The accused may defend himself in person only if
the court is convinced that he can properly protect
his rights even without the assistance of counsel.
If the question is not raised in the trial court, the
prosecution may go to trial. (US v. Escalante, G.R.
No. L-12442, 1917)
The question will not be considered in the appellate
court for the first time when the accused fails to
raise it in the lower court. (People v. Nang Kay,
G.R. No. L-3565, 1951)
The mistake of counsel will bind his client. The only
exception is when the counsel represents himself
as a lawyer and is not one because in that case the
accused is denied of his right to counsel and due
process. (Delgado v. CA, G.R. No. L-46392, 1986)
D. To testify as a witness in his own behalf
A denial of the defendant’s right to testify on his
own behalf would constitute an unjustifiable
violation of his constitutional right. (People v.
Santiago, G.R. No. 17584, 1922)
If the accused testifies, he may be cross-examined
ONLY on matters covered by his direct
examination, unlike an ordinary witness who can be
cross-examined as to any matter stated in the direct
examination or connected therewith. (Rule 132,
Section 6)
His failure to testify will not be taken against him but
his failure to present evidence in his behalf shall be
taken against him. (US v. Bay, G.R. No. L-9341,
1914)
The testimony of an accused who testifies on his
own behalf but refuses to be cross-examined will
not be given weight and will have no probative
value because the prosecution will not be able to
test its credibility.
E. Right against self-incrimination
The scope of this right covers only testimonial
compulsion and not the compulsion to produce
real and physical evidence using the body of the
accused.
DNA TESTING is not covered under the right
against self-incrimination (Herrera v. Alba G.R. No.
148220, 2005).
494
 WITNESS

Rationale for protecting the right against self- May refuse to take the May be compelled to
incrimination: witness stand and take the witness
1. Humanitarian reasons, to prevent the state refuse to answer any stand and is only
from using its coercive powers. and all questions allowed to claim the
2. Practical reasons- the accused is more likely to privilege as each and
commit perjury. every incriminating
question is thrown at
The accused is protected under this rule from him
questions that tend to incriminate him, which means
those that may subject him to penal liability.

The right may be waived by the failure of the

accused to invoke the privilege at the proper time.
The proper time to invoke this privilege is AFTER
the incriminating question is asked and BEFORE However, if the accused
his answer. testifies in his own
behalf, then he may be
The privilege involves a prohibition against cross-examined as any
testimonial compulsion and the production by the other witness on
accused of incriminating documents and articles matters covered by his
demanded off him. (US v. Tan Teng, G.R. No. direct examination. He
7081, 1912) may NOT, on cross
examination, refuse to
answer any question on
the ground that the
answer he will give or
that the evidence he will
produce would have the
tendency to incriminate
Exception/s: Immunity statutes such as: him for the crime
1. R.A. 1379 (Forfeiture of illegally obtained charged against him.
wealth)
2. R.A. 749 (Bribery and Graft cases)

Right of the accused vs. Right of an ordinary

witness When Accused May Refuse to Answer:
1. Questions on his past criminality only if he can
still be prosecuted for it
2. Questions incriminating him for an offense
distinct from that for which he is charged

Rights of the Accused in the Matter of Testifying

ACCUSED ORDINARY or Producing Evidence
Even before the case is filed in court but after the
suspect has been taken into custody or otherwise

495
deprived of liberty, the suspect has the following subsequent
rights: prosecution of a
1. Right to be informed of the cause of his arrest; crime against him
2. Right to remain silent and to counsel;
3. Right not to be subjected to force or violence or
any other means which vitiate free will; and
4. Right to have evidence, which was obtained in
violation of these rights, be deemed
inadmissible.
Witness can still be Witness cannot be
prosecuted but the prosecuted at all
compelled testimony
cannot be used
against him.

In addition to the rights above, after the case is

filed in court, the accused has the following
rights: General Rule: Silence or refusal to testify should
1. Right to be informed of the nature and the not prejudice the accused.
cause of the accusation against him;
2. Right to refuse to take the witness stand;
3. Right not to be prejudiced by such refusal to
take the witness stand;
4. Right to testify on his own behalf subject to
cross-examination by the prosecution on
matters taken up during direct examination;
and Exception/s: Unfavorable inference is drawn
5. While testifying, the right to refuse a specific when:
question which tends to incriminate him for
some other crime.

(a) The prosecution has already

established a prima facie case, the
accused must present proof to
overturn the evidence
(b) The defense of the accused is an
alibi and he does not testify, the
USE IMMUNITY TRANSACTIONAL interference is that the alibi is not
IMMUNITY believable.

Witness’ compelled Witness immune from

testimony and the prosecution of a crime F. Right to confront and cross examine
fruits thereof cannot to which his compelled witnesses against him at trial (Right of
be used in testimony relates. Confrontation)

496

CONFRONTATION is the act of setting a witness
face to face with the accused so that the latter may
make any objection he has to the witness, and the
witness may identify the accused, and this must
take place in the presence of the court having
jurisdiction to permit the privilege of cross
examination.
Purpose
The main purpose of this right to confrontation is (1)
to secure the opportunity of cross examination and
the second purpose is (2) to enable the judge to
observe the demeanor of the witness.
When witness is deceased or cannot be reached
with due diligence
By way of exception to this rule, it is provided that
the court may utilize, as part of its evidence, the
testimony of a witness who is deceased, out of or
with due diligence cannot be found in the
Philippines, unavailable or otherwise unable to
testify, given in another proceeding, judicial or
administrative, involving the same parties and
subject matter, the adverse party having had the
opportunity to cross-examine him (Rule 130, Sec
47).
Waiver Of Right To Confrontation
1. May be done expressly or impliedly
2. It is implied when the accused waives his right
to be present at trial or when he was given the
opportunity but fails to take advantage of it.
G. To have compulsory process issued to
secure the attendance of witnesses and
production of other evidence in his
behalf
The right of the accused to have a subpoena and/or
a subpoena duces tecum issued in his behalf in
order to compel the attendance of witnesses and
the production of other evidence.
If a witness refuses to testify when required, he is in
contempt of court. The court may order a witness to
give bail or to be arrested.
H. Right to speedy, impartial and public
trial (SIP)
The right to a speedy trial is intended to avoid
oppression and to prevent delay by imposing on the
courts and on the prosecution an obligation to
proceed with reasonable dispatch.
Facts considered in determining if right to
speedy trial has been violated:
1. Length of the delay;
2. Reason for the delay;
3. The accused’s assertion or non-assertion of the
right; and
4. Prejudice to the accused resulting from the
delay
The limitation of this right is that the State must not
be deprived of its day in court and the right of the
State and the prosecution of due process must be
respected.
There is NO violation of the right where the delay is
imputable to the accused. (Solis v. Agloro, G.R. No.
L-39254, 1975)
The right to a speedy trial is violated when there are
UNJUSTIFIED postponements. (People v. Declaro,
G.R. No. L-64362, 1989)
The Speedy Trial Act of 1998 (RA 8493)
Duty of the Court after the Arraignment of the
Accused
The court SHALL order a pre-trial conference to
consider the following:
1. Plea bargaining;
2. Stipulation of facts;
3. Marking and identification of evidence;
4. Waiver of objections to admissibility of
evidence; and
497
 5. Such other matters as will promote a fair
and expeditious trial.
Time Limit for the Trial of Criminal Cases
General Rule: Trial shall not exceed 180 days from
the first day of trial, however the rule is not
absolute.
Exception/s:
1. Those governed by the Rules on Summary
Procedure;
2. Where the penalty prescribed by law does NOT
exceed 6 months imprisonment or a fine of
P1,000 or both; and
3. Those authorized by the Chief Justice of the
SC.
Period of Arraignment of the Accused
Within 30 days from the filing of the information, or
from the date the accused appeared before the
court in which the charge is pending, whichever
date last occurs. (Speedy Trial Act, Section 7)
Unless a shorter period is provided by special law
or Supreme Court circular, the arraignment shall be
held within thirty (30) days from the date the court
acquires jurisdiction over the person of the accused.
(Rule 116, Section 1[g])
When shall Trial Commence after Arraignment
Within 30 days from arraignment; HOWEVER, it
may be extended BUT only:
1. For the 180 days for the first 12 calendar month
period from the effectivity of the law;
2. 120 days for the second 12-month period; and
3. 80 days for the third 12-month period.
Remedies available to the accused when his
right to a speedy trial is violated
1. He should ask for the trial of the case, not the
dismissal.
2. Unreasonable delay of the trial of a criminal
case as to make the detention of the defendant
illegal gives ground for habeas corpus as a
remedy for obtaining release as to avoid
detention for a reasonable period of time.
3. Accused would be entitled to relief in a
mandamus proceeding to compel the dismissal
of the information.
4. Ask for the trial of the case and then move to
dismiss. (Gandicela v. Lutero, G.R. No. L-4069,
1951).
Impartial Trial
Due process requires a hearing before an impartial
and disinterested tribunal and that every litigant is
entitled to nothing less that the cold neutrality of an
impartial judge. (Mateo, Jr. v. VIllaluz, G.R. No. L-
34756-59, 1973).
Public Trial
One held openly or publicly; anyone interested in
observing the way the judge conducts his
proceedings in a courtroom may do so. (Garcia v.
Domingo, G.R. No. L-30104, 1973)
It is sufficient that relatives and friends who want to
watch the proceedings are given the opportunity to
witness the proceedings. It is done in public to
prevent abuses that may be committed by the court
and the accused is entitled to moral support from
his friends and relatives. If it is done in the judge's
chambers, it is still valid because the public is not
excluded. (Garcia v. Domingo, G.R. No. L-30104,
1973)
Exclusion of the public is valid when:
1. Evidence to be produced is offensive to
decency or public morals; and
2. Upon motion of the accused (Rule 119, Section
21)
Rule on trial by publicity
The right of the accused to a fair trial is NOT
incompatible with free press. Pervasive publicity is
not per se as prejudicial to the right to a fair trial. To
warrant the finding of prejudicial publicity, there
must be allegations and proof that judges have
been unduly influenced and not simply that they
might be due to the barrage of publicity. (People v.
Teehankee, G.R. Nos. 111206-08, 1995)
Right to appeal on all cases allowed by law and
in the manner prescribed by law
The right to appeal from a judgment of the
conviction is fundamentally of statutory origin. It is
not a matter of absolute right that is independent of
constitutional or statutory provisions allowing such
appeal.
Waiver of right to appeal
The right to appeal is personal to the accused and it
may be waived either expressly or by implication.
HOWEVER, where the death penalty is imposed,
such right cannot be waived as the review of the
judgment by the SUPREM. COURT is automatic
and mandatory. (A.M. No. 00-5-03 SC)
498
Anyone who seeks to exercise the right to appeal
must comply with the requirements of the rules.
Otherwise the right to appeal is lost. (Ozaeta v. CA,
G.R. No. 83281, 1989)
When the accused flees, after the case has been
submitted to court for decision, he will be deemed to
have waived his right to appeal from the judgment
rendered against him. (People v. AngGioc, G.R. No.
L-48547, 1941)
Note: Such may not be reviewed by the CA.
2. RIGHTS OF A PERSON UNDER
CUSTODIAL INVESTIGATION
R.A. 7438 defined the rights of persons arrested,
detained or under custodial investigation with
the penalties for violation thereof.
Custodial Investigation
Involves any questioning initiated by law
enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of
action in any significant way.
When RA 7438 applies
It is only after investigation ceases to be a general
inquiry into an unsolved crime and begins to focus
on a particular suspect, that the suspect is taken
into custody, and the police carry out a process of
interrogations that lends itself to eliciting
incriminating statements that the rule begins to
operate.
Embraced in custodial investigation:
1. Invited for questioning
2. Re-enactment
It does not apply during in-custody investigation, nor
can it prevail over the constitutional right of the
accused to be presumed innocent.
The arresting officer may be held civilly liable for
damages under Art. 32 of the Civil Code. The very
nature of Art. 32 is that the wrong may be civil or
criminal. It is not necessary that there should be
malice or bad faith.
On CIVIL PROCEDURE, as applicable to criminal
cases
Section 20 Rule 14 of the 1997 Rules of Civil
Procedure provides in part that the inclusion in a
motion to dismiss of other grounds aside from lack
of jurisdiction over the person of the defendant shall
not be deemed a voluntary appearance. Section 8
Rule 15 provides that subject to the provisions of
Section 1 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.
These changes in the 1997 Rules of Civil Procedure
are applicable to criminal cases as Section 3 Rule 1
thereof provides that “these rules shall govern the
procedure to be observed in actions, civil or
criminal, and special proceedings.” Moreover, the
omnibus motion rule applies to motions to quash.
Section 26 of Rule 114 of the New Rules of Criminal
Procedure provides that bail is not a bar to objection
on illegal arrest, lack of or irregular preliminary
investigation. This is an abandonment of the
Cojuangco, Jr. v. Sandiganbayan ruling.
END OF TOPIC

Not embraced in custodial investigation:

1. Police line-up
2. Ultraviolet ray examination
3. Normal audit examination by the COA of the
accountability of a public officer H. ARRAIGNMENT AND PLEA
When the threat or promise was made by, or in the
presence of, a person in authority, who has, OR is
supposed by the accused to have power or
authority to fulfill the threat or promise, the
confession of the accused is inadmissible. 1. ARRAIGNMENT AND PLEA, HOW
MADE
Presumption of regularity in the performance of
duties
2. WHEN SHOULD PLEA OF NOT
GUILTY BE ENTERED

499
3. WHEN MAY ACCUSED ENTER A 3. By furnishing the accused with a copy of the
complaint or information
PLEA OF GUILTY TO A LESSER 4. Reading it in a language or dialect known to
OFFENSE the accused
a. Plea bargaining 5. Asking accused whether he pleads guilty or
b. Plea to lesser offense during not guilty
arraignment
c. Plea to lesser after arraignment but When Arraignment Should Be Held
before trial Accused should be arraigned within 30 days from
d. Plea to lesser offense after trial has the date the court acquires jurisdiction over his
begun person, unless a shorter period is provided for by
4. ACCUSED PLEAD GUILTY TO law. The time of the pendency of a motion to quash
or a bill of particulars or other causes justifying
CAPITAL OFFENSE, WHAT THE suspension of arraignment shall be excluded in
COURT SHOULD DO computing the period.
5. SEARCHING INQUIRY
When Arraignment is Held Within a Shorter
6. IMPROVIDENT PLEA Period:
a. Effects of improvident plea 1. When an accused is under preventive
b. Plea of guilty to a non-capital offense detention, his case should be raffled within 3
c. Plea of guilty to a capital offense days from filing and accused shall be arraigned
d. Withdrawal of improvident plea of guilty within 10 days from receipt by the judge of the
7. GROUNDS FOR SUSPENSION records of the case. (R.A. 8493 Speedy Trial
OF ARRAIGNMENT Act)
2. Where the complainant is about to depart
8. DEFENSES/ REMEDIES CUT OFF from the Philippines with no definite date of
BY ARRAIGNMENT return, the accused should be arraigned
without delay. (R.A. 4908)
3. Cases under R.A. 7610 (Child Abuse Act), the
trial shall be commenced within 3 days from
1. ARRAIGNMENT AND PLEA, HOW arraignment.
MADE (Rule 116) 4. Cases under the Dangerous Drugs Act
5. Cases under SC AO 104-96, i.e., heinous
ARRAIGNMENT means the proceeding in a crimes, violations of the Intellectual
criminal case, whose object is to fix the identity of Property Rights Law, these cases must be
the accused, to inform him of the charge and to give tried continuously until terminated within 60
him an opportunity to plead, or to obtain from the days from commencement of the trial and to be
accused his answer, in other words, his plea to the decided within 30 days from the submission of
information. (People v. Pillado, G.R. No. L-7254, the case
1954)
Notes:
It is at this state wherein the mode and manner Trial in absentia may be conducted only after valid
required by the Rules, an accused, for the first time arraignment.
is granted the opportunity to know the precise
charge that confronts him. Accused must personally appear during
arraignment and enter his plea (counsel cannot
Purpose: The procedural due process mandate of enter plea for accused)
the Constitution requires that the accused be
arraigned so that he may be informed as to why he Accused is presumed to have been validly
was indicted and what penal offense he has to face, arraigned in the absence of proof to the contrary
to be convicted only on a showing that his guilt is
proved beyond reasonable doubt with full Generally, judgment is void if accused has not been
opportunity to disprove the evidence against him. validly arraigned.

How Arraignment is Made: If accused went into trial without being arraigned,
1. In open court where the complaint or subsequent arraignment will cure the error
information has been filed or assigned for trial
2. By the judge or clerk of court

500
provided that the accused was able to present
evidence and cross-examine the witnesses of the
prosecution during trial.
2. WHEN A PLEA OF “NOT GUILTY”
WILL BE ENTERED
A plea of “not guilty” will be entered:
1. When accused so pleaded
2. When he refuses to plead
3. When he makes a conditional or qualified plea
of guilt (Ex. Accused pleads guilty but adds
“pero hindi ko sinasadya”)
4. When the plea is indefinite or ambiguous
5. When he pleads guilty but presents exculpatory
evidence (ex. Evidence to prove complete self-
defense)
Note: If the accused who pleaded guilty presents
exculpatory evidence, his plea of guilty is deemed
withdrawn. The judge must order the accused to
plead again or at least direct that a new plea of “not
guilty” be entered for him, otherwise there shall be
no standing plea for the accused. This is significant
because if there is no standing plea, the accused
cannot invoke double jeopardy later on.
Presence of Offended Party
The private offended party is required to appear in
the arraignment for the purpose of plea bargaining,
determination of civil liability and other matters
requiring his presence.
In case the offended party fails to appear despite
due notice, the trial court may allow the accused to
plead guilty to a lesser offense necessarily included
in the offense charged with the conformity of the
trial prosecutor alone.
3. WHEN ACCUSED MAY ENTER A
PLEA OF GUILTY TO A LESSER
OFFENSE
PLEA BARGAINING is the process whereby the
accused, the offended party and the prosecution
work out a mutually satisfactory disposition of the
case subject to the court’s approval.
It usually involves the defendant’s pleading guilty to
a lesser offense or to only one or some of the
counts of a multi-count indictment in return for a
lighter sentence than that for the graver charge.
Only facts, and not conclusions of law alleged in the
information, are admitted by a plea of guilty.
(People v. De la Cruz, G.R. No. L-2204, 1948). A
plea of guilty to an information alleging aggravating
or qualifying circumstances will not be considered
an admission of said circumstances if the evidence
subsequently presented by the prosecution fails to
prove the same. (People v. Comendador, G.R. No.
L-38756, 1984)
It precludes the filing and prosecution of the offense
originally charged in the information, except when
the plea of guilty to a lesser offense is without the
consent of the offended party and the prosecutor.
Plea to Lesser Offense During Arraignment
During arraignment, the accused may enter a plea
of guilty to a lesser offense PROVIDED there is
consent of the offended party AND of the
prosecutor to the plea of guilty to a lesser offense
that is necessarily included in the offense charged.
The accused may also enter a plea of guilty to a
lesser offense if the offended party was notified and
did not appear in the arraignment of the accused.
Plea to Lesser After Arraignment But Before
Trial
After arraignment but BEFORE trial, the accused
may still be allowed to plead guilty to a lesser
offense after withdrawing his previous plea of not
guilty. No amendment to the complaint or
information is necessary.
Plea to Lesser Offense after Trial Has Begun
After the prosecution has rested its case, a change
of plea to a lesser offense may be granted by the
judge, with the approval of the prosecutor and the
offended party if the prosecution does not have
sufficient evidence to establish the guilt of the
accused for the crime charged. The judge cannot
on its own grant the change of plea.
Presence and Consent of the Offended Party
The consent of the offended party is necessary
before the accused may be allowed to plead guilty
to a lesser offense. If the plea of guilty to a lesser
offense is made without the consent of the
501
prosecutor and the offended party, 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
information (No double jeopardy).
If the offended party fails to appear during
arraignment, the court may allow the accused to
plead guilty to a lesser offense with the conformity
of the trial prosecutor alone.
4. ACCUSED PLEADS GUILTY TO
CAPITAL OFFENSE, WHAT THE
COURT SHOULD DO
IMPROVIDENT PLEA is a plea without information
as to all the circumstances affecting it; based upon
a mistaken assumption or misleading information or
advice.
Duty of the Court When Accused Pleads Guilty
to a Capital Offense:
1. Conduct a searching inquiry into the
voluntariness and full comprehension of the
consequences of the plea.
2. Require prosecution to present evidence to
prove the guilt and precise degree of culpability
of the accused.
3. Ask the accused if he desires to present
evidence in his behalf and allow him to do so if
he desires.
5. SEARCHING INQUIRY
Elements of “Searching Inquiry”
1. Judge must convince himself that accused
is entering the plea voluntarily and intelligently.
2. Judge must convince himself that there
exists a rational basis for the finding of guilt
based on accused’s testimony.
3. Inform the accused of the exact length of
imprisonment and the certainty that he will
serve it in a national penitentiary.
6. IMPROVIDENT PLEA
Effects of Improvident Plea
The conviction will be set aside if the plea of guilty
is the sole basis for the judgment.
But, the court may validly convict the accused if
such conviction is supported by adequate evidence
of guilt independent of the plea itself.
Consequences of Plea of Guilty
As a rule, a plea of guilty is an UNQUALIFIED
ADMISSION of the crime and of the attending
circumstances (aggravating and/or qualifying)
alleged in the complaint.
No Need for Further Evidence
Such plea removes the necessity of presenting
further evidence and for all intents and purposes the
case is deemed tried on its merits and submitted for
decision.
Mitigating and Aggravating Circumstances
However, the court may, upon motion, allow the
presentation of evidence to prove aggravating and
mitigating circumstances.
The trial court may allow an accused to plead guilty
and at the same time allow him to prove other
mitigating circumstances. However, if what the
accused would prove is an exempting
circumstance, which would amount to a withdrawal
of his plea of not guilty.
Plea of Guilty to a Non-Capital Offense
If the accused is permitted to present evidence after
his plea of guilty to a non-capital offense and such
shows that the accused is not guilty of the crime
charged, the accused must be acquitted, for there is
no rule which provides that simply because the
accused pleaded guilty to the charge that his
conviction automatically follows. Additional
evidence independent of the plea may be
considered to convince the judge that it was
intelligently made.
For non-capital offenses, the reception of evidence
is merely discretionary on the part of the court. If the
information or complaint is sufficient for the judge to
render judgment on a non-capital offense, he may
do so.
Plea of Guilty to a Capital Offense
But if the case involves a capital offense, the
reception of evidence to prove the guilt and degree
of culpability of the accused is mandatory.
Withdrawal of Improvident Plea of Guilty
502

At any time before judgment of conviction becomes
final, the court may permit an IMPROVIDENT PLEA
of guilty to be withdrawn and be substituted by a
plea of not guilty.
The substitution of a plea of guilty by one of not
guilty is subject to the discretion of the court and
may be granted if the prosecution does not have
sufficient evidence to establish the guilt of the
accused. (People v. Kayanan, G.R. No. L-30355,
1978)
Instances of Improvident Plea:
1. Plea of guilty was compelled by violence or
intimidation
2. Accused did not fully understand the meaning
and consequences of his plea
3. Insufficient information to sustain conviction of
the offense charged
4. Information does not charge an offense
5. Court has no jurisdiction
The withdrawal of a plea of guilty is not a matter of
right to the accused but of sound discretion to the
trial court. (People v. Lambino, G.R. No. L-10875,
1958)
There should be a categorical declaration from the
accused that he is withdrawing his plea of guilty and
substituting it with a plea of not guilty. There must
either be a motion to withdraw his plea of guilty or
any unequivocal manifestation of the withdrawal of
such plea. Convictions based on an improvident
plea of guilty are set aside only if such plea is the
sole basis of the judgment. If the trial court relied on
sufficient and credible evidence to convict the
accused, the conviction must be sustained. (People
v. Solamillo, G.R. No. 123161, 2003)
The reason behind the rules is that trial has already
begun and the withdrawal of the plea will change
the theory of the case and put all past proceedings
to waste. Moreover, at this point, there is a
presumption that the plea was made voluntarily.
Four-Fold Duty of Court when Accused Appears
without Counsel:
1. INFORM the defendant that he has a right to
an attorney before being arraigned
2. After informing him, court must ASK the
defendant if he desires to have the aid of an
attorney
3. If he desires but is unable to employ one, the
court must ASSIGN an attorney de oficio to
defend him
4. If the accused desires to procure an attorney of
his own, the court must grant him
REASONABLE TIME to do so
Failure to comply with this 4-fold duty amounts to a
violation due process
COUNSEL DE OFICIO is counsel appointed by the
court to represent and defend the accused in case
he cannot afford to employ one himself
Who May Be Appointed Counsel De Oficio:
1. Members of the bar in good standing who can
competently defend the accused
2. In localities where such members of the bar are
not available, any resident of the province of
good repute for probity and ability.
Duty of the Court to Appoint Counsel During
Arraignment and During Trial
During arraignment, the court has an affirmative
duty to inform the accused of his right to counsel
and to provide him with one in case he cannot
afford it. The court must act on its own volition
unless the right is waived by the accused.
During trial, it is the accused who must assert his
right to counsel. The court will not act unless the
accused invokes his rights.
What Constitutes “Reasonable Time”
It depends on the circumstances surrounding the
case such as the gravity of the offense, complexity
of the allegations, whether a motion to quash or a
bill of particulars has to be filed, etc.
Generally, reasonable time to prepare for trial is
between 2-15 days.
The accused has at least 15 to 30 days from receipt
of pre-trial order to prepare for trial (Rule 119,
Section 1).
Generally, reasonably time to prepare for
arraignment is 30 minutes to 1 hour.
Note: Counsel for the accused must expressly
demand the right to be given reasonable time to
consult with the accused. Only when so demanded
503
does denial thereof constitute reversible error and a prosecution in its possession after obtaining
ground for new trial. permission of the court.

Bill of Particulars The purpose of such right is to prevent surprises to

Accused must move for a bill of particulars
BEFORE arraignment to enable him to properly
plead and prepare for trial, otherwise it is deemed
waived.
The motion for bill of particulars must contain:
1. Alleged defects in the complaint or information
and
2. Details desired.
the accused and the suppression or alteration of
evidence.
Such right is available even during preliminary
investigation when such is necessary to protect the
constitutional right to life, liberty and property of the
accused. It enables the respondent to obtain
evidence which he could incorporate in the counter-
affidavits or to substantiate his allegations therein.

Rule 12 on Bill of Particulars applies by analogy to The rules applicable for the right to modes of
Bill of Particulars as provided in Section 9 of Rule discovery in criminal case is Section 12 and 13 of
116. Rule 119. Rules 23 to 29 of the Rules of Court is
not applicable.
The remedy against an information that fails to
allege the time of the commission of the crime with 7. GROUNDS FOR SUSPENSION OF
sufficient definiteness is a bill of particulars, not a ARRAIGNMENT
motion to quash.
The grounds for suspending arraignment are:
It is Not the Office of the Bill of Particulars to:
1. There exists a prejudicial question
1. Supply material allegation necessary to the
2. Accused appears to be suffering from an
validity of a pleading
unsound mental condition which renders him
2. Change a cause of action or defense stated in
unable to understand the charge against him
the pleading, or to state a cause of action or
and to plead intelligently thereto.
defense other than the one stated.
3. There is a petition for review pending before
3. Set forth the pleader’s theory of his cause of
the DOJ or Office of the President, however the
action or a rule of evidence on which he
period of suspension shall not exceed 60
intends to rely.
days counted from the filing of the petition
4. Furnish evidentiary information whether such
for review.
information consists of evidence which the
pleader proposes to introduce or of facts which
While the pendency of a petition for review is a
constitute a defense or offset for the other party
ground for suspension of the arraignment, the Rules
or which will enable the opposite party to
on Criminal Procedure limits the deferment of the
establish an affirmative defense not yet
arraignment to a period of 60 days reckoned from
pleaded.
the filing of the petition with the reviewing office. It
follows, therefore, that after the expiration of said
The filing of a motion for bill of particulars suspends
period, the trial court is bound to arraign the
the period to file a responsive pleading.
accused or to deny the motion to defer arraignment.
(Aguinaldo vs. Ventus, GR No. 176033, 2015)
If the motion is granted, the moving party has the
remaining period or at least 5 days to file his answer
Note: Other grounds for suspension include
from service of the bill of particulars.
pending incidents like motion to quash, motion for
inhibition, motion for bill of particulars.
If the motion is denied, he has the same period to
file his responsive pleading from receipt of the order
END OF TOPIC
denying the motion.

Right to Modes of Discovery

This is the right of the accused to move for the
production of material evidence in the possession of
the prosecution. It authorizes the defense to
inspect, copy or photograph any evidence of the

504

I. MOTION TO QUASH
1. GROUNDS
2. DISTINGUISH FROM DEMURRER
TO EVIDENCE
3. EFFECTS OF SUSTAINING THE
MOTION TO QUASH
4. EXCEPTION TO THE RULE THAT
SUSTAINING THE MOTION IS NOT
A BAR TO ANOTHER
PROSECUTION
5. DOUBLE JEOPARDY
6. PROVISIONAL DISMISSAL
Motion to Quash is a special pleading filed by the
defendant before entering his plea, which
hypothetically admits the truth of the facts spelled
out in the complaint or information at the same time
that it sets up a matter which, if duly proved, would
preclude further proceedings. By a motion to quash,
the defendant assumes the facts alleged in the
information to be true. (People v. Lim Hoa, G.R. No.
L-10612, 1958)
An order denying a motion to quash is interlocutory
in character and absent a clear showing that the
judge has committed a grave abuse of discretion or
acted in excess of jurisdiction, the order is not
appealable.
4. Officer who filed the information had no
authority to do so
5. Does not conform substantially to the
prescribed form
6. More than one offense is charged except when
a single punishment for various offense is
prescribed by law
7. Criminal action or liability has been
extinguished by prescription
8. Contains averments w/c, if true, would
constitute a legal excuse or justification
9. Accused has been previously convicted or
acquitted of offense charged, or case has been
dismissed or otherwise terminated w/o the
express consent of the accused (double
jeopardy)
An affidavit of desistance or pardon is not a ground
for the dismissal of an action, once it has been
instituted in court. (People v. Salazar, G.R. No.
181900, 2010)
Facts Charged Do Not Constitute an Offense
The test for the correctness of this ground is the
sufficiency of the averments in the information, that
is, whether the facts alleged, if hypothetically
admitted, constitute the elements of the offense.
Note: The court in resolving the motion cannot
consider –
1. Facts contrary to those alleged in the
information
2. Facts w/c do not appear on the face of the
information

Time to move to quash

May be filed only before the accused has entered
his plea to the accusatory pleading, except when
Except: Those admitted by the prosecution.
the same does not charge an offense or where the
court has no jurisdiction over the case or when the
Officer who Filed the Information Had No
offense or penalty had already been extinguished,
Authority to Do So
or when further prosecuting the accused would
Occurs when a state prosecutor lacked the authority
thereby place him in double jeopardy.
to file the information because there was neither a
directive from the Secretary of Justice designating
1. GROUNDS him as a special prosecutor nor the written approval
of the information by the city prosecutor as required
The grounds to quash the information are: under Section 5, Rule 110 of the Rules of Court.

Does Not Conform Substantially to the

Prescribed Form
1. Facts charged do not constitute an offense
2. Court has no jurisdiction over offense charged
3. Court has no jurisdiction over the person of the
accused

505
The defects contemplated are defects in form, as Based on matters Predicated upon
where the requirements for the sufficiency of found on the complaint matters outside of the
information are not complied with. or information complaint or
information such as the
Prescription evidence or lack of it
The following are the prescriptive periods of the
criminal liability or penalties:
1. Death and reclusion perpetua - 20 years
2. Other afflictive penalties - 15 years
3. Other correctional penalties - 10 years;
however, if penalty is arresto mayor - 5 years
4. Light penalties - 1 year If granted, dismissal of If granted, is deemed
the case will not an acquittal of the
Legal Excuse For Justification necessarily follow accused
The legal excuse or justification referred to are [See Sections 5 and 6
those provided for in the Revised Penal Code: of this Rule, where
1. Justifying circumstances. (Art. 11) another complaint or
2. Exempting circumstances. (Art. 12) information may be
3. Absolutory causes. (Arts. 6 [par.3], 16, 20, 247 filed by order of the
and 332) court]

2. MOTION TO QUASH V. DEMURRER

TO EVIDENCE

If denied by grave If denied, shall not be

abuse of discretion, reviewable by appeal
then certiorari or or certiorari before
prohibition lies judgment but may be
MOTION TO QUASH DEMURRER TO reviewable via Rule 65
EVIDENCE (Choa v. Choa, G.R.
No. 143376.
November 26, 2002).

Filed before the Filed after the

defendant enters his prosecution has rested
plea its case
Forms and Contents
1. In writing
2. Signed by the accused or his counsel
3. Distinctly specify the factual and legal grounds
of the motion

Does not require prior May be filed either w/ Note: Court shall consider no ground other than
leave of court or w/o leave of court what is stated in the motion, except lack of
jurisdiction over the offense charged.

Time for Filing the Motion to Quash

Any time before the accused enters his plea

506
 al., G.R. No. L-16916, 1962).But where the
General Rule: Filing of a motion to quash is not prosecution failed to object and such proof of
allowed in a summary procedure privilege was admitted into the record, quashal was
Exception/s: proper. (People v. Balao, G.R. No. L-22250, 1968)

If the accused had already entered his plea, it is

discretionary on the part of the court to permit him
1. On the ground of lack of jurisdiction over to withdraw that plea in order to file a motion to
the subject matter quash. (Mill v. People, et al., G.R. No. L-10427,
2. Failure to comply w/ the barangay 1957)
conciliation proceedings
3. EFFECTS OF SUSTAINING THE
MOTION TO QUASH

Effect of Failure to Assert Any Ground of a

Motion To Quash Before Pleading to a
Complaint or Information
This failure to assert a ground may either be
because:
1. Accused did not file a motion to quash
2. Accused filed a motion to quash but failed to GROUNDS EFFECT
allege the ground in said motion

General Rule: Failure to assert or timely assert a

motion to quash shall be deemed a waiver of any  Facts charged do not
objections. constitute an offense
 Officer who filed the
information had no Court may order
authority to do so that another
 It does not conform information be filed
substantially to the or an amendment
prescribed form thereof be made
Exception/s: In the following cases, a motion  More than one offense is
to quash cannot be waived and can be filed charged
and entertained at any stage of the
proceedings:  Criminal action or liability
1. Facts charged do not constitute an offense has been extinguished
2. Court has no jurisdiction over offense  Averments would
charged constitute a legal excuse Court must state,
3. Criminal action or liability has been or justification in its order
extinguished  Accused has been granting the
4. Accused has been previously convicted or previously convicted or motion, the
acquitted of offense charged, or case has acquitted of the offense release of the
been dismissed or otherwise terminated charged accused if he is in
w/o express consent of accused custody or the
(defendant has been in former jeopardy) cancellation of his
bond if he is on
bail

Where, in a motion to quash an information for libel,

the prosecution objected to evidence showing the
privileged nature of the communication, the court
cannot quash the case as such defense must be
raised at the trial. (Duque, et al. v. Santiago, etc. et

507
 Court has no jurisdiction A BAR TO ANOTHER
over the offense PROSECUTION
 Court has no jurisdiction
over the person of the Court should General Rule: When a motion to quash is
accused remand or forward sustained, the court may order that another
the case to the complaint or information be filed.
proper court, not to
quash the Exception/s: When the ground relied upon is:
complaint or
information

1. Extinction of criminal action or liability

2. Accused has been previously convicted or
acquitted of the offense charged
3. Case against him was dismissed or
otherwise terminated w/o the accused’s
express consent
IF COURT ORDERS THAT ANOTHER
COMPLAINT OR INFORMATION BE FILED AND
IS –

Denial of a Motion to Quash

A petition for certiorari is not the proper remedy
absent any showing of arbitrariness. The remedy is
for the movant to go to trial w/o prejudice to
reiterating the defenses invoked in the motion to
quash.
NOT ORDERED OR IF
ORDERED AND HAVING ORDERED, NO
MADE NEW INFORMATION IS
FILED

The accused, if in The accused, if in custody,

custody, shall not shall be discharged unless
be discharged he is also in custody for
unless admitted to another charge When Denial May Be Subject of a Petition for
bail Certiorari, Prohibition or Mandamus in Another
Court of Coordinate Rank
In justifiable cases where appellate courts have
intervened to review the lower court’s denial of a
motion to quash (ex. Constitutionality of the statute
which is the basis of the prosecution is assailed or
on jurisdictional grounds raised in the petition).

Granting A Motion To Quash Appealable
An order granting a motion to quash is appealable,
and the accused cannot claim double jeopardy as
the dismissal is procured not only with his consent
but at his own instance.
4. EXCEPTION TO THE RULE THAT
SUSTAINING THE MOTION IS NOT
When Court Shall Order the Amendment of the
Information or Complaint
General Rule: If the motion to quash is based on a
defect which can be cured (ex. Allegations in the
information do not constitute an offense, information
does not conform substantially to the prescribed

508

form), the court shall not immediately grant the
motion but order that an amendment be made.
Exception/s: The motion shall be granted if despite
such opportunity, the prosecution:
1. Fails to make an amendment
2. If despite the amendment, the complaint or
information still suffers from the same
defect
5. DOUBLE JEOPARDY
As a rule, when an accused has been convicted or
acquitted, or the case against him dismissed or
otherwise terminated without his express consent,
the conviction or acquittal shall be a bar to another
prosecution for:
1. The offense charged
2. Any attempt to commit the same or frustration
thereof
3. Any offense which necessarily includes or is
necessarily included in the offense charged
Requisites to Raise Double Jeopardy:
1. First jeopardy must have attached
a. Accused must have been convicted or
acquitted, or the case against him was
dismissed or terminated without his
express consent
b. Made by a court of competent jurisdiction
c. Valid complaint or information
d. Accused has been arraigned
2. First jeopardy must have been validly
terminated
3. The second jeopardy must be for the same
offense or the second offense includes or is
necessarily included in the offense charged in
the first information or is an attempt or
frustration thereof.
When Double Jeopardy Shall Not Apply Despite
a Prior Conviction
1. Graver offense developed due to supervening
facts arising from the same act or omission
constituting the former charge
2. Facts constituting graver charge were
discovered only after a plea was entered in the
former complaint or information
3. Plea of guilty to a lesser offense was made w/o
consent of the prosecutor and of the offended
party except if they fail to appear in any of
these cases, where the accused satisfies or
serves the whole or in part the judgment, he
shall be credited with the same in the event of
conviction for the graver offense.
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.
An offense charged is necessarily included in the
offense proved, when the essential ingredients of
the former form part of those constituting the latter.
Where Double Jeopardy Not Applicable
1. Preliminary investigation stage
2. Administrative cases
3. Civil aspect of the criminal case
Dismissal Must Be Without the Express Consent
of the Accused
General Rule: The termination of the case must be
without the express consent of the accused so that
jeopardy will attach.
Exception/s: Dismissal is equivalent to acquittal
even with the consent of the accused if grounded
on –
1. Speedy trial
2. Demurrer to evidence
Rules Regarding State Witnesses
An order discharging an accused as a state witness
amounts to an acquittal, hence double jeopardy will
apply.
If the state witness fails or refuses to testify against
his co-accused in accordance with his sworn
statement, he may be prosecuted again.
Double Jeopardy in Quasi-Offenses
Once convicted or acquitted of a specific act of
reckless imprudence the accused may not be
prosecuted again for the same act.
Only the single act of recklessness is punished and
not the effect/s thereof (damage to property,
resulting in injury or homicide), for it merely
determines the penalty.
Ex: Conviction of reckless imprudence resulting in
slight physical injuries shall bar prosecution for
reckless imprudence resulting in homicide and
509
damage to property. (Ivler v. Modesto-San Pedro,
G.R. No. 172716, 2010)
6. PROVISIONAL DISMISSAL
Contemplates that the dismissal of the criminal
action is not permanent and can be revived within
the period set by the Rules of Court.
Requisites of a Provisional Dismissal
1. Consent of the prosecutor
2. Consent of the accused;
3. Notice to the offended party; and
4. Public prosecutor is served w/ a copy of the
order of provisional dismissal.
Examples on Grounds on Which Provisional
Dismissal May Be Granted
 Prosecution was not prepared for trial
 Repeated absences in court
 Witness did not appear at the trial
When Provisional Dismissal Becomes
Permanent
The provisional dismissal shall become permanent
if not revived within:
Although the Rules provide that the period shall
commence from “after the issuance” of the order, it
shall be construed to mean as “after the service of
the order of dismissal on the public prosecutor” who
has control of the prosecution. (People v. Lacson,
G.R. No. 149453, 2003)
When New Preliminary Investigation if Case is
Reinstated
1. Original witnesses or some of them recant their
testimony, are no longer available (died), or
when new witnesses have emerged
2. Other persons are charged under the new
complaint
3. Original charge has been upgraded
4. Criminal liability of the accused has been
upgraded (ex. accomplice principal)
Quashal vs. Provisional Dismissal
Quashal and provisional dismissal are different
concepts whose respective rules refer to different
situations that should not be confused with one
another. If the problem relates to an intrinsic or
extrinsic deficiency of the complaint or information,
as shown on its face, the remedy is a motion to
quash under the terms of Section 3, Rule 117. All
other reasons for seeking the dismissal of the
complaint or information, before arraignment and
under the circumstances outlined in Section 8, fall
under provisional dismissal. (Los Baños v. Pedro,
G.R No. 173588, 2009)

END OF TOPIC
Penalty is 6 years 1 year after issuance of
and below, or a fine order
of any amount, or
both

Penalty exceeds 6 2 years after issuance of J. PRE-TRIAL

years order (Rule 118)

When Period Shall Commence

510
1. MATTERS TO BE CONSIDERED
DURING PRE-TRIAL The matters considered in a pre-trial are:
1. Plea bargaining
2. WHAT THE COURT SHOULD DO 2. Stipulation of facts
WHEN PROSECUTION AND 3. Marking for identification of evidence
OFFENDED PARTY AGREE TO THE 4. Waiver of objections to admissibility of
PLEA OFFERED BY THE ACCUSED evidence
5. Modification of the order of trial if the accused
3. PRE-TRIAL AGREEMENT admits the charge but interposes a lawful
4. NON-APPEARANCE DURING PRE- defense
TRIAL 6. Such matters as will promote a fair and
5. PRE-TRIAL ORDER expeditious trial of the criminal and civil aspects
6. REFERRAL OF SOME CASES FOR of the case
COURT ANNEXED MEDIATION AND Plea Bargaining
JUDICIAL DISPUTE RESOLUTION The process whereby the accused, the offended
party, and the prosecution work out a mutually
satisfactory disposition of the case subject to court
approval.

When Pre-Trial Conducted

General Rule: Within 30 days from acquisition of
a. Cases subject to mediation for JDR jurisdiction over the person of the accused AND
b. Salient features of the JDR after arraignment
c. Court-annexed mediation guidelines
Exception/s: When a shorter period is provided in:

1. Special laws
2. Supreme Court circulars

Courts where Pre-Trial is Mandatory

1. Sandiganbayan
2. Regional Trial Court
3. Metropolitan Trial Court, Municipal Trial Court
in Cities, Municipal Trial Court, Municipal
Circuit Trial Court
Purposes of Pre-Trial:
1. To simplify the issues
2. To shape up the testimonial and documentary
evidence
3. To clear the desks for trial
Pre-trial is not a mere technicality in court
proceedings for it serves a vital objective: the
simplification, abbreviation, and expedition of trial, if
not indeed its dispensation. (Tolentino v. Heirs of
Laurel-Ascalon, G.R. No. 181368, 2012)
1. MATTERS CONSIDERED IN A PRE-
TRIAL
2. WHAT THE COURT SHOULD DO
WHEN PROSECUTION AND
OFFENDED PARTY AGREE TO THE
PLEA OFFERED BY THE ACCUSED
Duty of the court when the prosecution and the
offended party agree to the plea offered by the
accused
1. During the pre-trial, the judge shall consider
plea bargaining arrangements except in cases
for violations of the Comprehensive Dangerous
Drugs Act of 2002.
2. If a plea bargaining is agreed upon, the court
shall:
a. Issue an order to that effect;
b. Proceed to receive evidence on the
civil aspect of the case; and
c. Render and promulgate judgment of
conviction, including the civil liability or

511
 damages duly established by the
evidence. (I-B[5], A.M. No. 03-1-09-
SC)
3. PRE-TRIAL AGREEMENT
All agreements or admissions made or entered
during the pre-trial conference shall be:
1. Reduced in writing; AND
2. Signed by the accused AND counsel.
Otherwise, they cannot be used against the
accused. The agreements covering matters in a
pre-trial shall be approved by the court.
But admissions during trial binds the accused even
if it is not in writing or signed.
4. NON-APPEARANCE AT PRE TRIAL
CONFERENCE
The court may impose proper sanction or penalties,
if the counsel or prosecutor absent does NOT offer
an acceptable excuse.
Note: There is NO similar provision on sanctions
and penalties in civil cases.
The absence during pre-trial of any witness for the
prosecution is NOT a valid ground for the dismissal
of a criminal case. The presence of the private
complainant or the complaining witness is not
required. Even the presence of the accused is NOT
required unless directed by the trial court. It is
enough that the accused is represented by his
counsel. (People v. Tac-an, G.R. No. 148000, 2003)
If the counsel for the accused/prosecutor does NOT
appear at the pre-trial conference and does NOT
offer an acceptable excuse for his lack of
cooperation, the court may sanction/penalize
counsel for the accused if any of the following
concur:
1. Counsel does NOT appear at the pre-trial
conference; AND
2. Counsel does NOT offer an acceptable excuse.
(Atty. Emelia H. Garayblas and Atty. Renato G.
dela Cruz v. Hon. Gregory Ong, et al., G.R. No.
174507-30, 2011)
5. PRE-TRIAL ORDER
Issued w/in 10 days after termination of pre-trial
conference (A.M. No. 03-1-09-SC, Guidelines to be
Observed by Trial Court Judges and Clerks of Court
in the Conduct of Pre-Trial and Use of Deposition-
Discovery Measures as cited in Alviola v. Avelino,
A.M. No. MTJ-P-08-1697, 2008)
Sets forth:
1. Actions taken during the pre-trial conference
2. Facts stipulated
3. Admissions made
4. Evidence marked
5. Witnesses to be presented
6. Schedule of the trial
Pre-trial order is not necessary to make pre-trial
stipulations binding. The court’s approval,
mentioned in the last sentence of Sec. 2, Rule 118,
is not needed to make the stipulations binding on
the parties. Such approval is necessary merely to
emphasize the supervision by the court over the
case and to enable it to control the flow of the
proceedings. (Bayas v. Sandiganbayan, G.R No.
143689-91, 2002)
6. REFERAL OF SOME CASES FOR
COURT ANNEXED MEDIATION
(CAM) AND JUDICIAL DISPUTE
RESOLUTION (JDR)
CAM = mediation presided over by an accredited
mediator.
JDR = mediation presided over by the judge.
512
 - Second level courts: 60 days
Mediation and conciliation at the level of the judge
would contribute significantly to the:
- First level courts: 30 days
• Satisfaction of litigants
• Help decongest the dockets of the judiciary
• Expedite the resolution of cases
Cases Subject to Mediation for JDR
1. All civil cases
2. Settlement of estates The JDR judge may talk to the parties, jointly or
3. Cases covered by the Summary Procedure, separately, w/o their lawyers
except:
JDR judge could facilitate the creation of options
that would provide solutions to the dispute

If there is NO settlement reached:

a. Traffic violations
b. Violation of municipal or city
ordinances

- JDR judge issues an order returning the

case to the Office of the Clerk of Court
a. The clerk shall raffle the case to
another judge who will conduct the pre-trial
proper
4. Cases cognizable by the Lupong
Tagapamayapa
5. Civil aspect of BP22 (bouncing checks) cases
6. Civil aspect of quasi-offenses
7. Civil aspect of estafa and libel
8. Civil aspect of theft

Stages in the Judicial Proceeding with JDR If Settlement is reached in JDR

1. From the filing of a complaint, to the conduct of
CAM and JDR during the pre-trial stage
2. Pre-trial proper to trial and judgment
Salient Features of the JDR
The judges conducting the JDR and the pre-trial
proper are different.
Notes taken during the JDR shall not form part of
the records of the case
Timeline for mediation:
Drafting of compromise agreement w/ the
assistance of their lawyers
Prior to the signing, the JDR judge may opt to
explain the contents of the agreement
Signing of the compromise agreements and the
filing of a joint motion to approve the compromise
Judge renders a judgment based on compromise
Copy of the judgment is sent to the Phil. Mediation
Center for statistical purposes

Court-Annexed Mediation Guidelines

513
The role of a counsel becomes less dominating and
less directive to allow the parties more opportunities
to craft their own agreement
Counsel shall confer and discuss w/ his client the
following:
 Circumstance of arrest or surrender
 Whether accused was assisted during
custodial and preliminary investigations
 Conditions of detention and interrogation

2. Ask accused’s counsel whether the

- Stress its difference w/ litigation, its
advantage and benefits
- Substance of the upcoming mediation, such
as:
▪ Substantive issues involved
▪ Study of the other side’s position
▪ Information necessary for informed
decision-making
▪ Possible bargaining options
▪ Best, worst, and most likely alternative
to negotiated agreement
consequences of a plea of guilty had been
completely explained
3. Elicit information about the personality profile
of the accused, such as his age, socio-
economic status, and educational background
4. Inform the accused the exact length of
imprisonment or nature of the penalty
5. Require the accused to fully narrate the
incident or make him reenact, or cause him to
supply missing details or significance. (People
v. Feliciano Ulit y Tampoy, G.R. Nos. 131799-
801, 2004)
END OF TOPIC

Where necessary, a lawyer may ask for a recess,

as often as may be necessary, in order to give
advice or suggestions to client in private
K. TRIAL
Should mediation fail, the case is referred back to (Rule 119)
the Court

Duty of the Court when the Accused Enters a

Plea of Guilty to a Capital Offense

1. INSTANCES WHEN PRESENCE OF

ACCUSED IS REQUIRED BY LAW
1. Ascertain from the accused himself –

514
2. REQUISITE BEFORE TRIAL CAN BE Prepare for Plea of not guilty at least
SUSPENDED ON ACCOUNT OF trial 15
ABSENCE OF WITNESS
3. TRIAL IN ABSENTIA
4. REMEDY WHEN ACCUSED IS NOT
BROUGHT TO TRIAL WITHIN THE
PRESCRIBED PERIOD
Initiate trial Receipt of pre-trial within
5. REQUISITES FOR DISCHARGE OF order 30
ACCUSED TO BECOME A STATE
WITNESS
6. EFFECTS OF DISCHARGE OF
ACCUSED AS STATE WITNESS
7. DEMURRER TO EVIDENCE
Trial period First day of trial 180*

Consolidation of Trials of Related Offenses

Charges for offenses founded on the same facts or
forming part of a series of offenses of similar
character may be tried jointly at the discretion of the
court.

Trial of Several Accused Except when:

General Rule: When two accused are jointly
charged with an offense, joint trial is automatic,
without need of court order.

Exception: The court, in its discretion, AND upon

motion of the prosecutor or any accused, orders
separate trial. 1. Authorized by the SC
2. Exclusions
A motion for separate trial must be filed before the
commencement of trial and cannot be raised for the
first time on appeal.

Even if a joint trial is conducted, the accused can

always be permitted to present evidence separately.

Periods Relevant to Trial A violation of Section 1, Rule 119 - time to prepare

for trial, or the total absence of notice of trial, is a
denial of due process and a new trial may be
granted. (People v. Magdang, et al., G.R. No. L-
836, 1950)

It shall be the duty of the trial court, the public or

private prosecutor, and the defense counsel to
ACTION FROM DAYS ensure, subject to the excluded delays specified in
Rule 119 of the RoC and the Speedy Trial Act of
1998, to observe the following (Section 8, A.M. No.
12-11-2-SC, 2014):

515
  The case shall be raffled and referred to
the trial court within 3 days from filing of
the information
 The accused shall be arraigned within 10 ABSENT UNAVAILABLE
days from the raffle
 The court shall hold the pre-trial
conference within 30 days after
arraignment or within 10 days if the
accused is under preventive detention
 The court shall set the trial not later than
30 days from the termination of the pre-
trial conference Whereabouts are Whereabouts are
 The court shall terminate the regular trial unknown or known but his
within 180 days or the trial by judicial whereabouts cannot be presence for trial
affidavits within 60 days, reckoned from determined by due cannot be obtained by
the date trial begins, minus the excluded diligence due diligence
delays and postponement.

The case against the detained accused may be

dismissed on ground of denial of the right to speedy
trial in the event of failure to observe the above time
limits (Section 9, A.M. No. 12-11-2-SC, 2014).

Exclusions
The following shall be excluded in computing the
180-day period:
C. Mental incompetence or physical inability of
A. Delay by reason of the accused the accused to stand trial
1. Examination of the physical and medical
condition
2. Proceedings with respect to other criminal
charges
3. Extraordinary remedies and interlocutory
orders
4. Pre-trial proceedings not exceeding 30 days
5. Orders of inhibition, or proceedings related to
change of venue or transfer from other courts
6. Existence of a prejudicial question
7. Reasonably attributable to any period, not
exceeding 30 days

B. Delay resulting from absence or D. Information dismissed upon motion of the

unavailability of an essential witness prosecutor

And thereafter a charge is filed against the

accused for the same offense, any period of
delay from the date the charge was dismissed
to the date the time limitation would commence

516
 to run as to the subsequent charge had there
been no previous charge. • If failure to grant a • Congestion of
continuance would likely court’s dockets
make a continuation of • Lack of diligent
such proceeding preparation
impossible or result to
miscarriage of justice
• Failure to obtain
witness for
• Case is novel, unusual prosecution
and complex, due to the
E. Accused is joined for trial with a co- number of accused or
accused nature of the
prosecution

When applicable:
1. Court has not acquired jurisdiction over co-
accused, or
Time Limit Following Order for New Trial
2. Co-accused’s trial has not run and no
General Rule: Trial shall commence within 30 days
motion for separate trial has been granted
from notice of the new trial order

Exception/s: Within 180 days if:

1. Period impractical due to unavailability of

witness
2. Other factors

F. Continuance

Public Attorney’s Duties Where Accused Is

Granting of postponement by the court is
Imprisoned
discretionary. Factors:
If the public attorney assigned to defend a person
charged with a crime knows that the latter is
preventively detained, either because he is charged
with a bailable crime but has NO means to post bail
or is charged with a non-bailable crime, or, is
serving a term of imprisonment in any penal
institution, it shall be his duty to do the following:
1. Promptly obtain his presence for trial or give
REASONABLE NOT JUSTIFIED BY notice to person having custody to advise the
prisoner of his right to demand trial

517
2. If the prisoner demands trial, the custodian Defense • Denial of the right to
shall notify the lawyer of such demand counsel or practice before the court
3. Upon receipt of notice, public attorney shall prosecutor trying the case for a max of
obtain presence of the prisoner for trial; and 30 days
4. The custodian shall make the accused
available for trial upon receipt of such notice. • Criminal sanctions if any

Grounds and Sanctions

If the private counsel for the accused, the public
attorney, or the prosecutor:
1. Knowingly allows the case to be set for trial
without disclosing that a necessary witness
would be unavailable
2. Files a frivolous motion (and w/o merit) solely The Modes of Discovery under Rules 23 to 29 do
for delay; not apply to criminal procedure. The applicable
3. Makes a false statement to obtain continuance; provision is Sections 12 and 13 of Rule 119.
OR
4. Willfully fails to proceed to trial w/o justification; 1. INSTANCES WHEN THE PRESENCE
OF THE ACCUSED IS REQUIRED
Then the court may punish such counsel, attorney,
or prosecutor, as follows: Accused is required to be present during:
1. Arraignment
2. Whenever required by the court for purposes of
identification
3. Promulgation of sentence

PERSON SANCTIONS

Exception (to no. 5): In light offenses, when

the accused may appear by counsel or
representative

Private defense • Max fine of P20,000

counsel
• Criminal sanctions if any
2. REQUISITES BEFORE TRIAL CAN
BE SUSPENDED ON ACCOUNT OF
ABSENCE OF WITNESS
Requisites before trial can be suspended on
Counsel de • Max fine of P5,000 account of absence of witness
oficio, PAO or 1. Witness is essential
prosecutor
• Criminal sanctions if any
2. The party who applies has been guilty of no
neglect
3. The witnesses can be had at the time to which
the trial is deferred and incidentally that no
similar evidence could be obtained
4. An affidavit showing the existence of the above
circumstances must be filed.

518
Bail to Secure Appearance of Material Witness ordered by a
When the court is satisfied, upon proof or oath, that superior court
a material witness will not testify when required, it
may, upon motion of either party:
1. Order witness to post bail
2. If witness refuses to post bail, court shall commit
him to prison until he complies or testifies

Examination of Witness Before Trial

Nowhere in the said rule (119) permits the taking of
deposition (for the prosecution) outside the
Philippines whether the deponent is sick or not.
Certainly, to take the deposition of the prosecution
witness elsewhere and not before the very same
court where the case is pending would not only
deprive a detained accused of his right to attend the
FOR THE FOR THE proceedings but also deprive the trial judge of the
ACCUSED PROSECUTION opportunity to observe the prosecution witness'
deportment and properly assess his credibility,
which is especially intolerable when the witness'
testimony is crucial to the prosecution's case
against the accused. (Go v. People, G.R No.
185527, 2012)

GROUNDS • Sick, infirm or • Sick, infirm or Applicability of Judicial Affidavit Rule in

/ WITNESS unavailable unavailable Criminal Cases
IS The Judicial Affidavit Rule shall apply to all criminal
• Resides more • About to
actions:
than 100km depart from 1. Where the maximum of the imposable penalty
from the place the PH w/ no does not exceed six years;
where the definite date 2. Where the accused agrees to the use of judicial
hearing is to of return affidavits, irrespective of the penalty involved;
be conducted or
and has no 3. With respect to the civil aspect of the actions,
means to whatever the penalties involved are. (A.M. NO.
attend the 12-8-8-SC Judicial Affidavit Rule, §9)
same
• Other similar Order of Trial
circumstances 1. Prosecution shall present evidence to prove the
charge and, in the proper case, the civil liability.
2. Accused may present evidence to prove his
defense and damages, if any, arising from the
issuance of a provisional remedy in the case.
3. Prosecution and defense may, in that order,
present rebuttal and sur-rebuttal evidence
BEFORE • Any judge in • Before the unless the court, in furtherance of justice,
WHO the PH court or judge permits them to present additional evidence
• Any lawyer where the bearing upon the main issue.
good standing case is 4. Upon admission of the evidence of the parties,
designated by pending the case shall be deemed submitted for
the judge decision unless the court directs them to argue
orally or to submit written memoranda.
• An inferior
court if

519
In cases under Summary Procedure, affidavits
submitted by the parties shall constitute the direct
testimonies of the witnesses who executed it. The
witness who testified may be subject to cross-
examination, redirect, or re-cross-examination.
Should the affiant fail to testify, his affidavit shall not
be considered as competent evidence for the party
presenting the affidavit, but the adverse party may
utilize his affidavit for any admissible purpose.
(Revised Rule on Summary Procedure, §15)
Note: 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.
Lack of Formal Offer of Evidence During Trial
Documents w/c may have been identified and
marked as exhibits during pre-trial or trial but w/c
were not formally offered in evidence cannot in any
manner be treated as evidence.
When Mistake Has Been Made in Charging the
Proper Offense
When accused cannot be convicted of the offense
charged or any other offense included therein –
1. Accused shall not be discharged if there
appears good cause to detain him
2. Court shall:
a. Commit the accused to answer for the
proper offense; and
b. Dismiss original case upon filing of
proper information
Exclusion of the Public
Judge may exclude the public from
courtroom/trial:
MOTU PROPIO MOTION OF THE
ACCUSED
When evidence to be May exclude the public
produced is offensive except court personnel
to decency or public and the counsel of the
morals parties
3. TRIAL IN ABSENTIA
An accused need not always be present in every
hearing although it is his right to be present if he so
desires from arraignment to the rendition of the
judgment.
Requisites of a Trial in Absentia
1. Accused has already been arraigned
2. Accused has been duly notified of the trial or
hearings
3. Absence of the accused is unjustified
4. REMEDY WHERE ACCUSED IS NOT
BROUGHT TO TRIAL WITHIN THE
PRESCRIBED PERIOD
The information may be dismissed on the motion of
the accused on the ground of denial of speedy trial.
Accused has the burden of proving the motion BUT
the prosecution has the burden of going forward
with the evidence to establish the exclusion of time.
Bar to speedy trial does not bar the right to speedy
the disposition under the Constitution. These remedies
are independent.
Substantial compliance with the time limitation
prescribed by the law for the resolution of the case
by the prosecutor is part of the procedural due
process guaranteed by the Constitution. Not only
520
under the broad umbrella of the due process
clause, but under the constitutional guarantee of
“speedy disposition” of cases as embodied in
Section 16 of the Bill of Rights, the inordinate delay
is violative of the petitioner's constitutional rights.
(Tatad v. Sandiganbayan, G.R. No. 72335-39,
1988)
Dismissal shall be subject to the rules on double
jeopardy.
Failure of the accused to move for dismissal prior to
trial is a waiver of the right to dismiss.
Discharge as State Witness
Requires motion of the prosecution before resting
its case
Discharge must be w/ the consent of the accused
More than one accused may be discharged
Evidence adduced in support of the discharge shall
automatically form part of the trial.
5. REQUISITES FOR AN ACCUSED TO
BE DISCHARGED AS STATE WITNESS
For an accused to be discharged to be a state
witness, the following elements must concur:
1. There is absolute necessity for the testimony of
the accused whose discharge is requested
2. No other direct evidence available for the
prosecution
3. Testimony of said accused can be substantially
corroborated in its material points
4. Accused does not appear to be the most guilty;
AND
5. Accused has never been convicted of moral
turpitude
Two Types of Immunity
TRANSACTIONAL USE-AND-
IMMUNITY DERIVATIVE-USE
IMMUNITTY
Witness can no longer Witness is only
be prosecuted for any assured that his or her
offense whatsoever particular testimony
arising out of the act or and evidence derived
transaction from it will not be used
against him or her in a
subsequent
prosecution
6. EFFECTS OF DISCHARGE OF
ACCUSED TO BE STATE WITNESS
Unless the accused fails or refuses to testify against
his co-accused in accordance w/ his sworn
statement constituting the basis for his discharge,
the discharge shall operate as:
1. An acquittal on the case; AND
2. A bar to future prosecution for the same
offense
7. DEMURRER TO EVIDENCE
A motion to dismiss filed by the accused after the
prosecution has rested its case; the grounds being
insufficiency of the evidence of the prosecution
The granting of demurrer is an acquittal.
Denial of Leave of Court Not Appealable
An order denying the motion for leave of court to file
a demurer cannot be reviewed by appeal or by
certiorari before judgment for it is merely an
interlocutory order. (People v. Laguio, G.R. No.
128587, 2007)
When Prosecution Has Rested Its Case
To conclude the case for the prosecution, the rules
require that there must have been a prior formal
offer of evidence, hence a demurrer filed before
then is premature. (Valencia v. Sandiganbayan,
G.R. No. 165996, 2005)
The prosecution should complete the presentation
or offer of evidence. To grant a demirrer prior to the
521
complete presentation of evidence by the Based on plaintiff’s Predicated upon
prosecution would be a denial of due process. failure to prove his insufficiency of
entitlement to relief evidence
Effect of Grant of Demurrer
An accused who files a demurrer to evidence has
not yet adduced evidence on either the criminal or
civil aspects of the case. If granted, the accused is
acquitted and still has the right to submit evidence
against the civil liability imposed. (Salazar v.
People, et al., G.R. No. 151931, 2003) Requires no prior May be filed w/ or w/o
leave of court leave of court
Effect of Denial of Demurrer

Defendant may still Accused may adduce

adduce evidence if evidence only if the
denied demurrer was filed w/
W/ LEAVE OF W/O LEAVE OF COURT leave of court
COURT

Plaintiff may appeal if No appeal if granted

granted, and if
Accused may still Accused waives the right to
reversed, defendant is
adduce evidence in present evidence and
deemed to have
his defense submits the case for
waived his right to
judgment
present his evidence

Demurrer to Evidence in a Civil Case and Reopening of the Proceedings

Demurrer to Evidence in a Criminal Case The proceedings may be reopened to prevent
miscarriage of justice –

CIVIL CASE CRIMINAL CASE

WHEN HOW

522
 imposition on him of the proper penalty and civil
Before the finality of Either –
liability, if any. (Rule 120, Section 1)
judgment of the
conviction the judge
1. REQUISITES OF A JUDGMENT

Requisites of a judgment
1. Written in official language
• Court motu 2. Personally and directly prepared by the judge
propio, or and signed by him
• Upon motion 3. Shall contain clearly and distinctly:
a. Statement of the facts
b. Law upon which it is based

The parties to a litigation should be informed of how

Note: The proceedings shall be terminated within
30 days from the order granting it.
END OF TOPIC
it was decided, with an explanation of factual and
legal reasons that led to the conclusions of the trial
court. A decision that does not clearly and distinctly
state the facts and the law on which it is based
leaves the parties in the dark as to how it was
reached and is precisely prejudicial to the losing
party, who is unable to pinpoint possible errors of
the court for review by a higher tribunal. (Lumanog,
et al. v. People, G.R. No. 182555, 2010)

2. CONTENTS OF A JUDGMENT

A. Judgment of Conviction
1. Legal qualification of the offense constituted by
the acts committed by the accused
L. JUDGMENT 2. Aggravating and mitigating circumstances
(Rule 120) 3. Participation of the accused whether as
principal, accomplice or accessory
4. Penalty imposed
5. Civil liability or damages, unless reserved or
waived

1. REQUISITES OF A JUDGMENT
2. CONTENTS OF JUDGMENT
3. PROMULGATION OF JUDGMENT;
INSTANCES OF PROMULGATION B. Judgment of Acquittal
1. State whether or not evidence of the
OF JUDGMENT IN ABSENTIA prosecution:
4. WHEN DOES JUDGMENT BECOME a. Absolutely failed to prove guilt
FINAL (FOUR INSTANCES) b. Merely failed to prove guilt beyond
reasonable doubt
2. In either case, judgment shall determine if the
act or omission from which the civil liability
JUDGMENT might arise did not exist
It is the adjudication by the court that the accused is
guilty or not guilty of the offense charged and the

523

A verdict of acquittal is immediately final. (People v.
Serrano, G.R. No. 135451, 1999)
Conditional and Alternative Penalties
The penalty imposed in a judgment cannot be
conditional, nor can it be in the alternative as, even
if the law provides for alternative penalties, the court
must choose and impose either of said alternative
penalties.
When Two or More Offenses Contained in a
Single Information or Complaint
Accused may file a motion to quash.
If accused fails to object to it before trial, the
accused is deemed to have waived the defect and
the court may convict him of as many offenses as
charged and proved, and impose a penalty for each
offense. (Rule 120, Section 3)
Judgment Rendered by Judge Who Did not Hear
the Case
The fact that the trial judge who rendered judgment
was not the one who had the occasion to observe
the demeanor of the witnesses during trial, but
merely relied in the records of the case, does not
render the judgment erroneous, especially when the
evidence on record is sufficient to support its
conclusion. (People v. Alfredo, G.R. No. 188560,
2010)
Where the judge who penned the decision had
ceased to be a member of the judiciary without said
decision having been promulgated, and his
successor caused its promulgation to be made
thereafter, such judgment is null and void. A
decision penned by a judge during his incumbency
cannot be validly promulgated after his retirement.
When a judge retired all his authority to decide any
case, i.e., to write, sign and promulgate the decision
thereon also retired with him. (Nazareno v. CA, et
al, G.R. No. 111610, 2002)
Judgment in Case of Variance Between
Allegation and Proof (Variance Doctrine)
General Rule: The accused may be convicted only
of the crime with which he is charged.
Exception: Rule on Variance.
When there is variance between the crime charged
and the crime proved, and the offense as charged is
included or necessarily includes 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. (People v. Chi Chan Liu, GR No. 189272,
2015)
An offense charged necessarily includes the
offense proved when some essential elements of
the former, as alleged in the complaint or
information, constitute the latter.
An offense charged is necessarily included in the
offense proved when the essential ingredients of
the former constitute the latter.
If there is variance, the accused can only be
convicted of the lesser offense which is included in
the graver offense. (People v. Pareja, G.R. No.
202122, 2014)
3. PROMULGATION OF JUDGMENT
General Rule: The judgment must be read in the
presence of the accused and any judge of the court
in which it was rendered
Exception/s:
1. Judgment in light offenses
a. May be pronounced in the
presence of the accused’s
counsel or representative
b. May be promulgated by the clerk
of court if the judge is absent or
outside the province or city
2. Judgment if accused is confined or
detained in another province or city
a. May be promulgated by the
executive judge of the RTC
having jurisdiction over the place
of confinement or detention
b. Upon request of the court which
rendered judgment
Manner of Promulgation
Judgment is promulgated by filing the signed copy
thereof with the clerk of court who causes true
copies to be served upon the parties.
How Accused Is Notified of the Promulgation
524
Notice shall be given personally by the clerk of court
to the accused or to his bondsman or warden and
counsel
Notice shall be served at the accused’s last known
address if the latter:
1. Jumped bail; or
2. Escaped from prison.
If Accused Fails to Appear in the Promulgation
such judgment is of conviction, he loses his
remedies in law even if an appeal is perfected by
his co-accused, who was present, including his
name.
(People v De Grano, G.R. No. 167710, 2009)
Modification of Judgment
A judgment of conviction may be modified or set
aside upon motion of the accused, before the
judgment becomes final or before appeal is
perfected.

General Rule: Judgment should be rendered

within 90 days from submission
Exceptions:
1. It must be rendered within 30 days in cases under
Summary Procedure
FOR FOR 2. It must be rendered within 15 days in drug cases
ACQUITTAL CONVICTION
4. WHEN JUDGMENT BECOMES FINAL

Judgment becomes final after:

Promulgation shall be made by:
1. Recording the judgment in the criminal
docket; and
2. Serving accused a copy thereof at his last
known address or thru his counsel
 If absence without
justifiable cause, accused
shall lose all remedies
against the judgment and
the court shall order his
arrest
 But within 15 days from
promulgation, accused may
surrender and file a motion
for leave of court to avail of
the remedies and prove the
reason of his absence. If
justified, he may then avail
of the remedies within 15
days from notice
If the accused was duly notified, his absence is not
a ground for the suspension of the promulgation.
1. Lapse of period for appeal
2. Sentence partially or totally served
3. Accused waives in writing his right to appeal
4. Accused has applied for probation
Exception is when the death penalty is
imposed.
Youthful Offenders
In case of youthful offenders, instead of
pronouncing a final judgment of conviction, the
court should automatically suspend the sentence
and commit the minor to the DSWD or other
institution until he reaches the age of majority.
Exception/s:
1. If the offender has enjoyed a previous
suspension of sentence;
2. If the offender is convicted of an offense
punishable by death or life imprisonment;
3. If the offender is convicted by a military
tribunal;
4. If, at the time of sentencing, the offender is
already of age, even if he was a minor at
the time of the commission of the offense

Absence of some of the accused during

promulgation of judgment
If an accused that is part of multiple accused in one
case is absent at promulgation of judgment, and

525
 END OF TOPIC
Probation
Probation is a mere privilege, and the grant is
discretionary upon the court.

The offender should apply for probation after

conviction within the period for perfecting an appeal.

An application for probation may no longer be filed

once the defendant has already perfected an
appeal from the judgment of conviction.
M. NEW TRIAL OR
On the other hand, the filing of an application for RECONSIDERTION
probation is deemed a waiver of the right to appeal.

The Probation Law never intended to deny an

accused his right to probation through no fault of
his. The underlying philosophy of probation is one
of liberality towards the accused. Thus, when the
accused is found guilty only of a lesser crime, it
would be but fair to allow him the right to apply for
probation upon remand of the case to the RTC. If
1. GROUNDS FOR NEW TRIAL
the Court allows the accused to apply for probation 2. GROUNDS FOR
because of the lowered penalty, it is still up to the RECONSIDERATION
trial judge to decide whether or not to grant him the 3. REQUISITES BEFORE A NEW
privilege of probation, taking into account the full TRIAL MAY BE GRANTED ON
circumstances of his case. (Colinares v. People,
G.R. No. 182748, 2011) GROUND OF NEWLY DISCOVERED
EVIDENCE
In cases where the penalty is a fine, and the 4. FORM OF MOTION AND NOTICE TO
defendant cannot pay, he has to serve subsidiary THE PROSECUTOR
imprisonment. In this case, probation or suspension
of sentence becomes relevant.
5. EFFECTS OF GRANTING A NEW
TRIAL OR RECONSIDERATION
A probation order shall take effect upon its 6. APPLICATION OF NEYPES
issuance. DOCTRINE IN CRIMINAL CASES
Probation does not release civil liability.

A denied application for probation cannot be New Trial or Reconsideration

appealed. At any time before a judgment of conviction
becomes final, the court may, on motion of the
When Should the Court Deny the Application for accused or at its own instance but with the consent
Probation of the accused, grant a new trial or reconsideration.
1. The offender is in need of correctional
treatment that can be provided most effectively Motion for Reconsideration; New Trial; and
by his commitment to an institution. Reopening of the Case
2. There is undue risk that during the period or
probation, the offender will commit another
crime.
3. Probation will depreciate the seriousness of the
crime committed.

526
 MOTION NEW REOPENING OF
FOR TRIAL THE CASE If an appeal has already been perfected, a motion
RECONSI- for new trial on the ground of newly discovered
DERATION evidence may be filed in the appellate court.

Effect of Filing of Motion for New Trial or

Reconsideration
The filing of either motion interrupts the period for
perfecting an appeal from the time of its filing until
notice of the order overruling the motion shall have
To To permit the reception of been served upon the accused or his attorney.
reconsider its new evidence and extend the
findings of proceedings 1. GROUNDS FOR NEW TRIAL
law
A motion for new trial may be filed upon any of the
following grounds:
1. Errors of law during trial
2. Irregularities prejudicial to the substantial rights
of the accused during trial
3. New and material evidence has been
Filed after judgment is Made by the court discovered
rendered but before the before judgment
finality thereof is rendered, in the
exercise of sound
discretion
Note: A new trial can be granted only
1. On motion of the accused; or
2. On motion of the court but with the consent of
the accused.

The rule does not provide for a motion for new trial
On motion of the May be at the by the prosecution as the reopening of the case
accused or on motion of instance of either would result in double jeopardy.
the court but with the party or by the
consent of the accused court motu 2. GROUNDS FOR
proprio, with a
hearing in either RECONSIDERATION
case, for the
purpose of A motion for reconsideration may be filed upon
presenting any of the following grounds:
additional 1. Errors of law.
evidence 2. Errors of fact in the judgment.

Note: Requires no further proceedings

3. REQUISITES BEFORE A NEW TRIAL

MAY BE GRANTED ON GROUND
OF NEWLY DISCOVERED
EVIDENCE
When to File Motion for New Trial or
Reconsideration
The motion should be filed within 15 days from the Elements of Newly Discovered Evidence
promulgation of the judgment. 1. New evidence discovered after trial
2. It could not have been previously discovered
and produced at the trial even with reasonable
diligence

527
3. It is new and material evidence  New judgment shall be rendered accordingly
4. If introduced and admitted, it would probably
change judgment

All the proceedings and Evidence already

evidence affected thereby adduced shall stand
shall be:
Note: The Rules do not give an exact definition of Newly discovered
due diligence, and whether the movant has and other evidence
exercised due diligence depends upon the as the court may, in
particular circumstances of each case. 1. Set aside and taken the interest of
Nonetheless, it has been observed that the phrase anew justice, allow to be
is often equated with “reasonable promptness to 2. The court, in the introduced shall be
avoid prejudice to the defendant.” In other words, interest of justice, taken and
the concept of due diligence has both a time may allow considered together
component and a good faith component. (People v. additional evidence with evidence
Chua, GR No. 196853, 2015) already in record

A new trial may not be had on the basis of

evidence which was available during trial but was
not presented due to its negligence. (People v.
Senit, GR No. 192914, 2016)

Form of Motion and Notice to the Prosecutor Requires no further Supported by

The motion for new trial or reconsideration proceeding affidavits of
1. Shall be made in writing witnesses or by
2. Shall state the grounds on which it is based authenticated copies
3. Notice shall be given to the prosecutor of documents which
are proposed to be
If based on newly discovered evidence, motion introduced
must be supported by affidavits of witnesses by
whom such evidence is expected or by
authenticated copies of documents which are
proposed to be introduced to evidence

A hearing shall be conducted when the motion for

new trial calls for a resolution of a question of fact.
Court may hear evidence on the motion by affidavits
or otherwise. (Rule 121, Section 5)
4. EFFECTS OF GRANTING A NEW
TRIAL OR RECONSIDERATION
5. APPLICATION OF NEYPES RULE IN
CRIMINAL CASES
The Court deems it practical to allow a fresh period
of 15 days within which to file the notice of appeal in
the RTC, counted from receipt of the order
dismissing a motion for a new trial or motion for
reconsideration. (Yu v. Hon. Tatad, G.R. No.
170979, 2011)

Recantation
The public and formal withdrawal of a witness’ prior
GROUNDS OF ERRORS GROUND OF statement made under oath, in the presence of the
OF LAW OR NEWLY- judge, and with the opportunity to cross-examine.
IRREGULARITIES DISCOVERED
EVIDENCE General Rule: Recantation is not a ground for new
trial because it makes a mockery of the court and

 Notice shall be given to the prosecutor

 Judgment shall be set aside and vacated

528
would place the investigation of truth at the mercy of
the unscrupulous witness. END OF TOPIC

Exception: When the testimony is material, its

recantation creates doubt of the guilt of the
accused.
N. Appeal
(Rule 122)

1. EFFECT OF AN APPEAL
2. WHERE TO APPEAL
RECANTATION AFFIDAVIT OF
DESISTANTCE

a. Regional Trial Court

b. Court of Appeals
A witness who The complainant c. Supreme Court
previously gave a states that he did not
testimony really intend to
subsequently institute the case and
declares that his that he is no longer
statements were not interested in
true testifying or
prosecuting 3. HOW APPEAL TAKEN

A ground for a. In the MTC, RTC, CA, and SC

dismissing the case b. In the Sandiganbayan
only if the
prosecution can
break the elements of
the case against the
accused

529
4. EFFECT OF APPEAL BY ANY OF
SEVERAL ACCUSED
5. GROUNDS FOR DISMISSAL OF
APPEAL
1. EFFECT OF APPEAL
An appeal throws the case wide open for review
and the reviewing tribunal can correct errors or
even reverse the trial court’s decision on grounds
other than those that the parties raised as errors.
Note: Accused’s release on parole does not affect
his appeal.
Not a Natural Right
The right to appeal is not a natural right nor part of
due process but merely a statutory privilege and
may be exercised only in the manner and in
accordance with the provisions of law. (Estrallado-
Mainar v. People, G.R. No. 184320, 2015)
Who May Appeal
Any party may appeal from a judgment or final
order, unless the accused will be placed in double
jeopardy
Note: Since the rule refers to “any party,” the
prosecution may appeal provided the accused will
not be placed in double jeopardy. (Riano, Criminal
Procedure: The Bar Lecture Series, 2011)
The prosecution cannot appeal from a judgment of
acquittal because a verdict of that nature is
immediately final and to try him on the merits, even
in an appellate court, is to put him a second time in
jeopardy for the same offense. (Central Bank of the
Phils. v. CA, G.R. No. 41859, 1989)
Despite acquittal, however, either the offended
party or the accused
may appeal, but only with respect to the civil aspect
of the decision. Or, said judgment of acquittal may
be assailed through a petition for certiorari under
Rule 65 of the Rules of Court showing that the
lower court, in acquitting the accused, committed
not merely reversible errors of judgment, but also
exercised grave abuse of discretion amounting to
lack or excess of jurisdiction, or a denial of due
process, thereby rendering the assailed judgment
null and void.16 If there is grave abuse of
discretion, granting petitioner’s prayer is not
tantamount to putting private respondents in double
jeopardy. (AAA v. CA, G.R. No. 183652, 2015)
The doctrine that "double jeopardy may not be
invoked after trial" may apply only when the Court
finds that the “criminal trial was a sham” because
the prosecution representing the sovereign people
in the criminal case was denied due process. The
Court in People v. Bocar rationalized that the
"remand of the criminal case for further hearing
and/or trial before the lower courts amounts merely
to a continuation of the first jeopardy, and does not
expose the accused to a second jeopardy. (People
v. Hon. Velasco, G.R. 127444, 2000)
The right of the offended party to appeal insofar as
his civil liability is concerned is independent of the
right of, and the perfection of his own appeal, by the
accused.
In the case of the People of the Philippines, only the
state, through its appellate counsel, the Office of the
Solicitor General, has the sole right and authority to
institute proceedings before the CA or SC. (Carino
v. De Castro, G.R. No. 176084, 2008)
Conversely, appeal by the People in the following
cases is permissible:
1. When the right of the offended parties to
appeal an order of the trial court which deprives
them of due process;
2. Where the information was quashed prior to
arraignment, the prosecution may appeal the
order sustaining the motion to quash because
before a plea is entered, no jeopardy attaches;
3. When the case was provisionally dismissed
with the express consent of the accused, the
same may be refilled by the fiscal without
violating the right against double jeopardy; or
4. When the trial court gravely abused its
discretion, as when it dismissed the case due
to non-appearance of a vital witness who was
not properly notified of the date of trial,
certiorari will lie because such a grave abuse of
discretion is tantamount to lack or excess of
jurisdiction,
Subject Matter for Review on Appeal
It is settled that in a criminal case, an appeal throws
the whole case open for review, and it becomes the
duty of the appellate court to correct such errors as
may be found in the judgment appealed from,
530
whether they are made the subject of the
assignment of errors or not. (People v. Michael
Lindo y Vergara, G.R. No. 189818, 2010)
Change of Theory on Appeal
Points of law, theories, issues and arguments not
adequately brought to the attention of the trial court
ordinarily will not be considered by a reviewing
court as they cannot be raised for the first time on
appeal because this would be offensive to the basic
rules of fair play, justice and due process. (People
v. Mamaril, G.R. No. 171980, 2010)
When Appeal to be Taken
2. WHERE TO APPEAL
Regional Trial Court – in cases decided by the
Metropolitan Trial Court, Municipal Trial Court in
Cities, Municipal Trial Court, or Municipal Circuit
Trial Court
Court of Appeals or the Supreme Court in the
proper cases provided by law - in cases decided
by the Regional Trial Court
Supreme Court - in cases decided by the Court of
Appeals

APPEAL OF A APPEAL OF AN
JUDGMENT ORDER

Must be perfected Must be perfected

within 15 days from within 15 days from
promulgation of the notice of the final
final judgment order

Period Suspended
The period for appeal is suspended from the time
the motion for new trial or reconsideration is filed up
to the service to the accused or his counsel of the
notice of the order overruling the motion.

Modes of Review
The Rules of Court recognizes 4 modes by which
the decision of the final order of the court may be
reviewed by a higher tribunal:
1. Ordinary appeal
2. Petition for review
3. Petition for review on certiorari
4. Automatic appeal

531
3. HOW TO APPEAL

A. In the MTC, RTC, CA and SC

FROM PENALTY TO HOW

Automatic
Review
Death
Render but not
enter

RTC
CA
(original
Life or reclusion
jurisdiction)
perpetua

Ordinary appeal

Exceeding 6 years

532
 Death, life or Render but not
SC
reclusion perpetua enter

B. In the SANDIGANBAYAN

Service of Notice of Appeal

If personal service of the copy of notice of appeal
cannot be made upon the adverse party or his
counsel, service may be done by registered mail or
substituted service

ORIGINAL JURISDICTION Appellee may waive right to a notice that an appeal

has been taken

The appellate court may, in its discretion, entertain

an appeal notwithstanding failure to give such
notice if the interests of justice so require

Not Death, life or
reclusion perpetua
SC
Petition The fact that no copy of the notice of appeal is
for served upon the adverse party is not fatal to the
review perfection of the appeal as long as the notice of
on appeal had been filed on time. (People v.
certiorari Villanueva, G.R. No. L-1876, 1966)

Transmission of Papers to Appellate Court

Within 5 days from the filing of notice of appeal:
1. Clerk of court with whom notice of appeal was
filed must transmit to the clerk of court of the
appellate court the complete record of the
Life or reclusion case, together with such notice.
Notice of appeal
perpetua 2. Original and 3 copies of the transcript of
stenographic notes shall also be transmitted.
3. Retain one copy in the lower court.

In all cases where death penalty is imposed by the

trial court, the records shall be forwarded to the
Court of Appeals for automatic review and judgment
Death Automatic review within 20 but not earlier than 15 days from
promulgation of judgment or notice of denial of
motion for new trial or reconsideration.

Appeal to the Regional Trial Courts

1. Within 5 days from perfection of appeal, clerk
of court shall transmit original record to the
APPELLATE JURISDICTION appropriate RTC;
2. Upon receipt of complete record, clerk of court
of the RTC shall notify parties;
3. Within 15 days from receipt of notice, parties
may submit memoranda or briefs, or may be
required to do so. After submission, RTC shall
decide the case based on the entire record

533

Withdrawal of Appeal in RTC
The appellant may withdraw his appeal filed in MTC
before the record has been forwarded to the RTC
If the record has been forwarded, withdrawal may
only be allowed if:
1. A motion to withdraw is filed
2. Motion is filed before the RTC renders
judgment
Appeal Not Mooted by Accused’s Release on
Parole
Appeal not mooted by accused-appellant’s release
on parole. Parole refers to the conditional release of
an offender from a correctional institution after he
serves the minimum term of his prison sentence.
Parole is not one of the modes of totally
extinguishing criminal liability under Article 89 of the
RPC. (People v. Abesamis, G.R. No. 140985, 2007)
4. EFFECT OF APPEAL BY ANY OF
SEVERAL ACCUSED
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 him.
Appeal of the offended party of the civil aspect shall
not affect the criminal aspect of the judgment or
order appealed from.
Upon perfection of appeal, the execution of
judgment or final order appealed from shall be
stayed as to the appealing party.
5. GROUNDS FOR DISMISSAL OF
APPEAL
An appeal may be dismissed on any of the following
grounds:
1. Appellant failed to file his brief within the time
prescribed by this Rule, except when he is
represented by counsel de oficio.
2. Appellant escapes from prison or confinement.
3. Appellant jumps bail.
4. Appellant flees to a foreign country during the
pendency of the appeal.
Appointment of Counsel De Oficio
It is the duty of the clerk of court of the trial court,
upon filing of a notice of appeal
1. To ascertain from appellant, if confined in
prison, whether he desires the RTC, CA or SC
to appoint a counsel de oficio to defend him
2. Transmit with the record, upon form to be
prepared by the clerk of court of the appellate
court, a certificate of compliance with this duty
and response to his inquiry
PROCEDURE IN THE MUNICIPAL TRIAL
COURTS
Uniform Procedure
General Rule: Same as in the Regional Trial
Courts.
Exception/s:
1. Particular provision applies only to either of
said courts.
2. Criminal cases governed by the Revised Rule
on Summary Procedure.
PROCEDURE IN THE COURT OF APPEALS
Appointment of Counsel De Oficio
Clerk of Court of the CA shall designate a counsel
de oficio if it appears from the case record that
1. Accused is confined in prison;
2. Is without counsel de oficio; or
3. Signed notice of appeal himself.
Appellant not confined in prison may, upon request,
be assigned a counsel de oficio within 10 days from
receipt of notice to file brief and he establishes his
right thereto
When Brief for Appellant Be Filed
Within 30 days from receipt by the appellant or his
counsel from the clerk of court of the CA of the
notice that evidence is attached to the record,
appellant shall file:
1. 7 copies of his brief with the clerk of court; and
2. 2 copies to the appellee, with proof of service.
WHEN BRIEF FOR APPELLEE TO BE FILED
Within 30 days from receipt of appellant’s brief,
appellee shall file:
(a) 7 copies of his brief with the clerk of court;
and
(b) 2 copies to the appellant, with proof of
service.
534
 Exception: Error was committed which
Note: The appellant may file a reply within 20 days affected substantial rights.
from such receipt.
Scope of Judgment
Extension of Time for Filing
General Rule: Not allowed
Exception: For good and sufficient cause

Form and Content of Briefs

JUDGMENT Reverse, affirm or

modify

FORM CONTENT

PENALTY Increase or reduce

 Printed, encoded or  See Rule 44, Secs.
type-written 13 and 14
 Double-spaced  Certified true copy of
 On legal size the decision or final
 Unglazed paper order must be
appended
REMAND TO RTC For new trial or retrial

Dismissal of Appeal for Abandonment or Failure

to Prosecute
When an appeal can be dismissed:
Or simply dismiss the case
1. Brief filed out of time, except if represented by
a counsel de oficio.
2. Appellant escapes from prison.
3. Appellant jumps bail.
4. Appellant flees to a foreign country.

Note: May be done upon motion of the appellee or

motu proprio.
Prompt Disposition of Appeals
Appeals of accused under detention shall be given
precedence over other appeals.
Period of Appeal
Trials and hearings in the CA must be completed
within 3 months, unless extended by the Chief
Justice.

Accused need not be present in court during the
hearing of the appeal.
Judgment not to Be Reversed or Modified
General Rule: The findings of the lower court shall
not be disturbed in appeal.
Certification or Appeal of Case to the SC
1. If the penalty imposed by the RTC is death, the
CA shall render judgment but not enter;
2. Where the judgment also imposes a lesser
offenses committed that gave rise to the more
severe offense for which the death is imposed,
and the accused appeals, such appeal shall be
included in the case certified for review to the
SC;

535
3. If the CA imposes reclusion perpetua, life or a c. Search of moving vehicle
lesser penalty, it shall render and enter for it d. Check points; body checks in airport
may be ordinarily appealed in the SC e. Plain view situation
f. Stop and frisk situation
PROCEDURE IN THE SUPREME COURT g. Enforcement of custom laws
Uniform Procedure h. Remedies from unlawful search and
General Rule: Same as in the Court of Appeals. seizure
Exception: Provided by the Constitution or
law.

Division if Opinion is Equally Divided

When the SC en banc is equally divided or the
necessary majority cannot be had on whether to
acquit the appellant, the case shall be re-
deliberated upon.
If no decision is reached after re-deliberation, the
accused shall be acquitted.
END OF TOPIC
1. NATURE OF SEARCH WARRANT
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.

Not a criminal action nor does it represent a

commencement of a criminal prosecution even if it
is entitled like a criminal action.

Not a proceeding against a person but is solely for

the discovery and to get possession of personal
property.

Applies to both natural and juridical persons.

O. SEARCH AND SEIZURE
Exclusively issued by trial judges.

Cannot be validly issued against chattels and

effects of persons enjoying diplomatic immunity
pursuant to RA 75.

Application is heard Ex Parte.

1. NATURE OF SEARCH WARRANT
Note: The rule that venue is jurisdictional does NOT
2. DISTINGUISH FROM WARRANT OF strictly apply in proceedings for the application
ARREST of search warrants. A warrant, such as a warrant
3. APPLICATION FOR SEARCH of arrest or a search warrant, merely constitutes
WARRANT, WHERE FILED process. It is a special criminal process. A search
4. PROBABLE CAUSE warrant is in the nature of a criminal process akin to
a writ of discovery. It is a special and peculiar
5. PERSONAL EXAMINATION BY remedy, drastic in its nature, and made necessary
JUDGE OF THE APPLICANT AND because of a public necessity (Pilipinas Shell
WITNESSES Petroleum Corporation and Petron Corporation v.
6. PARTICULARITY OF PLACE TO BE Romars International Gases Corporation
G.R. No. 189669, 2015).
SEARCHED AND THINGS TO BE
SEIZED Requisites of a Search Warrant
7. PERSONAL PROPERTY TO BE 1. Order in writing
SEIZED 2. Issued in the name of the People of the
8. EXCEPTIONS TO SEARCH Philippines
3. Signed by a judge
WARRANT REQUIREMENT 4. Directed to a peace officer
a. Search incidental to lawful arrest
b. Consented search

536
5. Commanding him to search for personal
property described therein
6. To bring the property before the court
investigation is
2. SEARCH WARRANT AND WARRANT required (offense is
less than 4 years, 2
OF ARREST months and 1 day), the
complaint or
information may be
filed directly with the
MeTC/MTC without a
preliminary
investigation. The
MeTC/MTC judge
should conduct a
personal examination
before issuing a
warrant of arrest.

SEARCH WARRANT WARRANT OF

ARREST

Generally served at May be made at any

Applicant must show
that the items sought
are in fact:
day time, unless there time of the day or night
be a direction in the
warrant that it may be
Applicant must show: served at any time of
the day or night

1. Probable cause
that an offense
1. Seizable by has been
virtue of being committed and
connected w/ 2. The person to be Prescribes in 10 days Until served
criminal activity arrested has from date of issue
2. Will be found in committed it
the place to be
searched

Personal examination Judge not required to

of the complaint and make a personal
the witness is required examination but the 3. APPLICATION FOR SEARCH
from the judge judge must make an WARRANT, WHERE FILED
independent evaluation
of the records General Rule: Before any court w/in whose
forwarded to him/her territorial jurisdiction a crime was committed. (De
after preliminary Joya v. Marquez, citing Regalado, Remedial Law
investigation. Compendium, Vol. 1, pp. 7-9; Sps. Marimla v.
People, G.R. No. 158467, 2009)
Note: In cases where Exception/s:
no preliminary

537
 1. Before any court w/in the judicial region
where the crime was committed if the
place of the crime is known. (A.M. No. 00-
5-03-SC as cited in Sps. Marimla v. Motion to Quash a Search Warrant and Motion
People, G.R. No. 158467, 2009) to Suppress Evidence
2. Before any court w/in the judicial region
where the warrant shall be enforced. (A.M.
No. 00-5-03-SC as cited in Sps. Marimla v.
People, G.R. No. 158467, 2009)
Note: In both exceptions, filing in such courts
requires compelling reasons stated in the
application.
3. Application shall be made only in the court MOTION TO QUASH MOTION TO
where the criminal action is pending, if A SEARCH SUPPRESS
criminal action has already been filed. WARRANT EVIDENCE

Authority of the Executive Judge and Vice-

Executive Judge Re Search Warrants in Manila
and Quezon City Filed before service of Filed after the search
Executive Judges of the RTC’s of Manila and the search warrant warrant has been
Quezon City may issue search warrants outside served
their territorial jurisdiction for the following crimes:
1. Heinous crimes;
2. Illegal gambling;
3. Dangerous drugs;
4. Illegal possession of firearms;
5. Anti-Money Laundering Act;
6. Violation of Tariff and Customs Code; and Where to file:
7. Special Commercial Courts of Manila, Makati,
Pasig and Quezon City can issue warrants
effective nationwide.
 Court where case is pending
For these crimes, there is a need to apply before  If no case is pending, the court w/c issued
the executive judge in Manila or Quezon City to be the warrant
effective anywhere. (Marimla v. People, G.R. No.  If a case is filed subsequently, the motion
158467, 2009, citing A.M. 99-10-09-SC and A.M. shall be resolved by the court where the
No. 03-8-02-SC entitled Guidelines On The case has been filed.
Selection And Designation Of Executive Judges
And Defining Their Powers, Prerogatives And
Duties)

One Search Warrant per Offense

No search warrant shall issue for more than one
specific offense.
Thus, when a search warrant was issued for
robbery but the information however was quashed,
the things seized on the basis of such search
warrant cannot be used for re-filing of an
information for qualified theft on the same case. (Sy
Tan v. SyTion, G.R. No. 174570, 2010)
If a search warrant is issued as an incident in a
pending criminal case, the quashal of a search
warrant is merely interlocutory. 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 ends the judicial
process (final order) 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,
2014)

538

4. PROBABLE CAUSE TO ISSUE A
SEARCH WARRANT
Refers to such facts and circumstances, w/c would
lead a reasonably discreet and prudent man to
believe that objects sought in connection w/ an
offense are in the place to be searched
The probable cause must be shown to be within the
personal knowledge of the complainant or the
witnesses and not based on mere hearsay.
No exact test exists as to what acts constitute
probable cause but the requirement is less than
certainty of proof, but more than suspicion or
possibility
“Reliable information” is insufficient
Note: A probable cause to arrest does not
necessarily involve a probable cause to search and
vice versa.
5. WHERE TO FILE
General Rule:
a. If no criminal action has yet been filed
1. Any court within whose territorial
jurisdiction the crime was committed.
2. For compelling reasons stated in the
application, any court within the judicial
region where the crime was committed if
the place of the commission of the crime is
known, or any court within the judicial
region where the warrant shall be
enforced.
Under paragraph (b) of Section 2, Rule 126 of the
Revised Rules of Criminal Procedure, the
application for search warrant should state
compelling reasons why the same was filed with the
court that do not territorial jurisdiction over the place
where the alleged crime was committed and also 
the place where the search warrant was enforced. 
The wordings of the provision is of a mandatory
nature, requiring a statement of compelling reasons
if the application is filed in a court which does not
have territorial jurisdiction over the place of
commission of the crime. 
Since Section 2, Article III of the 1987 Constitution
guarantees the right of persons to be free from
unreasonable searches and seizures, and search
warrants constitute a limitation on this right, then
Section 2, Rule 126 of the Revised Rules of
Criminal Procedure should be construed strictly
against state authorities who would be enforcing
the search warrants (Pilipinas Shell Petroleum
Corporation and Petron Corporation v. Romars
International Gases Corporation
G.R. No. 189669, 2015).
Where Filed:
1. Any court within whose territorial jurisdiction a
crime was committed.
2. For compelling reasons stated in the
application, any court within the judicial
region where the crime was committed if the
place of the commission of the crime is
known, or any court within the judicial region
where the warrant shall be enforced. (Pilipinas
Shell vs Romars, GR No. 189699, 2015)
Note: However, if the criminal action has already
been filed, the application shall only be made in the
court where the criminal action is pending. 
B. If criminal action has already been filed
1. The application shall only be made in the
court where the criminal action is pending.
Exceptions:
A. Section 12, A.M. No. 03-8-02-SC, 2004
Sec. 12. Issuance of search warrants in
special criminal cases by the Regional Trial Courts
of Manila and Quezon City. – The Executive Judges
and, whenever they are on official leave of absence
or are not physically present in the station, the Vice-
Executive Judges of the RTCs of Manila and
Quezon City shall have authority to act
on applications filed by the National Bureau of
Investigation (NBI), the Philippine National Police
(PNP) and the Anti-Crime Task Force (ACTAF), for
search warrants involving 
1. heinous crimes, 
2. illegal gambling, 
539
3. illegal possession of firearms and ammunitions
as well as  6. PERSONAL
4. violations of the Comprehensive Dangerous
Drugs Act of 2002, 
5. the Intellectual Property Code,  WITNESSES,
6. the Anti-Money Laundering Act of 2001,  PROCEDURE
7. the Tariff and Customs Code, as amended, and 
8. other relevant laws that may hereafter be
enacted by Congress, and included herein by the
Supreme Court.   1. Examination must be personally conducted by
The applications shall be personally endorsed by
the heads of such agencies1 and shall
particularly describe therein the places to be
searched and/or the property or things to be seized
as prescribed in the Rules of Court. The Executive
Judges and Vice-Executive Judges concerned shall
issue the warrants, if justified, which may be served
in places outside the territorial jurisdiction of the
said courts.
The Executive Judges and the authorized Judges
shall keep a special docket book listing names
of Judges to whom the applications are assigned,
the details of the applications and the results of
the searches and seizures made pursuant to the
warrants issued.
This Section shall be an exception to Section 2 of
Rule 126 of the Rules of Court. 
B. If the nature of the violation would
constitute a transitory or continuing
offense, application for search warrant may
be filed in any court where any element of
the alleged offense was committed.2
1
Note: Marimla vs People, G.R. No. 158467, 2009.
Even if the application for search warrant was not
personally endorsed by the NBI Head, but by the
Deputy Director (who was commissioned to sign the
authorization letter in behalf of the Director, but
such claim was not substantiated, this could not be
considered as a fatal defect. The Court held in this
case that nothing in A.M. No. 99-10-09-SC prohibits
the heads of the PNP, NBI, PAOC-TF and REACT-
TF from delegating their ministerial duty of
endorsing the application for search warrant to their
assistant heads. Under Section 31, Chapter 6, Book
IV of the Administrative Code of 1987, an assistant
head or other subordinate in every bureau may
perform such duties as may be specified by their
superior or head, as long as it is not inconsistent
with law.  the alleged offense was committed, including any of
2
Note: Sony Computer v. Supergreen, Inc., 2007.
EXAMINATION BY
JUDGE OF THE APPLICANT AND
REQUIRED
Personal examination by judge of the applicant
and witnesses
the judge
2. Examination must be in the form if searching
questions and answers
3. Complainant and witnesses shall be examined
on those facts personally known to them
4. Statements must be in writing and under oath
5. Sworn statements of the complainant and the
witnesses, together w/ the affidavits submitted,
shall be attached to the record
Notes:
Examination must be probing and exhaustive, not
merely routinary or pro forma.
The judge must not simply rehash the contents of
the affidavit but make his own inquiry on the intent
and justification of the application.
7. PARTICULARITY OF SEARCH AND
SEIZURE
The alleged acts of Supergreen where it imitated
the general appearance of Sony’s goods was
allegedly done in Cavite, and sold in Mandaluyong
City. The NBI applied with RTC of Manila for
warrants to search Supergreen’s premises in
Paraňaque City and Cavite. RTC of Manila issued
warrants, constitute transitory or continuing offense.
The Court held that under Rule 126, Section 2(b) of
the Revised Rules of Criminal Procedure, Section
168 of Rep. Act No. 8293 and Article 189 (1) of the
Revised Penal Code, the petitioner may apply for a
search warrant in any court where any element of
the courts within the National Capital Region (Metro
Manila). 
540
PLACE TO A description of the place to
BE be searched is sufficient if
SEARCHED the officer with the warrant
can, with reasonable effort,
ascertain and identify the
place intended and
distinguish it from other
places in the community.
(People v. Posada, GR. No.
196052, 2015)
PROPERTY Description must be so
TO BE particular that the officer
SEIZED charged with the execution
of the warrant will be left with
no discretion respecting the
property to be taken
Test: whether the things
described are limited to
those which bear direct
relation to the offense for
which the warrant is issued.
(Chan v. Honda Motors,
G.R. No. 172775, 2007).
[Note: The SC allowed the
seizure of “Wave 110 S” and
“Wave 125 S” motorcycles
where the search warrant
was for “Wave” motorcycles.]
PERSON TO It may be said that the
BE person to be searched is
SEARCHED “particularly described” in the
search warrant when his
name is stated in the search
warrant, or if the name is
unknown, he is designated
by words sufficient to enable
the officer to identify him
without difficulty
8. PERSONAL PROPERTY TO BE
SEIZED
Personal property to be seized
1. Subject of the offense (i.e. the gun in a case for
illegal possession of firearms, the drugs in a
case for violation of the Dangerous Drugs Act.)
2. Stolen or embezzled and other proceeds, or
fruits of the offense (i.e. the stolen watch in a
case for theft)
3. Instruments of the offense (i.e. the hammer
used by accused to break the glass window in
a case for robbery).
Ownership of Property Seized Not Required
It is sufficient that the person against whom the
warrant is directed has control and possession of
the property sought to be seized.
Time of Making Search
General Rule: Day time.
Exception: Affidavit asserts that the property is
on the person or in the place to be searched,
the warrant may insert a direction that it may be
served at any time of the day or night.
Right to Break Door or Window
The searching officer may break any door or
window, or any part of the house if refused
admittance.
Search of Premises to be Made in Presence of
Two Witnesses
The following should at least be present during the
search:
1. Lawful occupant or any family member, or
2. Two witnesses of sufficient age and discretion
residing in the same locality
The absence of the lawful occupant does not taint
the regularity of the search provided that two
541
witnesses are present. (Rule 126, Section 8; Lucito
v. People, G.R. No. 192050, 2013)
Receipt for Property Seized
The searching officer must give a detailed receipt to
the lawful occupant.
In the absence of such occupant, must, in the
presence of at least two witnesses of sufficient age
and discretion residing in the same locality, leave
the receipt in the premises.
In Dangerous Drugs Act cases, the two-witness rule
shall not apply and shall instead follow Section 21
of DDA:
Section 21.Custody and Disposition of
Confiscated, Seized, and/or Surrendered
Dangerous Drugs, Plant Sources of
Dangerous Drugs, Controlled Precursors and
Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory
Equipment. – The PDEA shall take charge
and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well
as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized
and/or surrendered, for proper disposition in
the following manner:
(1) The apprehending team having initial
custody and control of the drugs shall,
immediately after seizure and confiscation,
physically inventory and photograph the
same in the presence of the accused or the
person/s from whom such items were
confiscated and/or seized, or his/her
representative or counsel, a representative
from the media and the Department of
Justice (DOJ), and any elected public official
who shall be required to sign the copies of
the inventory and be given a copy thereof;
(2) Within twenty-four (24) hours upon
confiscation/seizure of dangerous drugs,
plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well
as instruments/paraphernalia and/or
laboratory equipment, the same shall be
submitted to the PDEA Forensic Laboratory
for a qualitative and quantitative examination;
(3) A certification of the forensic laboratory
examination results, which shall be done
under oath by the forensic laboratory
examiner, shall be issued within twenty-four
(24) hours after the receipt of the subject
item/s: Provided, That when the volume of
the dangerous drugs, plant sources of
dangerous drugs, and controlled precursors
and essential chemicals does not allow the
completion of testing within the time frame, a
partial laboratory examination report shall be
provisionally issued stating therein the
quantities of dangerous drugs still to be
examined by the forensic laboratory:
Provided, however, That a final certification
shall be issued on the completed forensic
laboratory examination on the same within
the next twenty-four (24) hours;
(4) After the filing of the criminal case, the
Court shall, within seventy-two (72) hours,
conduct an ocular inspection of the
confiscated, seized and/or surrendered
dangerous drugs, plant sources of
dangerous drugs, and controlled precursors
and essential chemicals, including the
instruments/paraphernalia and/or laboratory
equipment, and through the PDEA shall
within twenty-four (24) hours thereafter
proceed with the destruction or burning of the
same, in the presence of the accused or the
person/s from whom such items were
confiscated and/or seized, or his/her
representative or counsel, a representative
from the media and the DOJ, civil society
groups and any elected public official. The
Board shall draw up the guidelines on the
manner of proper disposition and destruction
of such item/s which shall be borne by the
offender: Provided, That those item/s of
lawful commerce, as determined by the
Board, shall be donated, used or recycled for
legitimate purposes: Provided, further, That a
representative sample, duly weighed and
recorded is retained;
(5) The Board shall then issue a sworn
certification as to the fact of destruction or
burning of the subject item/s which, together
with the representative sample/s in the
custody of the PDEA, shall be submitted to
the court having jurisdiction over the case. In
all instances, the representative sample/s
542

shall be kept to a minimum quantity as
determined by the Board;
(6) The alleged offender or his/her
representative or counsel shall be allowed to
personally observe all of the above
proceedings and his/her presence shall not
constitute an admission of guilt. In case the
said offender or accused refuses or fails to
appoint a representative after due notice in
writing to the accused or his/her counsel
within seventy-two (72) hours before the
actual burning or destruction of the evidence
in question, the Secretary of Justice shall
appoint a member of the public attorney's
office to represent the former;
(7) After the promulgation and judgment in
the criminal case wherein the representative
sample/s was presented as evidence in
court, the trial prosecutor shall inform the
Board of the final termination of the case
and, in turn, shall request the court for leave
to turn over the said representative sample/s
to the PDEA for proper disposition and
destruction within twenty-four (24) hours from
receipt of the same; and
(8) Transitory Provision: a) Within twenty-four
(24) hours from the effectivity of this Act,
dangerous drugs defined herein which are
presently in possession of law enforcement
agencies shall, with leave of court, be burned
or destroyed, in the presence of
representatives of the Court, DOJ,
Department of Health (DOH) and the
accused/and or his/her counsel, and, b)
Pending the organization of the PDEA, the
custody, disposition, and burning or
destruction of seized/surrendered dangerous
drugs provided under this Section shall be
implemented by the DOH.
Note: As regards cases involving drugs, settled is
the rule that the absence of a prior surveillance or
test buy does not affect the legality of the buy-bust
operation. The Court has left to the discretion of
police authorities the selection of effective means to
apprehend drug dealers. A prior surveillance, much
less a lengthy one, is not necessary, especially
where the police operatives are accompanied by
their informant during the entrapment (Quinicot v.
People, G.R. No. 179700, 2009).
Delivery of Property and Inventory Thereof
Any violation thereof shall constitute contempt of
court:
1. The searching officer must deliver to the judge:
a. Property seized
b. Inventory thereof under oath
2. Judge shall summon the officer and ask for an
explanation, if the search warrant is not served
after 10 days from its date
3. The return of the search warrant shall be filed
and kept by the custodian of the log book on
search warrants
4. For DDA cases, refer to section 21 of DDA.
Inventory must be made at the scene of the
crime.
The searching officer may be held in contempt of
court if he/she fails to comply with court directive.
9. EXCEPTIONS TO THE SEARCH
WARRANT REQUIREMENT
Search warrant is not required in the following
instances:
1. Search incidental to lawful arrest
2. Seizure of evidence in “plain view”
3. Search of a moving vehicle
4. Consented warrantless search
5. Customs search
6. Stop and frisk (Terry searches)
7. Checkpoints
8. Exigent and emergency circumstances
9. Search of vessels and aircraft
10. Inspection of buildings and other premises for
the enforcement of fire, sanitary and building
regulations
Note: A public officer who effects a search in a
residence w/o a warrant may be liable for violation
of domicile and the private individual for trespass to
dwelling.
a. SEARCH INCIDENT TO A LAWFUL ARREST
543
 b. Lives and safety of the people are in
peril
4. Vehicle not searched

The arrest must precede the lawful search e. PLAIN VIEW SITUATION

Nevertheless, a search substantially Requisites

contemporaneous with an arrest is permissible if the
police have probable cause to make the arrest at
the outset of the search
The search is limited to the following:
1. For dangerous weapons
2. Anything which may have been used in the
commission of an offense
3. Anything which constitute proof in the
commission of the crime
Immediate possession and control rule:
1. Search may be done not only on the person of
the suspect but also w/in the permissible area
w/in the latter’s reach
2. The area from w/c he might gain possession of
a weapon or destroy evidence is covered by a
search incident to a lawful arrest
b. CONSENTED SEARCH
The consent to a warrantless search must be
voluntary, that is, it must be unequivocal, specific,
and intelligently given, uncontaminated by any
duress or coercion. Consent to a search is not to be
lightly inferred, but must be shown by clear and
convincing evidence. It is the State which has the
burden of proving, by clear and positive testimony,
that the necessary consent was obtained and that it
was freely and voluntary given. (Valdez v. People,
G.R. No. 170180, 2007)
A peaceful submission to a search and seizure is
not a consent or invitation thereto, but is merely
demonstration of regard for the supremacy of the
law. (People v. Nuevas, G.R. No. 170233, 2007)
c. SEARCH OF MOVING VEHICLES
Justified on the ground that it is not practicable to
secure a search warrant because the vehicle can
be quickly moved out of the locality or jurisdiction in
w/c the warrant must be sought.
1. A prior valid intrusion.
2. Evidence was inadvertently discovered by the
police.
3. The evidence must be immediately apparent.
4. Plain view is justified seizure of evidence
without further search.
f. STOP AND FRISK SITUATION
Requisites
1. Police officer observes unusual conduct.
2. Reasonable suspicion that person is engaged
in some type of criminal activity.
3. Identifies himself as a policeman upon
approach.
4. Makes reasonable inquiries.
5. There is reasonable fear for his own or other’s
safety thus he is entitled to conduct limited
search of the outer clothing of such persons in
an attempt to discover weapons that might be
used for assault.
g. ENFORCEMENT OF CUSTOM LAWS
h. REMEDIES FROM UNLAWFUL SEARCH
AND SEIZURE
A search warrant illegally obtained or secured or
which is issued in violation of the constitution or the
rules may be quashed through the proper motion as
in a motion to quash the search warrant. Also, when
evidence is illegally obtained, a motion to suppress
the evidence is in order. (Riano, pp. 298-299)
END OF TOPIC

d. CHECKPOINTS; BODY CHECKS IN

AIRPORT

Requisites
1. Passengers not subjected to body search
2. Limited to visual search P. PROVISIONAL REMEDIES
3. Under exceptional circumstances, as where:
a. Survival of the government is on the
balance, or

544
1. NATURE
2. KINDS OF PROVISIONAL
REMEDIES

1. NATURE

The provisional remedies in civil actions, in so far as

they are applicable, may be availed of in connection
with the criminal action deemed instituted.

Note: The requisites and procedure for availing of

these provisional remedies shall be the same as
those for civil cases.

2. KINDS OF PROVISIONAL REMEDIES

Kinds of provisional remedies

1. Attachment (Rule 57)
2. Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support pendent lite (Rule 61)
All these provisional remedies may be applied for in
criminal cases with respect to its civil aspect

Attachment, When Proper

1. Accused is about to abscond from the
Philippines;
2. Criminal action is based on a claim of money or
property embezzled or fraudulently misapplied
or converted;
3. When the accused has concealed, removed,
or disposed of his property, or is about to do
so; and
4. When the accused resides outside the
Philippines.

Note: Under R.A. 9208, in cases of trafficking in

persons, the court may motu propio issue
attachment and injunction.

END OF TOPIC

545
 7. Burden of proof; burden of
evidence
8. Presumptions
a. Conclusive Presumptions
b. Disputable Presumptions
9. Liberal construction of the rules
of evidence
10. Quantum of evidence (Weight
and sufficiency of evidence)
a. Proof beyond reasonable doubt
b. Preponderance of evidence
c. Substantial evidence
d. Clear and convincing evidence

B. JUDICIAL NOTICE; JUDICIAL

ADMISSIONS
1. What need not be proved
2. Matters of judicial notice
a. Mandatory
b. Discretionary
3. Judicial admissions
a. Effect of judicial admission
b. How judicial admissions may be
RULES ON EVIDENCE contradicted
4. Judicial notice of foreign laws,
law on nations and municipal
ordinance

A. GENERAL PRINCIPLES
1. Concept of evidence
2. Scope of the rules of evidence
3. Evidence in civil cases versus
evidence in criminal cases
4. Proof versus evidence C. OBJECT (REAL) EVIDENCE
5. Factum probans versus factum 1. Nature of object evidence
probandum 2. Requisites of admissibility
6. Admissibility of evidence 3. Categories of object evidence
a. Requisites for admissibility of 4. Demonstrative evidence
evidence 5. View of an object scene
b. Relevance of evidence and
6. Chain of custody, in relation to
collateral matters
c. Multiple admissibility Section 21 of the
d. Conditional admissibility Comprehensive Dangerous
e. Curative admissibility Drugs Act of 2002
f. Direct evidence and circumstantial 7. Rule on DNA evidence (A.M. No.
evidence
g. Positive evidence and negative
06-11-5-SC)
evidence a. Meaning of DNA
h. Competent evidence and credible b. Application for DNA testing order
evidence

546
 c. Post-conviction DNA testing;
Remedy
d. Assessment of probative value of
DNA evidence; Admissibility
e. Rules on evaluation of reliability of
the DNA testing methodology
D. DOCUMENTARY EVIDENCE
1. Meaning of documentary
evidence
2. Requisites of admissibility
3. Best evidence rule
a. Meaning of the rule
b. When applicable
c. Meaning of the original
d. Requisites for introduction of
secondary evidence
4. Rules on Electronic Evidence
(A.M. No. 01-7-01-SC)
a. Scope; Coverage; Meaning of
electronic evidence; Electronic data
message
b. Probative value of electronic
documents or evidentiary weight;
Method of proof
c. Authentication of electronic
documents and electronic
signatures
d. Electronic documents vis-à-vis
hearsay rule
e. Audio, photographic, video, and
ephemeral evidence
5. Parol evidence rule
a. Application
b. When parol evidence can be
introduced
c. Distinctions between the best
evidence rule
6. Authentication; proof of
documents
a. Meaning of authentication
b. Public documents; Private
documents
c. When a private writing requires
authentication; Proof of private
writing
d. When evidence of authenticity of a
private writing is not required;
Ancient documents
e. How to prove genuineness of a
handwriting
f. Public documents as evidence;
Proof of official record
g. Attestation of a copy
h. Public record of a public document
i. Proof of lack of record
j. How a judicial record is impeached
k. Proof of notarial documents
l. How to explain alterations in a
document
m. Documentary evidence in an
unofficial language
E. TESTIMONIAL EVIDENCE
1. Qualifications of a witness
2. Competency versus credibility
of a witness
3. Disqualifications of a witnesses
a. By reason of mental capacity or
immaturity
b. By reason of marriage
c. By reason of death or insanity of
adverse part
d. By reason of privileged
communication
4. Examination of a witness
a. Rights and obligations of a witness
b. Order in the examination of an
individual witness
i. Direct examination
ii. Cross examination
iii. Re-direct examination
iv. Re-cross examination
v. Recalling the witness
c. Leading questions; Misleading
questions
d. Methods of impeachment of
adverse party’s witness
e. How the witness is impeached by
evidence of inconsistent
statements; Laying the predicate
f. Evidence of the good character of a
witness
g. Judicial Affidavit Rule (A.M. No. 12-
8-8-SC)
5. Admissions and confessions
547
 a. Res inter alios acta rule 2. When to make an offer
b. Admission by a party 3. Objection
c. Admission by a third party
d. Admission by a co-partner or agent 4. Repetition of an objection
e. Admission by a conspirator 5. Ruling
f. Admission by privies 6. Striking out an answer
g. Admission by silence 7. Tender of excluded evidence
h. Confessions
i. Similar acts as evidence
6. Hearsay rule
a. Meaning of hearsay
b. Reason for exclusion of hearsay
c. Exceptions to the hearsay rule
i. Dying declaration
ii. Declaration against
interest
iii. Act or declaration about
pedigree
iv. Family reputation or
tradition regarding
pedigree
v. Common reputation
vi. Part of the res gestae
vii. Entries in the course of
business
viii. Entries in official records
ix. Commercial lists and the
like
x. Learned treaties
xi. Testimony or deposition at
a former trial
7. Opinion rule
a. Opinion of expert witness
b. Opinion of ordinary witness
8. Character evidence
a. Criminal cases
b. Civil cases A. GENERAL PRINCIPLES
9. Rule on Examination of a Child
Witness (A.M. No. 04-07-sc)
a. Applicability
b. Meaning of child witness
c. Competency of a child witness 1. CONCEPT OF EVIDENCE
d. Examination of a child witness
e. Live-link TV testimony of a child 2. SCOPE OF THE RULES OF
witness EVIDENCE
f. Videotaped deposition of a child 3. EVIDENCE IN CIVIL CASES
witness VERSUS EVIDENCE IN CRIMINAL
g. Hearsay exception in child abuse
CASES
cases
h. Sexual abuse shield rule 4. PROOF VERSUS EVIDENCE
i. Protective orders 5. FACTUM PROBANS VERSUS
FACTUM PROBANDUM
6. ADMISSIBILITY OF EVIDENCE
a. Requisites for admissibility of evidence
b. Relevance of evidence and collateral
F. OFFER AND OBJECTION matters
1. Offer of evidence c. Multiple admissibility

548
 d. Conditional admissibility
e. Curative admissibility
f. Direct evidence and circumstantial
evidence
g. Positive evidence and negative
evidence
h. Competent evidence and credible
evidence
7. BURDEN OF PROOF; BURDEN OF
EVIDENCE
8. PRESUMPTIONS
a. Conclusive Presumptions
b. Disputable Presumptions
9. LIBERAL CONSTRUCTION OF THE
RULES OF EVIDENCE
10. QUANTUM OF EVIDENCE (WEIGHT
AND SUFFICIENCY OF EVIDENCE)
a. Proof beyond reasonable doubt
b. Preponderance of evidence
c. Substantial evidence
d. Clear and convincing evidence
1. CONCEPT OF EVIDENCE
EVIDENCE is the means sanctioned by the Rules
of Court, ascertaining in a judicial proceeding the
truth respecting a matter of fact (Rule 128, Sec. 1)
When Evidence is Required
There is a need for the introduction of evidence
when the court has to resolve a question of fact.
When Evidence is NOT Required
1. When no factual issue exists in a case or
where the case presents only a question of law;
2. When the pleadings in a civil case do not
tender an issue of fact;
3. When parties to the action have agreed
upon/stipulated to the facts involved in the
litigation (Rule 30, Sec. 6); and
4. On matters of judicial notice (Rule 129, Sec. 1
to 3); and
5. On matters judicially admitted (Rule 129, Sec.
4)
Question of Law and Question of Fact
A question of law exists when the doubt or
controversy concerns the correct application of law
or jurisprudence to a certain set of facts, or when
the issue does not call for an examination of the
probative value of the evidence presented, the truth
or falsehood of facts being admitted. A question of
fact exists when the doubt or difference arises as to
the truth or falsehood of facts or when the query
invites calibration of the whole evidence considering
mainly the credibility of the witnesses, the existence
and relevancy of specific surrounding
circumstances as well as their relation to each other
and to the whole, and the probability of the
situation. (Eastern Shipping Lines, Inc. v. BPI/MS
Insurance Corp., and Mitsui Sumitomo Insurance
Co., Ltd., G.R. No. 193986, 2014)
Waiver of the Rules of Evidence
General Rule: The rules of evidence may be
waived. When an otherwise objectionable piece of
evidence is not objected to, the evidence becomes
admissible because of a waiver.
Exception: When the waiver amounts to a
transgression of the law, principles of morality, good
customs and public policy or when the rights of third
persons are violated, then there can be no waiver.
2. SCOPE OF THE RULES OF
EVIDENCE
General Rule - The rules of evidence shall be the
same in all courts and in all trials and hearings.
Exception – Except as provided by law or by the
Rules of Court (Rule 128, Section 2)
1. Naturalization Proceedings
2. Insolvency Proceedings
3. Cadastral Proceedings
4. Land Registration Cases
5. Election Cases
6. Other cases as may be provided for
by law
(Rule 1, Sec. 4)
Applicability
The rules on evidence, being part of the Rules of
Court, apply only to judicial proceedings.
While the definition of “evidence” under the Rules of
Court makes reference only to judicial proceeding,
the provisions of the Rules on Electronic Evidence
apply to all civil actions and proceedings, as well as
549
quasi-judicial and administrative cases (Rules on compulsion
Electronic Evidence, Sec. 2)

When Applicable
It is applicable to both civil and criminal cases.

When NOT Applicable

It does not apply to administrative or quasi-judicial Presumption
proceedings as administrative bodies are not bound of innocence
by the technical niceties of the rules obtaining in the attends the
court of law. (El Greco Ship Maning and accused
Management Corporation vs Commissioner of There is no throughout
Customs, G.R. No. 177188, 2008) Presumption presumption the trial until
of Innocence as to either the same has
As evidence that they were being prevented from party been
cultivating the land, the tenants presented affidavits overcome by
but the affiants were not cross-examined. The Court prima facie
held that the affidavits were admissible because in evidence of
Agrarian cases, the Rules of Court are not his guilt
applicable even in suppletory character. (Reyes vs.
Court of Appeals, G.R. No. 96492, 1992)

In administrative proceedings, the complainant has

the burden of proving with substantial evidence the
allegations in the complaint. While rules of evidence
prevailing in courts of law and equity shall not be An offer of
controlling, this assurance of a desirable flexibility in compromise
administrative procedure does not go as far as to is an implied
justify orders without basis in evidence having An offer to admission of
rational probative force. (First United Construction compromise guilt
Corp v. Valdez, G.R. No. 154108, 2008) Offer of does not, as a Except:
Compromise general rule, 1. In cases
3. EVIDENCE IN CIVIL CASES (Rule 130, Sec. amount to an involving
VERSUS EVIDENCE IN CRIMINAL 27) admission of quasi-
liability offenses
CASES 2.Those
allowed by
law to be
compromised

CIVIL CASES CRIMINAL

CASES
Quantum of Must prove by Guilt beyond
Proof preponderanc reasonable
e of evidence: doubt
Reason is
that there is
no
Attendance in Parties attend The accused presumption
Court by accord attends by and due to

550
 the fact that A party or a
the proof will defendant
only result in may be
a judgment of compelled to
pecuniary be a witness
damages or provided
establish civil Whether or not written The accused
right. a party can be interrogatorie cannot be
compelled to s and request compelled to
testify for admission testify
have been
served upon
him. (Rule 25,
Sec. 6 and
A plea of Rule 26, Sec.
guilty later 5)
Judicial withdrawn or
admission unaccepted
withdrawn offer of a
becomes plea of guilty
Withdrawal of
extrajudicial to a lesser
Plea/
admission offense is not
Admission
admissible in
evidence 4. PROOF VERSUS EVIDENCE
against the
accused who
made the
plea/offer

PROOF EVIDENCE

Applicable
only to
Circumstantial Not
criminal
Evidence applicable
cases (Rule
133, Sec. 4) The result or the
probative effect of
evidence. When the
requisite quantum of The medium or means
evidence of a by which a fact is
particular fact has proved or disproved.
been duly admitted
Doctor-Patient Not and given weight, the
Privileged Applicable result is called the
Applicable
Communicatio (Rule 130, proof of such fact.
n Sec. 24(c))

551
5. FACTUM PROBANS VERSUS If in doubt as to admissibility of the testimony given
FACTUM PROBANDUM in the court, the court should favor admissibility.
Otherwise, if the trial court judge erred in ruling and
excluded the same, the appeals court would be
precluded from reversing the ruling and taking such
testimony.

Admissibility Distinguished from Weight of

Evidence:
FACTUM
FACTUM PROBANS
PROBANDUM

ADMISSIBILITY WEIGHT
The probative or
evidentiary fact tending
to prove the fact in The ultimate fact to be
issue or the FACTUM proved or proposition
PROBANDUM. It is to be established.
the material evidencing
Has to do with whether
the proposition.
the item of evidence Has to do with the
meets the test of effect of the evidence
relevancy and admitted or its
competency so as to be tendency to convince
admitted in evidence. It and persuade the
is an affair of logic court. It depends on
(relevance) and law judicial evaluation.
(competence).
Factum probandum does not include matters of
judicial notice, conclusive presumptions and judicial
admissions as these matters need not be
established or proven.

6. ADMISSIBILITY OF EVIDENCE
a. REQUISITES FOR ADMISSIBILITY OF
EVIDENCE
The Evidence MUST Be:
1. Relevant – Relevant to the issue
2. Competent – Not excluded by the Rules on
Evidence, the law and the Constitution
These two elements correspond to the Two
Axioms of Admissibility:
1. Axiom of Relevancy - That none but facts
having rational probative value are admissible.
2. Axiom of Competency - All facts having
rational probative value are admissible unless
some specific rule forbids their admission.
The admissibility of the evidence depends on its
relevance and competency, while the weight of
evidence pertains to its tendency to convince and
persuade. (Tating v. Marcella, G.R. No. 15508,
2007)
While evidence may be admissible, it may be
entitled to little or no weight at all. Conversely,
evidence which may have evidentiary weight may
be inadmissible because a special rule forbids its
inception. (People v. Turco, G.R. No. 137757, 2000)
b. RELEVANCE OF EVIDENCE AND
COLLATERAL MATTERS

552

RELEVANCY – Evidence is relevant if it has such a
relation to the fact in issue as to induce belief in its
existence or non-existence (Rule 128, Sec. 4). The
evidence adduced should be directed to the matters
in dispute and any evidence which has neither
direct nor indirect relationship to such matters must
be set aside as irrelevant. This is determined by
logic, common sense and human experience. The
matter of relevance is one that is addressed to the
discretion of the court. (Riano, Evidence, 19)
The components of RELEVANT Evidence are:
1. Material – evidence offered upon a matter
properly in issue. It is directed toward a fact
within the range of allowable controversy.
2. Probative – Tendency of evidence to establish
the proposition that it is offered to prove
Competency – Facts having rational probative
value are admissible unless some rule or law
forbids their admission. If a rule or law excludes the
evidence, it is incompetent.
Rules of Exclusion – governed by the Rules or by
Statute
Some Exclusionary Rules:
1. 1987 Constitution
 Section 2 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 shall be inviolable, and no
search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of
the complainant and the witnesses he may
produce, and particularly describing the
place to be searched and the persons or
things to be seized.
 Section 3 (1) The privacy of
communication and correspondence shall
be inviolable except upon lawful order of
the court, or when public safety or order
requires otherwise, as prescribed by law.
(2) Any evidence obtained in violation of
this or the preceding section shall be
inadmissible for any purpose in any
proceeding.
 Section 12 (1) 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. (2) No torture,
force, violence, threat, intimidation, or any
other means which vitiate the free will shall
be used against him. Secret detention
places, solitary, incommunicado, or other
similar forms of detention are prohibited.
(3) Any confession or admission obtained
in violation of this or Section 17 hereof
shall be inadmissible in evidence against
him. (4) The law shall provide for penal
and civil sanctions for violations of this
section as well as compensation to and
rehabilitation of victims of torture or similar
practices, and their families.
 Section 17 No person shall be compelled
to be a witness against himself.
2. Section 201, Tax Reform Act of 1997 - A
document required by law to be stamped shall not
be admitted or used in evidence until the requisite
stamps are affixed thereto.
3. R.A. 1405, Law on Secrecy of Bank Deposits:
All deposits of whatever nature are absolutely
confidential and may not be examined, inquired,
looked into except upon written permission of the
depositor, or in cases of impeachment, or upon
order of a competent court in cases of bribery or
dereliction of duty of public officials or in cases
where the money is the subject matter of litigation
4. R.A. 4200, Wire-Tapping Act - Any
communication or spoken word or the existence,
contents, substance or any information contained
therein secured in violation of the Act shall not be
admissible in evidence in any judicial, quasi-judicial,
legislative or administrative hearing or investigation.
5. R.A. 9372, Human Security Act - Any listened
to, intercepted, and recorded communications,
messages, conversations, discussions, or spoken
or written words, or any part or parts thereof, or any
information or fact contained therein, including their
existence, content, substance, purport, effect, or
meaning, which have been secured in violation of
the pertinent provisions of this Act, shall absolutely
not be admissible and usable as evidence against
553
anybody in any judicial, quasi-judicial, legislative, or
administrative investigation, inquiry, proceeding, or
hearing.
6. R.A. 9745, Anti-Torture Act - Any confession,
admission or statement obtained as a result of
torture shall be inadmissible in evidence in any
proceedings, except if the same is used as
evidence against a person or persons accused of
committing torture.
7. A.M. 02-6-02-SC, Confidentiality Rule in
Adoption Cases - All hearings in adoption cases,
after compliance with the jurisdictional requirements
shall be confidential and shall not be open to the
public. All records, books and papers relating to the
adoption cases in the files of the court, the
Department, or any other agency or institution
participating in the adoption proceedings shall be
kept strictly confidential.
8. R.A. 9285, Alternative Dispute Resolution Act
of 2004 - Information obtained through mediation
proceedings shall be subject to the following
principles and guidelines:
(a) Information obtained through mediation shall be
privileged and confidential.
(b) A party, a mediator, or a nonparty participant
may refuse to disclose and may prevent any other
person from disclosing a mediation communication.
(c) Confidential Information shall not be subject to
discovery and shall be inadmissible if any
adversarial proceeding, whether judicial or quasi-
judicial, However, evidence or information that is
otherwise admissible or subject to discovery does
not become inadmissible or protected from
discovery solely by reason of its use in a mediation.
(d) In such an adversarial proceeding, the following
persons involved or previously involved in a
mediation may not be compelled to disclose
confidential information obtained during mediation:
(1) the parties to the dispute; (2) the mediator or
mediators; (3) the counsel for the parties; (4) the
nonparty participants; (5) any persons hired or
engaged in connection with the mediation as
secretary, stenographer, clerk or assistant; and (6)
any other person who obtains or possesses
confidential information by reason of his/her
profession.
(e) The protections of this Act shall continue to
apply even of a mediator is found to have failed to
act impartially.
(f) a mediator may not be called to testify to provide
information gathered in mediation. A mediator who
is wrongfully subpoenaed shall be reimbursed the
full cost of his attorney's fees and related expenses.
9. R.A. 8505, Rape Victim Assistance and
Protection Act of 1998
In prosecutions for rape, evidence of complainant's
past sexual conduct, opinion thereof or of his/her
reputation shall not be admitted unless, and only to
the extent that the court finds, that such evidence is
material and relevant to the case. (Section 6)
The Exclusionary Rule – Commonly used for
evidence excluded by the Constitution. It is applied
to cases where the challenged evidence is quite
clearly direct or primary in its relationship to the
prior arrest or search. (Herrera, Remedial Law Vol
V, 37)
Petitioner argues that the urine samples collected
are inadmissible as this was done without the
assistance of counsel and hence violative of his
constitutional rights. Petitioner is wrong, what the
Constitution prohibits is the use of physical or moral
compulsion to extort communication from the
accused, but not an inclusion of his body in
evidence, when it may be material. The situation in
the case at bar falls within the exemption under the
freedom from testimonial compulsion since what
was sought to be examined came from the body of
the accused. This was a mechanical act the
accused was made to undergo which was not
meant to unearth undisclosed facts but to ascertain
physical attributes determinable by simple
observation. (Gutang v. People, G.R. No. 135406,
2000)
The SC ruled that the extrajudicial confession of
appellant, to the bantay bayan which was taken
without counsel is inadmissible in evidence. The
court ruled that the bantay bayan may be deemed
to be a law enforcement officer within the
contemplation of Article III, Section 12 of the
Constitution. Thus, without ruling on the legality of
the actions taken particularly on the authority to
conduct a custodial investigation, any inquiry he
makes has the color of a state-related function and
objective insofar as the entitlement of a suspect to
his constitutional rights provided for under Article III,
554
Section 12 of the Constitution, otherwise known as
the Miranda Rights, is concerned. (People v. Lauga,
G.R. No. 186228, 2010)
COLLATERAL MATTERS – refers to matters other
than the fact in issue. These are matters outside
the controversy, or are not directly connected with
the principal matter or issue in dispute, as indicated
in the pleadings of the parties.
General Rule: Evidence on collateral matters is not
allowed.
Exception: Evidence on collateral matters may be
admitted if it tends in any reasonable degree to
establish the probability or improbability of the fact
in issue (Rule 128, Sec. 4).
For instance, when a witness testifies having seen
the killing of the victim by the accused, his
testimony is direct evidence for it tends to prove the
fact in issue without the aid of inference or
presumption; but when he testifies to the conduct of
the accused prior to the commission of the crime or
immediately thereafter from which an inference may
be made as to the probability or improbability of the
fact in issue, his testimony is circumstantial
evidence for it tends to prove collateral matters
which with the aid of inference may tend to
establish that probability or improbability of the fact
in issue. (Herrera, Remedial Law Vol V, 63 – 64)
c. MULTIPLE ADMISSIBILITY
When a proffered evidence is admissible for two or
more purposes. It may be admissible for one
purpose but inadmissible for another or vice versa.
It may also mean that it may be admissible against
one party but not against another
Example: Admissions admissible against the
declarant but not against his co-accused under the
res inter alios acta rule.
The confession of the accused was not competent
as against his co-accused for being hearsay.
However, the confession of the accused may still be
admissible as evidence of his own guilt. (People v.
Yatco, G.R. No. L-9181, 1955)
d. CONDITIONAL ADMISSIBILITY
When a piece of evidence appears to be relevant as
it is connected with other pieces of evidence not yet
offered or proved, such piece of evidence may be
conditionally admitted subject to the condition that
its relevancy and competency be established at a
later time. If the condition is not met, the evidence
should be rejected.
Example: In an action by A against B for recovery
of a real property, plaintiff offered a document
showing that the property belonged to X. On
objection of the defendant upon the ground of
irrelevancy, plaintiff stated that he would prove later
by other evidence that X, the original owner sold the
property to Y and the latter sold it to Z from whom
plaintiff acquired title by purchase. The Court may
admit the evidence conditionally until the other facts
mentioned by plaintiff are proved. (Herrera,
Remedial Law, Vol V, 29)
In a case of any intricacy it is impossible for a judge
of first instance, in the early stages of the
development of the proof, to know with any certainty
whether testimony is relevant or not; and where
there is no indication of bad faith on the part of the
attorney offering the evidence, the court may as a
rule safely accept the testimony upon the statement
of the attorney that the proof offered will be
connected later. (Prats Co. vs. Phoenix Assurance,
G.R. No. L-28607, 1929)
e. CURATIVE ADMISSIBILITY
When a party is allowed to present inadmissible
evidence over the objection of the opposing party,
such opposing party may be allowed to introduce
otherwise inadmissible evidence to contradict the
previously admitted inadmissible evidence and to
remove any prejudice caused by its admission.
Example: At the trial, plaintiff testified that
defendant is a man who never pays his debts as
shown by his refusal to pay his debts to other
persons. This evidence is inadmissible but was
admitted by mistake. In such case, in fairness to the
defendant, the Court may allow him to explain his
dealings with such other persons. (Herrera,
Remedial Law Vol V, 26)
In our jurisdiction, the principle of curative
admissibility should not be made to apply where the
evidence was admitted without objection because
the failure to object constitutes a waiver of the
inadmissibility of the evidence. Inadmissible
evidence not objected to becomes admissible.
(Riano, Evidence, 33)
f. DIRECT AND CIRCUMSTANTIAL EVIDENCE
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 DIRECT CIRCUMSTANTIAL NEGATIVE
POSITIVE EVIDENCE
EVIDENCE EVIDENCE EVIDENCE

When the witness

Evidence that indirectly
That which proves the affirms that a fact did
proves a fact in issue
fact in dispute without or did not occur. Such When the witness
through an inference
the aid of any evidence is entitled to states that an event did
which the fact finder
inference or greater weight since not occur or that the
draws from the
presumption. the witness represents state of facts alleged to
evidence established.
of his or her personal exist does not actually
knowledge the exist.
presence or absence
of a fact.

Example: Witness
testified that he saw the
accused with blood on
his shirt and hands and Example: X said he
running from the scene drank liquor. Y says X
Example: Witness of the crime where the did not.
saw the accused victim was lying dead. Note: They have the
Example: Y said that
inflict a blow which The next day, the same weight because
he does not know that
caused the victim’s accused was nowhere they are both positive.
X drank liquor.
death to be found in his place It is different from Y
of residence. Taken saying that he does not
altogether, inference of know that X drank
guilt can be drawn that liquor.
the accused killed the
victim.

h. COMPETENT AND CREDIBLE EVIDENCE

Direct and circumstantial evidence are of the same
probative value because no greater degree of
certainty is required when the evidence is
circumstantial than when it is direct.

g. POSITIVE AND NEGATIVE EVIDENCE

556
COMPETENT CREDIBLE The defendant has the burden of proof if he raises
EVIDENCE EVIDENCE an affirmative defense on the complaint of the
plaintiff.

NOTE:

When evidence is not  In a civil case, the plaintiff is always

One that is not only admissible compelled to allege affirmative assertions
excluded by the Rules, evidence but is in his complaint. When he alleges a cause
statutes or believable and used by of action, he must necessarily allege that
Constitution. the court in deciding a he has a right and that such right was
case. violated by the other party. Thus, he has
the duty to prove the existence of this
affirmative allegation.

Example: School CRIMINAL CASES - The burden of proof is on the

teacher who passed prosecution by reason of presumption of innocence.
by saw the accused
shoot the victim. His The burden of proof as to the guilt of the accused
testimony is credible. must be borne by the prosecution. (Except in cases
He is one who where the accused pleads self-defense, in which
practices a noble case, the accused has the burden of proving the
profession and he is existence of the self-defense) It is required that
neutral witness. courts determine first if the evidence of the
prosecution has at least shown a prima facie case
before considering the evidence of the defense. If
the prosecution does not have a prima facie case, it
is futile to waste time in considering the evidence
presented by the defense. Should the prosecution
succeed in establishing a prima facie case against
the accused, the burden is shifted upon the
7. BURDEN OF PROOF AND BURDEN OF accused to prove otherwise.
EVIDENCE
Under the Speedy Trial Act, if the accused was
Burden Of Proof (Rule 131, Sec. 1) NOT brought to trial within the time required, the
information shall be dismissed on the motion of the
Burden of proof is the duty of a party to present accused. In this case, the burden of proof of
evidence on the facts in issue necessary to supporting such motion is with the accused. (R.A.
establish his claim or defense by the amount of 8483, Sec. 13)
evidence required by law.
Degree of Proof That Satisfies the Burden of
Upon Whom the Burden of Proof Rests Proof

CIVIL CASES - the plaintiff has the burden of proof Civil Cases – Preponderance of evidence
to show the truth of his allegations if the defendant
raises a negative defense. Criminal Cases -

a) To sustain conviction – Evidence of guilt

beyond reasonable doubt.

557
b) Preliminary investigation – probable cause -
engenders a well-founded belief of the fact of
the commission of a crime.
c) Issuance of warrant of arrest– Probable cause Obligation of a party to Duty of a party to go
(i.e., that there is reasonable ground to believe present evidence on the forward with the
that a criminal offense has been committed and facts in issue necessary evidence to
that the accused committed the offense). to establish his claim or overthrow any prima
defense by the amount facie presumption
Administrative Cases – Substantial evidence of evidence required by against him
law
Hierarchy of Evidence
1. Proof beyond reasonable doubt
2. Clear and convincing evidence
3. Preponderance of evidence
4. Substantial evidence

Burden of Evidence The burden of proof is Generally

Burden of evidence is the duty of a party to go fixed by the pleadings determined by the
forward with the evidence to overthrow any prima developments of the
facie presumption against him. (Bautista v. trial or by provisions
Sarmiento, G.R. No. L-45137, 1985) of substantive law or
procedural rules
In both civil and criminal cases, the burden of which may relieve
evidence lies on the party who asserts an the party from
affirmative allegation. presenting evidence
on the facts alleged.
Upon Whom the Burden of Evidence Rests
1. Civil Cases - The plaintiff has to establish his
case by preponderance of evidence. If he
claims a right granted or created by law, he
must prove such right. (Sps. Guidangen v.
Wooden G.R. No. 174445, 2012)
Does not generally shift May shift from one
2. Criminal Cases - The prosecution has to prove during the course of the side to the other as
its affirmative allegations in the information trial. trial unfolds.
(i.e., the elements of the crime as well as the
attendant circumstances); while the defense
has to prove its affirmative allegations
regarding the existence of justifying or
exempting circumstances, absolutory causes or
mitigating circumstances.

Principle of Negative Averments

General Rule: Negative allegations need not be
proved, whether in a civil or criminal action.
Exception: When such negative allegations are
essential parts of the cause of action or defense in
BURDEN OF PROOF BURDEN OF a civil case, or are essential ingredients of the
EVIDENCE offense in a criminal case or defenses thereto.

558
 Exception to the exception: that is not mandated
In CIVIL CASES, even if the negative by law
allegation is an essential part of the cause
of action or defense, such negative
allegation does not have to be proved if it
is only for the purpose of denying the
existence of a document which should
properly be in the custody of the adverse
party. This does not This has legal effect
necessarily establish a and establishes a legal
legal relation between relation between or
or among the facts among the facts

In CRIMINAL CASES, if the subject of a negative

averment inheres to the offense as an essential
ingredient thereof, the prosecution has the burden
of proving the same. In view, however, of the
difficult office of proving a negative allegation, the
prosecution, under such circumstance, needs to do
no more than make a prima facie case from the
best evidence obtainable.
8. PRESUMPTIONS
Presumption – is an assumption of fact resulting
from a rule of law which requires such fact to be
assumed from another fact found or otherwise
established in the action.
A presumption is an inference as to the existence or
non-existence of a fact which courts are permitted
to draw from the proof of other facts.
Difference between Inference and Presumption:
Effect of Presumption
A party in whose favor the legal presumption exists
may invoke such presumption to establish a fact in
issue and need not introduce evidence to prove the
fact for the presumption is prima facie proof of the
fact presumed.
A presumption shifts the burden of evidence or the
burden of going forward with the evidence. It
imposes on the party against whom it is directed the
burden of going forward with evidence to meet or
rebut the presumption. It does not, however, shift
the burden of proof.
Classification of Presumptions
1. PRESUMPTION JURIS OR OF LAW – is a
deduction which the law expressly directs to be
made from particular facts.
2. PRESUMPTION HOMINIS OR OF FACT –is a
deduction which reason draws from facts
proved without an express direction from the
law to that effect.

INFERENCE PRESUMPTION

PRESUMPTION OF PRESUMPTION OF
LAW FACT

A factual conclusion It is mandated by law

drawn from other facts

559
 Certain inference Discretion is vested in
must be made the tribunal as to Requisites as to the Party CLAIMING Estoppel:
whenever the facts drawing the inference 1. Lack of knowledge of truth as to the facts in
appear which furnish question;
the basis of the 2. Reliance in good faith upon the conduct or
inference statements of the party to be stopped; and
3. Action or inaction based thereon led to his
detriment or prejudice

b. ESTOPPEL against Tenant – the tenant is not

Reduced to fixed rules Derived wholly and
and form a part of the directly from the
system of circumstances of the
jurisprudence particular case by
means of the common
experience of mankind
permitted to deny title of his landlord at the time of
the commencement of the land-lord tenant
relationship. Estoppel may attach even if the
landlord does not have the title at the
commencement of the relations. If the title asserted
is one that is alleged to have been acquired
subsequent to the commencement of that relation,
the presumption will not apply (Rule 131, Sec. 2(b)).

2. DISPUTABLE PRESUMPTION (Rule 131, Sec.

3)

Disputable presumptions are satisfactory if

uncontradicted, but they may be contradicted and
overcome by other evidence.
PRESUMPTION JURIS may be divided into:
1. CONCLUSIVE PRESUMPTION (juris et de The following are DISPUTABLE PRESUMPTIONS:
jure) – inferences which the law makes so
peremptory that it will not allow them to be
overturned by any contrary proof however
strong. (Rule 131, Sec. 2)
(a) That a person is innocent of crime or
Conclusive Presumptions (Rule 131, Sec. 2) wrong;

a. ESTOPPEL IN PAIS – whenever a party has, (b)
by his own declaration, act, or omission,
intentionally and deliberately lead another to believe
a particular thing to be true and act upon such (c)
belief, he cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify
it. (Rule 131, Sec. 2(a)) (d)
Estoppel is effective only as between the parties
thereto or their successors in interest. (Civil Code, (e)
Art. 1439)
That an unlawful act was done with an
unlawful intent;
That a person intends the ordinary
consequences of his voluntary act;
That a person takes ordinary care of his
concerns;
That evidence willfully suppressed would
be adverse if produced;

Requisites as to the Party to be Estopped: (f) That money paid by one to another was
1. Conduct amounting to false representation or due to the latter;
concealment;
2. Intent or at least expectation that the conduct (g) That a thing delivered by one to another
shall be acted upon; and belonged to the latter;
3. Knowledge, actual or constructive of the real
facts (h) That an obligation delivered up to the
debtor has been paid;

560
 (i) That prior rents or installments had been (v)
paid when a receipt for the later one is
produced;
(w)
(j) That a person found in possession of a
thing taken in the doing of a recent
wrongful act is the taker and the doer of
the whole act; otherwise, that things which
a person possess, or exercises acts of
ownership over, are owned by him;
That a letter duly directed and mailed was
received in the regular course of the mail;
That after an absence of seven years, it
being unknown whether or not the
absentee still lives, he is considered dead
for all purposes, except for those of
succession.

(k) That a person in possession of an order on

himself for the payment of the money, or
the delivery of anything, has paid the
money or delivered the thing accordingly;
(l) That a person acting in a public office was
regularly appointed or elected to it;
The absentee shall not be considered dead for the
purpose of opening his succession till after an
absence of ten years. If he disappeared after the
age of seventy-five years, an absence of five years
shall be sufficient in order that his succession may
be opened.

(m) That official duty has been regularly
performed;
(n) That a court, or judge acting as such,
whether in the Philippines or elsewhere,
was acting in the lawful exercise of
jurisdiction;
(o) That all the matters within an issue raised
in a case were laid before the court and
passed upon by it; and in like manner that
all matters within an issue raised in a
dispute submitted for arbitration were laid
before the arbitrators and passed upon by
them;
(p) That private transactions have been fair
and regular;
(q) That the ordinary course of business has
been followed;
(r) That there was a sufficient consideration
for a contract;
(s) That a negotiable instrument was given or
indorsed for a sufficient consideration;
(t) That an endorsement of negotiable
instrument was made before the
instrument was overdue and at the place
where the instrument is dated;
(u) That a writing is truly dated;
The following shall be considered dead for all
purposes including the division of the estate among
the heirs:
1. A person on board a vessel lost during a
sea voyage, or an aircraft with is missing,
who has not been heard of for four years
since the loss of the vessel or aircraft;
2. A member of the armed forces who has
taken part in armed hostilities, and has
been missing for four years;
3. A person who has been in danger of death
under other circumstances and whose
existence has not been known for four
years;
4. If a married person has been absent for
four consecutive years, the spouse present
may contract a subsequent marriage if he
or she has well-founded belief that the
absent spouse is already death. In case of
disappearance, where there is a danger of
death the circumstances hereinabove
provided, an absence of only two years
shall be sufficient for the purpose of
contracting a subsequent marriage.
However, in any case, before marrying
again, the spouse present must institute a
summary proceedings as provided in the
Family Code and in the rules for
declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse.

561

(x) That acquiescence resulted from a belief
that the thing acquiesced in was
conformable to the law or fact;
(y) That things have happened according to
the ordinary course of nature and ordinary
nature habits of life;
(z) That persons acting as copartners have
entered into a contract of co-partnership;
(aa) That a man and woman deporting
themselves as husband and wife have
entered into a lawful contract of marriage;
(bb) That property acquired by a man and a
woman who are capacitated to marry each
other and who live exclusively with each
other as husband and wife without the
benefit of marriage or under void marriage,
has been obtained by their joint efforts,
work or industry.
(cc) That in cases of cohabitation by a man and
a woman who are not capacitated to marry
each other and who have acquire properly
through their actual joint contribution of
money, property or industry, such
contributions and their corresponding
shares including joint deposits of money
and evidences of credit are equal.
(dd) That if the marriage is terminated and the
mother contracted another marriage within
three hundred days after such termination
of the former marriage, these rules shall
govern in the absence of proof to the
contrary:
1. A child born before one hundred eighty
days after the solemnization of the
subsequent marriage is considered to
have been conceived during such
marriage, even though it be born within the
three hundred days after the termination of
the former marriage.
2. A child born after one hundred eighty days
following the celebration of the subsequent
marriage is considered to have been
conceived during such marriage, even
though it be born within the three hundred
days after the termination of the former
marriage.
(ee) That a thing once proved to exist continues
as long as is usual with things of the
nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book,
purporting to be printed or published by
public authority, was so printed or
published;
(hh) That a printed or published book,
purporting contain reports of cases
adjudged in tribunals of the country where
the book is published, contains correct
reports of such cases;
(ii) That a trustee or other person whose duty
it was to convey real property to a
particular person has actually conveyed it
to him when such presumption is
necessary to perfect the title of such
person or his successor in interest;
(jj) That, except for purposes of succession,
when two persons perish in the same
calamity, such as wreck, battle, or
conflagration, and it is not shown who died
first, and there are no particular
circumstances from which it can be
inferred, the survivorship is determined
from the probabilities resulting from the
strength and the age of the sexes,
according to the following rules:
1. If both were under the age of fifteen years,
the older is deemed to have survived;
2. If both were above the age sixty, the
younger is deemed to have survived;
562
 3. If one is under fifteen and the other above
sixty, the former is deemed to have
survived;
4. If both be over fifteen and under sixty, and
the sex be different, the male is deemed to
have survived, if the sex be the same, the
older;
5. If one be under fifteen or over sixty, and
the other between those ages, the latter is
deemed to have survived.
(kk) That if there is a doubt, as between two or
more persons who are called to succeed
each other, as to which of them died first,
whoever alleges the death of one prior to
the other, shall prove the same; in the
absence of proof, they shall be considered
to have died at the same time.
Some Disputable Presumptions Explained:
1. Presumption of innocence– Applies to both civil
and criminal cases.
BASIS - founded on the principles of justice and is
intended not to protect the guilty but to prevent the
conviction of an innocent person.
This presumption accompanies the accused
throughout the trial down to the moment of
conviction. This presumption disappears after
conviction and the appellate court then will presume
the accused guilty.
By reason of this presumption, an accused is not
called upon to offer evidence on his behalf for his
freedom is forfeited only if the requisite quantum of
proof necessary for conviction be in existence.
EQUIPOISE RULE: Where the evidence gives rise
to two probabilities, one consistent with defendant’s
innocence, and another indicative of his guilt, that
which is favorable to the accused should be
considered.
2. A person takes ordinary care of his concerns
All men are presumed to be sane and normal and
subject to be moved by substantially the same
motives.
When of age and sane, they must take care of
themselves. Courts operate not because one
person has been defeated or overcome by another
but because he has been defeated or overcome
illegally. There must be a violation of law, the
commission of what the law known as an actionable
wrong before the courts is authorized to lay hold of
the situation and remedy it.
3. Possession of stolen goods
This is not in conflict with the presumption of
innocence. At the start of the criminal case, the
court will apply the presumption of innocence. But
once the prosecution is able to prove that a certain
object has been unlawfully taken, that there is a
crime of theft committed and that the prosecution
has also proven that the accused is in possession
of this object unlawfully taken, and then the
presumption of innocence disappears. The new
presumption of guilt takes place.
4. A person acting in a public office was
regularly appointed or elected to it
REASON - It would cause great inconvenience if in
the first instance strict proof were required of
appointment or election to office in all cases where
it might be collaterally in issue.
The burden of proof is on the adverse party to show
that he was not appointed or designated.
5. An official duty has been regularly performed
REASONS
a. Innocence and not the wrongdoing is to be
presumed;
b. An official oath will not be violated;
c. A republican form of government cannot
survive unless a limit is placed upon
controversies and certain trust and confidence
reposed in each government, department, or
agent at least to the extent of such
presumption.
6. The presumption of regularity and legality of
official acts is applicable to criminal as well as
civil cases.
563
This presumption of authority is not confined to
official appointees. It has been extended to
persons who have been appointed pursuant to a
local or special statute to act in quasi-public or
quasi-official capacities and to professional men like
surgeons and lawyers.
7. Regularity of judicial proceedings
The court rendering the judgment is presumed to
have jurisdiction over the subject matter and the
parties and to have rendered a judgment valid in
every respect.
Jurisdiction is presumed in all cases, be it superior
or inferior court.
However, jurisdiction to render a judgment in a
particular case or against a particular case, or
against persons may not be presumed when the
record itself shows that jurisdiction has not been
acquired or there was something on the record
showing the absence of jurisdiction.
8. Private transactions have been done with
regularity and fairly
An individual intends to do right rather than wrong
and intends to only what he has the right to do.
In the absence of proof to the contrary, there is a
presumption that all men act fairly honestly, and in
good faith.
9. Ordinary course of business has been
followed
Those who were engaged in a given trade or
business are presumed to be acquainted with the
general customs and usages of the occupation and
with such other facts as are necessarily incident to
the proper conduct of the business.
10. Evidence willfully suppressed would be
adverse if produced.
The natural conclusion is that the proof, if produced,
instead of rebutting, would support the inference
against him and the court is justified in acting upon
the conclusion.
No presumption of legitimacy or illegitimacy
(Rule 131, Sec. 4)
A child born after three hundred days following the
dissolution of a marriage or the separation of the
spouses will not be presumed legitimate or
illegitimate. Whoever alleges the legitimacy or
illegitimacy of such child must prove his allegation.
9. LIBERAL CONSTRUCTION OF THE
RULES OF EVIDENCE
These rules shall be liberally construed in order to
promote their objective of securing a just, speedy,
and inexpensive disposition of every action and
proceeding. (Rule 1, Sec. 6)
Rules on Electronic Evidence shall be liberally
construed to assist the parties in obtaining a just,
expeditious, and inexpensive determination of
cases. (A.M. No. 01-7-01-SC, Rule 2, Sec. 2)
10. QUANTUM OF EVIDENCE (WEIGHT
AND SUFFICIENCY OF EVIDENCE)
Proof Beyond Reasonable Doubt (Rule 133 Sec.
2)
In a criminal case, the accused is entitled to an
acquittal unless his guilt is shown beyond
reasonable doubt.
Proof beyond reasonable doubt does not mean
such a degree of proof as excluding the possibility
of error, produces absolute certainty.
Moral certainty only is required, or that degree of
proof which produces conviction in an unprejudiced
mind.
Clear And Convincing Evidence
Evidence is clear and convincing if it produces in
the mind of the trier of fact a firm belief or conviction
as to allegations sought to be established. (Black’s
Law Dictionary, 5th ed., 596)
Clear and convincing evidence is evidence
indicating that the thing to be proved is highly
probable or reasonably certain.
This is a greater burden than preponderance of
evidence, the standard applied in most civil trials,
but less than evidence beyond a reasonable doubt,
the norm for criminal trials. (Black’s Law Dictionary,
8th ed., 596)
The rule is that charges of misconduct against
judges should be proven by clear and convincing
evidence, otherwise they should be dismissed.
(Pesole v. Rodriguez, A.M. No. 755-MJ, 1978)
564

Preponderance Of Evidence (Rule 133, Sec. 1)
In civil cases, the party having the burden of proof
must establish his case by a preponderance of
evidence. (Rule 133, Sec. 1)
In cases filed before administrative and quasi-
judicial bodies, a fact may be deemed established if
it is supported by substantial evidence.
Substantial evidence is that amount of relevant
evidence which a reasonable mind might accept as
adequate to justify a conclusion.

In civil cases, the party having the burden of proof END OF TOPIC
must establish his case by preponderance of
evidence, or that evidence which is of greater
weight or is more convincing than that which is in
opposition to it. (BPI v. Reyes, G.R. 157177, 2008)

It does not mean absolute truth; rather, it means

that the testimony of one side is more believable
than that of the other side, and that the probability
B. JUDICIAL NOTICE;
of truth is on one side than on the other. (Rivera v.
Court of Appeals, G.R. No. 115625, 1998)

Land Bank failed to prove that the amount allegedly JUDICIAL ADMISSIONS
“miscredited” to Oñate’s account came from the
proceeds of the pre-terminated loans of its clients. It
is worth emphasizing that in civil cases, the party
making the allegations has the burden of proving
them by preponderance of evidence. Mere
allegation is not sufficient. (Land Bank of the
Philippines v. Emmanuel C. Oñate, G.R. No.
192371, 2014)
1. WHAT NEED NOT BE PROVED
Factors which the court may consider in 2. MATTERS OF JUDICIAL NOTICE
determining where the preponderance or superior a. Mandatory
weight of evidence lies: b. Discretionary
1. All the facts and circumstances of the case; 3. JUDICIAL ADMISSIONS
2. The witnesses’ a. Effect of judicial admission
 manner of testifying; b. How judicial admissions may be
 their intelligence; contradicted
 their means and opportunities of 4. JUDICIAL NOTICE OF FOREIGN
knowing the facts to which they are
testifying; LAWS, LAW ON NATIONS AND
 the nature of the facts to which they MUNICIPAL ORDINANCE
testify;
 the probability or improbability of their
testimony; 1. WHAT NEED NOT BE PROVED
 their interest or want of interest; a. Facts which are subject to judicial
 personal credibility so far as the same notice
may legitimately appear upon the trial. b. Facts which are legally presumed
3. The number of witnesses (though c. Facts which are admitted or which are
preponderance is not necessarily with the not denied in the answer, provided
greater number.) (Rule 133, Sec. 1) they have been sufficiently alleged.
d. Allegations contained in the complaint
Substantial Evidence (Rule 133, Sec. 5) or answer immaterial to the issues.
e. Those which are subject of an agreed
statement of facts between the parties
as well as those admitted by the party
in the course of the proceedings in the
same case

565
 f. Facts peculiarly within the knowledge
of the opposite party (Gesmundo,
Evidence Basic Principles and
Selected Problems, 1, 2011,)

1. Existence and territorial extent of states

2. MATTERS OF JUDICIAL NOTICE

JUDICIAL NOTICE – cognizance of certain facts
which judges may properly take and act on without
proof because they already know them.
The territorial extent of the nation and of the several
states and the division of states into towns,
countries and other political subdivisions are
generally regulated by public laws and also matters
of general notoriety. Hence the courts do not
require proof of such facts. (Herrera, Remedial Law
Vol V, 78-79)

Object of Judicial Notice

Judicial notice is based on convenience and
expediency. It would certainly be superfluous,
inconvenient, and expensive both to parties and the 2. Their political history, Forms of
court to require proof, in the ordinary way, of facts government and symbols of nationality,
which are already known to the courts.
3. The law of nations
Direct Effect of Judicial Notice
Judicial notice relieves the parties from the
necessity of introducing evidence to prove the fact
noticed. It makes evidence unnecessary.
The law of nations, as opposed to foreign law, is
The stipulation and admission of the parties or subject to mandatory judicial notice as the
counsel cannot prevail over the operation of the Philippines adopts the generally accepted principles
doctrine of judicial notice, and such stipulation and of international law as part of the law of the land.
admissions are all subject to the operation of the
doctrine.

Judge’s Personal Knowledge of the Facts

Judicial notice is not judicial knowledge. The mere 4. The admiralty and maritime courts of
personal knowledge of the judge is not the judicial the world and their seals
knowledge of the court, and he is not authorized to
make his individual knowledge of a fact, not
generally or professionally known, the basis of his
action. Judicial cognizance is taken only of those
matters which are “commonly” known. (Spouses
Omar And Moshiera Latip v. Chua, G.R. No.
177809, 2009)
5. The political constitution and history of
a. WHEN MANDATORY the Philippines,

MANDATORY- takes place at the court’s own

initiative and it needs no hearing.

When Judicial Notice is Mandatory

(Rule 129, Sec. 1)

566
 6. The official acts of legislative, executive
and judicial departments of the
Philippines,
7. The laws of nature,
Example: The recurrence of seasons
8. The measure of time
Example: There are 24 hours in a day
9. The geographical divisions
Example: Certain cities are divided into lots, blocks
and streets.
b. WHEN DISCRETIONARY
DISCRETIONARY - may be at the court’s own
initiative or on request of a party. A hearing is
necessary.
Purpose of hearing - not for the presentation of
evidence but to afford the parties reasonable
opportunity to present information relevant to the
propriety of taking such judicial notice or to the
tenor of the matter to be noticed.
Test of Notoriety
The doctrine of judicial notice rests on the wisdom
and discretion of the courts. The power to take
judicial notice is to be exercised by the courts with
caution; care must be taken that the requisite
notoriety exists; and every reasonable doubts upon
the subject should be promptly resolved in the
negative.
For a matter to be taken judicial notice of by the
courts of law, it must be a subject of common and
general knowledge. In other words, judicial notice of
facts is measured by general knowledge of the
same facts. A fact is said to be generally recognized
or known when its existence or operation is
accepted by the public without qualification or
contention. The test is whether the act involved is
so notoriously known as to make it proper to
assume its existence without proof. The fact that a
belief is not universal, however, is not controlling for
it is very seldom that any belief is accepted by
everyone. It is enough that the matters are familiarly
known to the majority of mankind or those persons
with the particular matter in question (20 Am Jur 49-
50; Martin, Rules of Court 37, Second Edition).
Furthermore, a matter may be personally known to
the judge and yet to be a matter of judicial
knowledge and vice versa, a matter may not be
actually known to an individual judge, and
nevertheless be a proper subject of judicial
cognizance. (Republic v. Court of Appeals, G.R. No.
L-54886, 1981)
Judicial notice is limited to facts evidenced by public
records and facts of general notoriety. A judicially
noticed fact must be one NOT subject to a
reasonable dispute. Thus, a court cannot take
judicial notice of a factual matter in controversy.
When Judicial Notice is Discretionary
(Rule 129, Sec. 2)
1. The matter is one of public or common
knowledge
“Commonly Known”
Things of “common knowledge,” of which courts
take judicial notice, may be matters coming to the
knowledge of men generally in the course of the
ordinary experiences of life, or they may be matters
which are generally accepted by mankind as true
and are capable of ready and unquestioned
demonstration. Thus, facts which are universally
known, and which may be found in encyclopedias,
567
dictionaries or other publications, are judicially
noticed, provided they are of such universal
notoriety and so generally understood that they may
be regarded as forming part of the common
knowledge of every person. (Spouses Omar And
Moshiera Latip v. Chua, G.R. No. 177809, 2009)
2. The matter must be capable of
unquestionable demonstration
Matters which are capable of unquestionable
demonstration pertain to fields of professional and
scientific knowledge. Thus, facts which are
universally known, and which may be found in
encyclopedias, dictionaries or other publications,
are judicially noticed, provided, they are of such
universal notoriety and so generally understood that
they may be regarded as forming part of the
common knowledge of every person. (Expertravel &
Tours, Inc. v. Court of Appeals, G.R. No. 152392,
2005.)
3. The matter is one that is ought to be
known to judges because of their
judicial functions.
An example would be facts which are ascertainable
from the record of court proceedings, e.g. as to
when court notices were received by a party.
This only applies to the records and events in the
same case pending before the court. Courts are not
authorized to take judicial notice of the contents of
the records of other cases, even when such cases
have been tried or are pending in the same court
and pending before the same judge. (People of the
Philippines, G.R. No. 108028, 1996)
The taking of judicial notice is a matter of
expediency and convenience for it fulfills the
purpose that the evidence is intended to achieve,
and in this sense, it is equivalent to proof.
Generally, courts are not authorized to “take judicial
notice of the contents of the records of other cases
even when said cases have been tried or are
pending in the same court or before the same
judge.” They may, however, take judicial notice of a
decision or the facts prevailing in another case
sitting in the same court if: (1) the parties present
them in evidence, absent any opposition from the
other party; or (2) the court, in its discretion,
resolves to do so. In either case, the courts must
observe the clear boundary provided by Section 3,
Rule 129 of the Rules of Court. (Land Bank of the
Philippines v. Yatco Agricultural Enterprises, G.R.
No. 172551, 2014.)
When Hearing is NECESSARY
Purpose - not for the presentation of evidence but
to afford the parties reasonable opportunity to
present information relevant to the propriety of
taking such judicial notice or to the tenor of the
matter to be noticed.
Stages Where the Court May Take Judicial
Notice of a Fact
1. During trial;
2. After trial and before judgment;
3. Appeal
Distinction Between Judicial Notice Taken
During Trial and That Taken After Trial but
Before Judgment or on Appeal:
1. During the trial - the Court, motu proprio or
upon request, may announce its intention to take
judicial notice of any matter and may hear the
parties thereon.
2. After trial but before judgment or on appeal -
the Court, motu proprio or upon request, may take
judicial notice of any matter and allow the parties to
be heard thereon if such matter is decisive of a
material issue in the case.
Distinction between Mandatory Judicial Notice
and Discretionary Judicial Notice
MANDATORY DISCRETIONARY
JUDICIAL NOTICE JUDICIAL NOTICE
568
 f) Depositions
g) Written Interrogatories

Court is compelled to Judicial admissions may be made by either a party

Court not compelled
take judicial notice or his counsel.

When a defendant is declared in default for having

failed to answer the complaint, such a failure does
not amount to an admission of the facts alleged in
the complaint.

At the court’s own To be considered a judicial admission, the

By own initiative of the admission must be made in the same case;
initiative or on request
court otherwise, it is an extrajudicial admission.
of any of the parties

Extra-Judicial Admissions – are those made out

of court, or in a judicial proceeding other than the
one under consideration.

Distinction between Judicial Admission and

No hearing Hearing required Extra-Judicial Admission

3. JUDICIAL ADMISSIONS JUDICIAL EXTRA-JUDICIAL

ADMISSIONS ADMISSION (Rule
Admissions, verbal or written, made by a party in (Rule 129, Sec. 4) 130, Sec. 26)
the course of the proceedings in the same case.
(Rule 129, Sec. 4)

Elements of Judicial Admissions (PPP)

1. Must be made by a party to a case; and
2. Must be made in the course of the proceedings
in the same case. Admission must be
3. No particular form is required, thus a judicial made in the course of Out-of-court-
admission may be verbal or written. the proceeding in the declarations
same case
Forms of Judicial Admission
1. May be oral

Examples:
a) Verbal waiver of proof made in open court
b) A withdrawal of a contention or a disclosure
made before the court Conclusive upon the
Rebuttable
c) Admission made by a witness in the course of admitter
his testimony or deposition

2. May be written

Examples:
a) Pleading
b) Bill of Particulars Does not require proof Requires proof that the
c) Stipulation of Facts
d) Request for Admission
e) Affidavit used in the case

569

admission was made
a. EFFECT OF JUDICIAL ADMISSIONS
An admission, verbal or written, made by the party
in the course of the proceedings in the same case,
does not require proof. (Rule 128, Sec. 4)
Considering that an admission does not require
proof, the admission of the petitioners would
actually be sufficient to prove the partition even
without the documents presented by the respondent
spouses. If anything, the additional evidence they
presented only served to corroborate the petitioners'
admission. (Theresita, et al., all surnamed
Dimaguila v. Jose and Sonia Monteiro, G.R. No.
201011, 2014)
b. HOW JUDICIAL ADMISSIONS MAY BE
CONTRADICTED
General Rule: A judicial admission is conclusive
upon the party making it and does not require proof
Exceptions: Judicial admissions may be
contradicted ONLY by showing that:
1. The admission was made through
PALPABLE MISTAKE
2. NO ADMISSION was made.
When Pleading Superseded or Amended
Pleadings that are superseded or amended
“disappear” from the record and any admissions
made in such pleadings cease to be judicial
admissions. In order that any statement contained
therein may be considered as evidence, a party
should formally offer the superseded or amended
pleading in evidence.
Remedies of a Party Who Gave a Judicial
Admission
a) Motion to Withdraw: for written judicial
admissions, by filing a motion to withdraw the
pleadings, motion or other written instrument
containing such admission; or by moving that
such admission be deemed withdrawn or
disregarded due to palpable mistake.
b) Motion for Exclusion: for oral judicial
admissions, counsel in open court may move
for the exclusion of such admission.
Other Judicial Admissions
Admissions in Drafted Documents
An admission made in a document drafted for
purposes of filing as a pleading but never filed, is
not a judicial admission. If signed by a party, it is
deemed an extrajudicial admission. If signed by the
attorney, it is not deemed as an admission by the
party. An attorney only has the authority to make
statements on behalf of his clients in open court or
in a pleading actually filed.
Admissions in the Pre-Trial of Civil Cases
In civil cases, pre-trial is mandatory. Therefore,
admissions in pre-trial, as well as those made
during the depositions, interrogatories or requests
for admission are all deemed judicial admissions
because they are made in the course of the
proceedings of the case.
Hypothetical Admissions
Not all allegations or admissions in civil cases may
be considered as judicial admissions because the
Rules on Civil Procedure allow a litigant to make
hypothetical admissions in his pleading.
Examples:
1. When a defendant sets up affirmative defenses
in his answer (Section 6, Rule 6)
2. When defendant files a motion to dismiss
based on lack of jurisdiction.
Admissions in the Pre-Trial of Criminal Cases
An admission made by the accused in the pre-trial
of a criminal case is not yet admissible against him.
To be admissible, it must be reduced in writing and
signed by both the accused and the counsel.
Admissions in Amended Pleadings
When a pleading is amended, the amended
pleading supersedes the pleading that it amends
and the admissions in the superseded pleading may
be received in evidence against the pleader as
extrajudicial admissions which must be proven.
Having been amended, the original complaint loses
its character as a judicial admission which would
require no proof. It is now an extrajudicial
570
admission which requires proof (Torres v. Court of
Appeals, G.R. No. L-37420, July 31, 1984)
Admissions in Dismissed Pleadings
Admissions made in pleadings that have been
dismissed are merely extrajudicial admissions.
Admissions by Counsel
Admissions by a counsel are generally conclusive.
However, in cases where reckless or gross
negligence of counsel deprives the client of due
process of law, or when its application will result in
outright deprivation of the client’s liberty or property
or when the interests of justice so require, relief is
accorded the client who suffered by reason of the
lawyer’s gross or palpable mistake or negligence.
4. JUDICIAL NOTICE OF FOREIGN
LAWS, LAW ON NATIONS AND
MUNICIPAL ORDINANCE
Rule on Foreign Laws
General Rule: Courts cannot take judicial notice of
foreign laws. Foreign laws have to be proved like
any other fact.
Exceptions:
1. When the said laws are already within the actual
knowledge of the court, such as when they are well
and generally known or they have been actually
ruled upon in other cases before it and none of the
parties concerned do not claim otherwise. (PCIB v.
Escolin, G.R. Nos. L-27860 and L-27896, 1974)
2. Common Law (Herrera, Remedial Law Vol V, 84)
3. A published treatise, periodical or pamphlet on a
subject of history, law, science, or art is admissible
as tending to prove the truth of a matter stated
therein if the court takes judicial notice, or a
witness expert in the subject testifies, that the
writer of the statement in the treatise, periodical
or pamphlet is recognized in his profession or
calling as expert in the subject. (Rule 130, Sec.
46)
Stipulation by the parties - the parties in a given
case do not have any controversy or are more or
less in agreement, the Court may take it for granted
for the purposes of the particular case before it that
the said laws are as such virtual agreement
indicates, without the need of requiring the
presentation of what otherwise would be the
competent evidence on the point. (PCIB v. Escolin,
G.R. Nos. L-27860 and L-27896, 1974)
How foreign laws are proved
A written foreign law maybe proved by an official
publication or by a duly attested and authenticated
copy thereof.
When the foreign law is part of a published treatise,
periodical or pamphlet and the writer is recognized
in his profession or calling as an expert in the
subject, the court may take judicial notice of the
treatise containing the foreign law. (Rule 130, Sec.
6)
Doctrine Of Processual Presumption – If the
foreign law is not properly proved, the foreign law is
presumed to be the same as the law in the
Philippines.
Rule On Municipal Ordinances
1. Municipal Trial Courts are required to take
judicial notice of the ordinances of the
municipality or city where they sit.
2. Regional Trial Courts must take judicial notice
only
a. When required to do so by statute; and
b. In a case on appeal before them and
where the inferior court took judicial notice
of an ordinance involved in said case.
3. The Court of Appeals may take judicial notice
of municipal ordinances because nothing in the
Rules prohibits them from doing so if it is
capable of unquestionable demonstration.
571
Trial courts are required to take judicial notice of the
decisions of the appellate courts but not of the END OF TOPIC
decisions of coordinate trial courts.

Rule on Court Records

1. Court’s Own Acts and Records

A court may take judicial notice of its OWN acts and
records in the SAME case.

2. Records of Other Cases

General Rule - Courts are not authorized to take
judicial notice of the contents of the records of other
C. OBJECT (REAL) EVIDENCE
cases, even when such have been tried or are
pending in the same court and with the same judge.
Exceptions:

1. A party clearly makes reference to the

records of another case and there is no
objection by the other party;
2. Judicial notice is at the request or with the
consent of the parties; or 1. DEMONSTRATIVE EVIDENCE
3. The original or part of the records of the 2. VIEW OF AN OBJECT SCENE
case are actually withdrawn from the
archives and are admitted as part of the 3. CHAIN OF CUSTODY, IN RELATION
record of the case pending. (Tabuena v. TO SECTION 21 OF THE
CA, G.R. No. 85423, 1991) COMPREHENSIVE DANGEROUS
DRUGS ACT OF 2002
4. RULE ON DNA EVIDENCE (A.M. NO.
06-11-5-SC)
Judicial Notice of Other Matters a. Meaning of DNA
b. Application for DNA testing order
c. Post-conviction DNA testing; Remedy
d. Assessment of probative value of DNA
evidence; Admissibility
1. A court can take judicial notice of banking e. Rules on evaluation of reliability of the
practices. DNA testing methodology
2. A court cannot take judicial notice of an
administrative regulation or of a statute
that is not yet effective.
3. A court cannot take judicial notice of the
age of the victim without hearing and
presentation of proof.
4. A court has taken judicial notice of the
Filipina’s inbred modesty and shyness and
her antipathy in publicly airing acts which 1. NATURE OF OBJECT EVIDENCE
blemish her honor and virtue.

Objects as evidence are those addressed to the

senses of the court. When an object is relevant to

572
the fact in issue, it may be exhibited to, examined or
viewed by the court. (Rule 130, Sec. 1)
It refers to the real thing itself and it consists of
tangible things, not merely perceptions of the
witness and a recollection of those perceptions.
Limitations on the Use of Object Evidence
The court MAY refuse the introduction of object
evidence and rely on testimonial evidence alone if:
1. The exhibition of such object is contrary to
morals or decency;
2. To require its being viewed in court or in an
ocular inspection would result in delays,
inconvenience, unnecessary expenses out of
proportion to the evidentiary value of such
object;
3. Such object evidence would be confusing or
misleading, as when the purpose is to prove
the former condition of the object and there is
no preliminary showing that there has been no
substantial change in said condition; or
4. The testimonial or documentary evidence
already presented clearly portrays the object in
question as to render a view thereof
unnecessary.
Even if the object is repulsive or indecent, if a view
of the same is necessary in the interest of justice,
such evidence may still be exhibited but the court
may exclude the public from such view.
Reason for Admissibility
The evidence of one’s own senses furnishes the
strongest probability of the existence of any
sensible fact.
2. REQUISITES FOR ADMISSIBILITY
1. The object must be relevant to the fact in issue;
2. The object must be authenticated before it is
admitted;
3. The authentication must be made by a
competent witness;
4. The object must be formally offered in
evidence. (Riano, pp.186-187)
AUTHENTICATION
To be admissible in evidence, the object sought to
be offered must be shown to have been the very
thing that is the subject matter of the lawsuit or the
very one involved to prove an issue in the case.
Authentication by a competent witness is essential
to the admissibility of the object evidence. After
authentication, the object needs to be formally
offered in evidence.
The right against self-incrimination cannot be
invoked against object evidence. Thus, an accused
may be compelled to submit himself to bodily
inspection and whatever object is retrieved on his
person would be admissible even though it would
incriminate such accused. Also, on cross-
examination, an accused may be compelled to write
so as to be able to use his handwriting as object
evidence to compare with the one in question.
Authentication of Photographs
The correctness of a photograph as a faithful
representation of the object portrayed can be
proved prima facie, either by the testimony of the
person who made it or by other competent
witnesses, after which the court can admit it subject
to impeachment as to its accuracy. (Sison v.
People, G.R. Nos. 108280-83, 1995)
An object evidence, when offered in accordance
with the requisites for its admissibility, becomes
evidence of the highest order and speaks more
eloquently than witnesses put together. The
presence of the victim’s ravished body in a deep
ravine with handcuffs on her wrist is a physical
evidence that bolsters the testimony of the witness.
(People v. Larrahaga, G.R. Nos. 138874-75, 2005)
3. CATEGORIES OF OBJECT
EVIDENCE
1. UNIQUE – objects that have readily identifiable
marks
2. OBJECTS MADE UNIQUE – objects that are
made readily identifiable
3. NON-UNIQUE OBJECTS – these are objects
with no identifying marks and cannot be
marked (e.g., blood, oil, drugs in powder form,
fiber)
573
A proponent offering evidence which falls under the
third category must establish a chain of custody.
CHAIN OF CUSTODY
Persons who actually handled or had custody of the
object must show through testimony that there is no
possibility that the evidence was tampered with and
that the integrity of the evidence was preserved
throughout the course of gathering, collecting and
storing the evidence. This is done to ensure that
the evidence presented in court is the same
evidence seized from the defendant or recovered
from the crime scene or elsewhere.
Each custodian of the evidence is not required to
testify as long as sufficient testimony is given by
some of the persons who have come into contact
with the evidence to negate the possibility of
tampering.
4. DEMONSTRATIVE EVIDENCE
Demonstrative evidence is not the actual thing but it
is referred to as “demonstrative” because it
represents or demonstrates the real thing. It is not
strictly “real” evidence because it is not the very
thing involved in the case. (Riano, pp.189-190)
Some courts insist on requiring the photographer to
testify but this view has been eroded by the
tendency of modern courts to admit as a witness
one who has familiarity with the scene portrayed.
(Sison v. People, G.R. No. 108280-83, 1995)
Trial court ruled that the photographs are
inadmissible. The Court held that the photographs
are inadmissible because the map or photograph, to
be admissible, must first be made a part of some
qualified person's testimony. Someone must stand
forth as its testimonial sponsor; in other words, it
must be verified. (Adamczuk v. Halloway, 13 A.2d
2, 1940)
On appeal, Tatum questioned the film’s admission
into evidence. The Court held that for a photograph
to be admissible in evidence, the authentication
required by courts is that some witness (not
necessarily the photographer) be able to give some
indication as to when, where, and under what
circumstances the photograph was taken, and that
the photograph accurately portray the subject or
subjects illustrated. (State v. Tatum, 360 P.2d 754,
1961)
5. VIEW OF AN OBJECT OR SCENE
When an object is relevant to the fact in issue, it
may be exhibited to, examined or viewed by the
court. (Rule 130, Sec. 1)
A place or scene can fall under the classification of
object evidence. The court has to go to the object if
the object cannot be produced in court due to its
immovability or the difficulty or inconvenience in
removing it and producing it in court.
Granted Only If Of Substantial Aid
As a general rule, a view or inspection should be
granted only where it is reasonably certain that it
will be of substantial aid to the court in reaching a
correct verdict.
When Changes to the Object or Scene Have
Taken Place
A court may refuse to make the inspection where
changes have taken place since the time to which
the action relates or where it is not shown that the
conditions are the same.
However, View May Be Granted If:
1. The change is not material.
2. The character and extent of the change are
properly brought out in evidence.
Notice to parties
The inspection or view is part of the trial and thus
should be made in the presence of the parties or at
least with previous notice to them of the time and
place set for the view.
6. CHAIN OF CUSTODY, IN RELATION
TO SECTION 21 OF THE
COMPREHENSIVE DANGEROUS
DRUGS ACT OF 2002
CHAIN OF CUSTODY means the duly recorded
authorized movements and custody of seized drugs
or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of each
stage, from the time of seizure/confiscation to
receipt in the forensic laboratory to safekeeping to
presentation in court for destruction. Such record of
movements and custody of seized item shall include
the identity and signature of the person who held
574
temporary custody of the seized item, the date and
time when such transfer of custody were made in
the course of safekeeping and used in court as
evidence, and the final disposition. (DDB Regulation
No. 1, series of 2002, Sec. 1(b))
Safeguards for the Protection of the Identity and
Integrity of Dangerous Drugs Seized:
The PDEA shall take charge and have custody of all
dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia
and/or laboratory equipment so confiscated, seized
and/or surrendered, for proper disposition in the
following manner:
1. The apprehending team having initial custody
and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and
photograph the same in the presence of the
accused or the person/s from whom such items
were confiscated and/or seized, or his/her
representative or counsel, a representative from the
media and the Department of Justice (DOJ), and
any elected public official who shall be required to
sign the copies of the inventory and be given a copy
thereof;
2. Within twenty-four (24) hours upon
confiscation/seizure of dangerous drugs, plant
sources of dangerous drugs, controlled precursors
and essential chemicals, as well as
instruments/paraphernalia and/or laboratory
equipment, the same shall be submitted to the
PDEA Forensic Laboratory for a qualitative and
quantitative examination;
3. A certification of the forensic laboratory
examination results, which shall be done under oath
by the forensic laboratory examiner, shall be issued
within twenty-four (24) hours after the receipt of the
subject item/s: Provided: That when the volume of
the dangerous drugs, plant sources of dangerous
drugs, and controlled precursors and essential
chemicals does not allow the completion of testing
within the time frame, a partial laboratory
examination report shall be provisionally issued
stating therein the quantities of dangerous drugs
still to be examined by the forensic laboratory:
Provided, however, That a final certification shall be
issued on the completed forensic laboratory
examination on the same within the next twenty-four
(24) hours;
4. After the filing of the criminal case, the Court
shall, within seventy-two (72) hours, conduct an
ocular inspection of the confiscated, seized and/or
surrendered dangerous drugs, plant sources of
dangerous drugs, and controlled precursors and
essential chemicals, including the
instruments/paraphernalia and/or laboratory
equipment, and through the PDEA shall within
twenty-four (24) hours thereafter proceed with the
destruction or burning of the same, in the presence
of the accused or the person/s from whom such
items were confiscated and/or seized, or his/her
representative or counsel, a representative from the
media and the DOJ, civil society groups and any
elected public official. The Board shall draw up the
guidelines on the manner of proper disposition and
destruction of such item/s which shall be borne by
the offender: Provided, That those item/s of lawful
commerce, as determined by the Board, shall be
donated, used or recycled for legitimate purposes:
Provided, further, That a representative sample,
duly weighed and recorded is retained;
5. The Board shall then issue a sworn certification
as to the fact of destruction or burning of the subject
item/s which, together with the representative
sample/s in the custody of the PDEA, shall be
submitted to the court having jurisdiction over the
case. In all instances, the representative sample/s
shall be kept to a minimum quantity as determined
by the Board;
6. The alleged offender or his/her representative or
counsel shall be allowed to personally observe all of
the above proceedings and his/her presence shall
not constitute an admission of guilt. In case the said
offender or accused refuses or fails to appoint a
representative after due notice in writing to the
accused or his/her counsel within seventy-two (72)
hours before the actual burning or destruction of the
evidence in question, the Secretary of Justice shall
appoint a member of the public attorney’s office to
represent the former; and
7. After the promulgation and judgment in the
criminal case wherein the representative sample/s
was presented as evidence in court, the trial
prosecutor shall inform the Board of the final
termination of the case and, in turn, shall request
the court for leave to turn over the said
representative sample/s to the PDEA for proper
disposition and destruction within twenty-four (24)
hours from receipt of the same. (Dangerous Drug
Act of 2002, Sec. 21)
The existence of the drug is the very corpus delicti
of the crime of illegal possession of dangerous
drugs and, thus, a condition sine qua non for
575
conviction. In order to establish the existence of the
drug, its chain of custody must be sufficiently
established. The chain of custody requirement is
essential to ensure that doubts regarding the
identity of the evidence are removed through the
monitoring and tracking of the movements of the
seized drugs from the accused, to the police, to the
forensic chemist, and finally to the court. (People v.
Martinez, G.R. No. 191366, 1996)
It would include testimony about every link in the
chain, from the moment the item was picked up to
the time it is offered into evidence, in such a way
that every person who touched the exhibit would
describe how and from whom it was received,
where it was and what happened to it while in the
witness' possession, the condition in which it was
received and the condition in which it was delivered
to the next link in the chain. (Zafra v. People, G.R.
No. 190749, 2012)
Non-compliance with the procedural requirements
under RA 9165 and its IRR relative to the custody,
photographing, and drug-testing of the
apprehended persons, is not a serious flaw that can
render void the seizures and custody of drugs in a
buy-bust operation. What is essential is “the
preservation of the integrity and the evidentiary
value of the seized items, as the same would be
utilized in the determination of the guilt or innocence
of the accused. (People vs. Cardenas, G.R. No.
190342, 2012)
7. RULE ON DNA EVIDENCE (AM NO.
06-11-5-SC)
a. MEANING OF DNA
Deoxyribonucleic Acid (DNA), which is the chain of
molecules found in every nucleated cell of the body.
The totality of an individual’s DNA is unique for the
individual, except identical twins. (Rule on DNA
Evidence, Sec. 3 (b))
DNA, or deoxyribonucleic acid, is a molecule that
encodes the genetic information in all living
organisms. Most importantly, because of
polymorphisms in human genetic structure, no two
individuals have the same DNA, with the notable
exception of identical twins. (Agustin v. Court of
Appeals, G.R. No. 162571, 2005)
DNA is an organic substance found in a person’s
cells which contains his or her genetic code.
Except for identical twins, each person’s DNA
profile is distinct and unique. When a crime is
committed, material is collected from the scene of
the crime or from the victim’s body for the suspect’s
DNA. This is the evidence sample. The evidence
sample is then matched with the reference sample
taken from the suspect and the victim. The purpose
of DNA testing is to ascertain whether an
association exists between the evidence sample
and the reference sample. The samples collected
are subjected to various chemical processes to
establish their profile. (People v. Vallejo, G.R. No.
144656, 2002)
The death of Rogelio does not ipso facto negate the
application of DNA testing for as long as there exist
appropriate biological samples of his DNA. New
Rules on DNA Evidence allows the conduct of DNA
testing by using biological samples--organic
material originating from the person's body, ie.,
blood, saliva, other body fluids, tissues, hair, bones,
even inorganic materials- that is susceptible to DNA
testing. (Estate of Ong v. Diaz, G.R. 171713, 2007)
b. APPLICATION FOR DNA TESTING ORDER
The appropriate court may, at any time, either motu
proprio or on application of any person who has a
legal interest in the matter in litigation, order a DNA
testing. Such order shall issue after due hearing
and notice to the parties upon a showing of the
following:
1. A biological sample exists that is relevant
to the case;
2. The biological sample was:
a. Not previously subjected to the type of
DNA testing now requested; or
b. Previously subjected to DNA testing, but
the results may require confirmation for
good reasons;
3. The DNA testing uses a scientifically valid
technique;
4. The DNA testing has the scientific potential
to produce new information that is relevant to
the proper resolution of the case; and
5. The existence of other factors, if any,
which the court may consider as potentially
576
 affecting the accuracy or integrity of the DNA
testing.
This Rule shall not preclude a DNA testing, without
need of a prior court order, at the behest of any
party, including law enforcement agencies, before a
suit or proceeding, is commenced. (Rule on DNA
Evidence, Sec. 4)
In some states, to warrant the issuance of the DNA
testing order, there must be a show cause hearing
wherein the applicant must first present sufficient
evidence to establish a prima facie case or a
reasonable possibility of paternity or “good
cause” for the holding of the test. In these states, a
court order for blood testing is considered a
“search,” which, under their Constitutions (as in
ours), must be preceded by a finding of probable
cause in order to be valid. Hence, the requirement
of a prima facie case, or reasonable possibility, was
imposed in civil actions as a counterpart of a finding
of probable cause. The same condition precedent
should be applied in our jurisdiction to protect
the putative father from mere harassment suits.
Thus, during the hearing on the motion for DNA
testing, the petitioner must present prima facie
evidence or establish a reasonable possibility of
paternity. (Lucas v. Lucas, G.R. No. 190710, 2011)
Notwithstanding these, it should be stressed that
the issuance of a DNA testing order remains
discretionary upon the court. The court may, for
example, consider whether there is absolute
necessity for the DNA testing. If there is already
preponderance of evidence to establish paternity
and the DNA test result would only be
corroborative, the court may, in its discretion,
disallow a DNA testing. (Lucas v. Lucas, G.R. No.
190710, 2011)
c. POST-CONVICTION DNA TESTING;
REMEDY
Post-conviction DNA testing may be available,
without need of prior court order, to the prosecution
or any person convicted by final and executory
judgment provided that:
1. A biological sample exists,
2. Such sample is relevant to the case, and
3.The testing would probably result in the reversal
or modification of the judgment of conviction (Rule
on DNA Evidence, Sec. 6).
d. ASSESSMENT OF PROBATIVE VALUE OF
DNA EVIDENCE; ADMISSIBILITY
In assessing the probative value of the DNA
evidence presented, the court shall consider the
following:
1. The chain of custody, including how the
biological samples were collected, how they
were handled, and the possibility of
contamination of the samples;
2. The DNA testing methodology, including
the procedure followed in analyzing the
samples, the advantages and disadvantages of
the procedure, and compliance with the
scientifically valid standards in conducting the
tests;
3. The forensic DNA laboratory, including
accreditation by any reputable standards-
setting institution and the qualification of the
analyst who conducted the tests. If the
laboratory is not accredited, the relevant
experience of the laboratory in forensic of the
laboratory in forensic casework and credibility
shall be properly established; and
4. The reliability of the testing result, as
hereinafter provided.
The provisions of the Rules of Court concerning the
appreciation of evidence shall apply suppletorily
(Rule on DNA Evidence, Sec. 7).
In assessing the probative value of DNA evidence,
therefore, courts should consider, among others
things, the following data: how the samples were
collected, how they were handled, the possibility of
contamination of the samples, the procedure
followed in analyzing the samples, whether the
proper standards and procedures were followed in
conducting the tests, and the qualification of the
analyst who conducted the tests. (People v. Vallejo,
G.R. No. 144656, 2002)
The purpose of DNA testing is to ascertain whether
an association exists between the evidence sample
and the reference sample.
The test may yield three possible results:
1. The samples are different and therefore must
have originated from different sources
(exclusion). This conclusion is absolute and
requires no further analysis or discussion;
577
2. It is not possible to be sure, based on the
results of the test, whether the samples have
similar DNA types (inconclusive). This might
occur for a variety of reasons including
degradation, contamination, or failure of some
aspect of the protocol. Various parts of the
1. MEANING OF DOCUMENTARY
analysis might then be repeated with the same EVIDENCE
or a different sample, to obtain a more 2. REQUISITES OF ADMISSIBILITY
conclusive result; or 3. BEST EVIDENCE RULE
3. The samples are similar, and could have
a. Meaning of the rule
originated from the same source (inclusion). In b. When applicable
such a case, the samples are found to be
c. Meaning of the original
similar, the analyst proceeds to determine the d. Requisites for introduction of
statistical significance of the Similarity. (People
secondary evidence
v. Vallejo, G.R. No. 144656, 2002)
4. RULES ON ELECTRONIC
e. RULES ON EVALUATION OF RELIABILITY EVIDENCE (A.M. NO. 01-7-01-SC)
OF THE DNA TESTING METHODOLOGY a. Scope; Coverage; Meaning of electronic
evidence; Electronic data message
In evaluating whether the DNA testing methodology b. Probative value of electronic
is available, the court shall consider the following: documents or evidentiary weight;
Method of proof
c. Authentication of electronic documents
and electronic signatures
1. The falsifiability of the principles or methods d. Electronic documents vis-à-vis hearsay
used, that is, whether the theory or technique rule
can be and has been tested; e. Audio, photographic, video, and
2. The subjection to peer review and publication ephemeral evidence
of the principles or methods; 5. PAROL EVIDENCE RULE
3. The general acceptance of the principles or a. Application
methods by the relevant scientific community; b. When parol evidence can be introduced
4. The existence and maintenance of standards c. Distinctions between the best evidence
and controls to ensure the correctness of data rule
generated;
5. The existence of an appropriate reference 6. AUTHENTICATION; PROOF OF
population database; and DOCUMENTS
6. The general degree of confidence attributed to a. Meaning of authentication
mathematical calculations used in comparing b. Public documents; Private documents
DNA profiles and the significance and limitation c. When a private writing requires
of statistical calculations used in comparing authentication; Proof of private writing
DNA profiles. (Rule on DNA Evidence, Sec. 8) d. When evidence of authenticity of a
private writing is not required; Ancient
documents
e. How to prove genuineness of a
handwriting
END OF TOPIC f. Public documents as evidence; Proof of
official record
g. Attestation of a copy
h. Public record of a public document
i. Proof of lack of record
j. How a judicial record is impeached
k. Proof of notarial documents
l. How to explain alterations in a
document
m. Documentary evidence in an unofficial
language
D. DOCUMENTARY EVIDENCE

578

1. MEANING OF DOCUMENTARY
EVIDENCE
DOCUMENTARY EVIDENCE – documents as
evidence consists of writings or any material
containing letters, words, numbers, figures, symbols
or other modes of written expression offered as
proof of their contents.
Documentary evidence is evidence supplied by
written instruments, or derived from conventional
symbols, such as letters, by which ideas are
represented on material substances; documents
produced for the inspection of the court or judge.
For written material to qualify as documentary
evidence, the purpose of offering the written
material should be to prove its contents.
If offered for some other purpose (e.g., existence or
condition), the writings would not be deemed as
documentary evidence but as object evidence. (The
Best Evidence Rule and the Parole Evidence Rule
do not apply to object evidence, only to
documentary evidence).
2. REQUISITES FOR ADMISSIBILITY
To be admissible, documentary evidence, like any
other evidence, must be relevant and competent. It
is also subject to general exclusionary rules such as
the rule on hearsay, best evidence rule, and parol
evidence rule. (Riano, p. 229)
3. BEST EVIDENCE RULE
a. MEANING OF THE RULE
The best evidence rule applies only when the
subject of the inquiry is the contents of a document.
The rule requires that the original of the writing must
be produced. It is also known as the “original
document rule” or the “primary evidence” rule.
The best evidence rule operates as a rule of
exclusion, that is, secondary evidence cannot be
introduced as the original writing itself must be
produced in court, subject to exceptions.
Purpose: The prevention of fraud because it is
easy for a person to fabricate the alleged contents
of a document. Also, the rule ensures accuracy. A
person, even if acting in good faith, may most likely
not be able to recall all the details of a document,
especially a lengthy one.
General Rule: The original document must be
produced.
Exceptions:
1. When the original has been lost or destroyed,
or cannot be produced in court, without bad
faith on the part of the offeror;
2. When the original is in the custody or under the
control of the party against whom the evidence
is offered, and the latter fails to produce it after
reasonable notice;
3. When the original consists of numerous
accounts or other documents which cannot be
examined in court without great loss of time
and the fact sought to be established from
them is only the general result of the whole;
and
4. When the original is a public record in the
custody of a public officer or is recorded in a
public office.
NOTE:
The non-production of the original document by an
accused unless justified under the exceptions gives
rise to the presumption of suppression of evidence
adverse to him.
b. WHEN APPLICABLE
The best evidence rule cannot be invoked unless
the contents of the writing are the subject of the
judicial inquiry.
If the subject of the inquiry is not the contents of a
document, then the Best Evidence Rule does not
apply. For example, Accused is charged with
perjury for lying under oath in a Senate hearing.
The prosecution need not present the transcript of
the testimony given at the hearing. The prosecution
can present a witness who heard what Accused
testified to in the Senate because, here, the subject
of the inquiry is not the contents of the transcript but
whether Accused uttered a falsehood while under
oath at the hearing. In this instance, while the
transcript is the “better” or “best” evidence in the
sense that it is presumably more reliable, the
testimony of the witness who heard utterance of the
579

Accused at the Senate is nonetheless admissible
even without accounting for the loss of the
transcript.
The best evidence rule applies only when the
contents of the documents are the subject of
inquiry. Since in this case the prosecution
presented the marked money solely for the purpose
of establishing its existence and not its contents,
other substitutionary evidence like a Xerox copy is
admissible without the need of accounting for the
original. (People vs. Tandoy, G.R. No. 80505, 1990)
Only a photocopy of the Employee Clearance was
presented in evidence. The Court held that the
photocopy is admissible as evidence since an
exception to the best evidence rule is when the
document sought to be presented is in the
possession of the person against whom it is to be
offered and such party fails to present it even after
reasonable notice. (Pacasum vs. People, G.R. No.
180314, 2009)
The general rules regarding the admissibility of
evidence are applicable to cases of libel or slander.
When such libel or slander was committed through
a published article, copies of such article constitute
the best evidence. (Fiscal of Pampanga vs. Reyes,
55 Phil. 522, 1910)
Company is suing for damages and presented as
evidence are computations made by private
accountants. The Court held that the amount
claimed does not comply with the best evidence
rule. Section 2(e) Rule130 is inapplicable because
(1) the voluminous character of the records, on
which the accountant's reports were based, was not
established, and (2) a requisite for the application of
the rule is that the records and accounts should be
made accessible to the adverse party so that the
latter may test it on cross-examination. (Compania
Maritima vs. Allied Free Workers, G.R. No. L-
289999, 1977)
c. MEANING OF ORIGINAL
Original of Documents
1. The original of a document is one the contents
of which are the subject of inquiry.
2. When a document is in two or more copies,
executed at or about the same time, with
identical contents, all such copies are equally
regarded as originals.
3. When an entry is repeated in the regular
course of business, one being copied from
another at or near the time of the transaction,
all entries are likewise equally regarded as
originals
NOTE:
A carbon copy of a letter is a duplicate original and
admissible. Photographic copies of writings or
photocopies are not duplicate originals as they are
produced at a later time. Such are considered
secondary evidence.
When carbon sheets are inserted between two or
more sheets of writing paper so that the writing of a
contract upon the outside sheet, including the
signature of the party to be charged thereby,
produces facsimile upon the sheets beneath, such
signature being thus reproduced by the same stroke
of the pen which made the surface or exposed
impression, all of the sheets so written on are
regarded as duplicate originals and either of them
may be introduced in evidence as such without
accounting for the nonproduction of the others.
(People vs. Tan, G.R. No. L-14257, 1959)
The best evidence rule applied in copyright
infringement case, where plaintiff possessed no
originals of any work he contended was copied,
accordingly before subsequent reconstructions
were admissible plaintiff had to establish that the
originals were lost or destroyed through no fault of
his own. Thus, copyrighted drawings offered as
evidence are considered as documentary evidence
and when subject of inquiry is the content of the
creation the original must be presented. (Seiler v.
Lucas Film, Ltd., 797 F.2d 1504, 1986)
The evidence offered by NAPOCOR were
photocopies. The Court held that the photocopies
were not equivalent to the original documents
based on the Rules on Electronic Evidence. The
information contained in the photocopies submitted
by NAPOCOR will reveal that not all of the contents
therein, such as the signatures of the persons who
purportedly signed the documents, may be
recorded or produced electronically. (National
Power Corporation vs. Codilla, G.R. No. 170491,
2007)
The Court held that the print-out and/or photocopies
of facsimile transmissions are not electronic
evidence. Thus, it is consequential that the same
may not be considered as the functional equivalent
of their original as decreed in the law. (MCC
Industrial Sales Corporation vs. Ssangyong
Corporation, G.R. No. 170633, 2007)
Considering that the annotation of the disputed
Deed of Sale in a tax declaration is not sufficient
proof of the transfer of property and inasmuch as
the subject of inquiry is the Deed of Sale, it was
580
incumbent on the petitioners to adduce in evidence
the original. In the absence of the said document,
the exhortations of petitioners regarding the
existence of said deed of sale must fail. (Ebreo v.
Ebreo, G.R. No. 160065, 2006)
d. REQUISITES FOR INTRODUCTION OF
SECONDARY EVIDENCE
SEC. 5. When original document is unavailable
When Secondary Evidence May be Admitted:
1. Proof of the existence and the due execution of
the original;
2. Loss, destruction or unavailability of all such
originals;
3. Reasonable diligence and good faith in the
search for or attempt to produce the original.
Before secondary evidence can be presented, it is
imperative that all the originals, duplicates or
counterparts must be accounted for. The loss,
destruction, or inaccessibility of all the originals
must be shown in order to admit secondary
evidence. (De Vera v. Aguilar, G.R. No. 83377,
1993)
When the original is outside the jurisdiction of the
court, as when it is in a foreign country, secondary
evidence is admissible.
Due Execution May be Proven Through the
Testimony of Either:
1. The person who executed it;
2. The person before whom its execution was
acknowledged; or
3. Any person who was present and saw it
executed and delivered or who thereafter saw it
and recognized the signatures, or one to whom
the parties thereto had previously confessed
the execution thereof.
Rules on Loss
It is not necessary to prove the loss beyond all
possibility of mistake. A reasonable probability of
its loss is sufficient, and this may be shown by a
bona fide and diligent search for it in a place where
it is likely to be found.
Where both parties admit that an instrument has
been lost, it is sufficient to warrant the reception of
secondary evidence.
The fact of loss or destruction must, like any other
fact, be proved by a fair preponderance of
evidence, and this is sufficient.
As long as the originals of a public document in the
possession of the parties have been proven lost, a
copy of the document made before it was lost is
admissible as secondary evidence of its contents,
and the burden of proof is upon the party
questioning its authenticity to show that it is not a
true copy of the original.
The document conveying the land was lost so the
petitioner tried to present oral, secondary evidence.
The Court held that the secondary evidence is
admissible. The loss or destruction of the
instrument, meanwhile, may be proved by any
person aware of the fact, or by anyone who has
made, in the judgment of the court, a sufficient
examination in the place or places where the
document or papers of similar character are usually
kept by the person in whose custody the document
was kept, and has been unable to find it; or who has
made any other investigation sufficient to satisfy the
Court that the document was indeed lost. (Michael
& Co. vs. Enriquez, G.R. No. L-10824, 1915)
SEC. 6. When original document is in adverse
party’s custody or control
Facts Which Must be Shown by the Party
Offering Secondary Evidence:
1. The adverse party’s custody or control of the
original document;
2. That reasonable notice was given to the
adverse party who has the custody or control of
the document;
3. Satisfactory proof of its existence;
4. Failure or refusal by the adverse party to
produce it in court.
If the refusal or failure of the adverse party to
produce the document is justified, it does not give
rise to the presumption of suppression of evidence
or create an unfavorable inference against him. It,
however, authorizes the introduction of secondary
evidence.
It is not necessary for a party seeking to introduce
secondary evidence to show that the original is in
the actual possession of his adversary. It is enough
that the circumstances are such as to indicate that
the writing is in his possession or under his control.
581
Neither is it required that the party entitled to the
custody of the instrument should, on being notified
to produce it, admit having it in his possession.
(Villa Rey Transit v. Ferrer, G.R. No. L-23893,
1968)
Only a photocopy of the Employee Clearance was
presented in evidence. The Court held that the
photocopy is admissible as evidence since an
exception to the best evidence rule is when the
document sought to be presented is in the
possession of the person against whom it is to be
offered and such party fails to present it even after
reasonable notice. (Pacasum vs. People, G.R. No.
180314, 2009)
Rules on Reasonable Notice
No particular form of notice is required, as long as it
fairly apprises the other party as to what papers are
desired. Even an oral demand in open court for
production within a reasonable period will suffice.
Notice must be given to the adverse party, or his
attorney, even if the document is in the actual
possession of a third party.
Where receipt of the original of a letter is
acknowledged on a carbon copy thereof, there is no
need for a notice to the other party to produce the
original of the letter.
Notice is a condition for the subsequent introduction
of secondary evidence by the proponent.
Where the nature of the action is in itself a notice,
as where it is for the recovery or annulment of
documents wrongfully obtained or withheld by the
other party, no notice to produce said document is
required.
Presentation of Secondary Evidence for Lost or
Unavailable Originals, or Originals in adverse
party’s custody MUST be in the following
ORDER:
1. A copy of the document;
2. Recital of its contents in an authentic
document;
3. The recollection or testimony of the witnesses.
The hierarchy of preferred secondary evidence
must be strictly followed.
Rule on Testimony Regarding Original
Document
The fact that a writing is really a true copy of the
original may be shown by the testimony of a person
who has had the opportunity to compare the copy
with the original and found it to be correct.
For the Testimony to be Admissible
1. The original was read by him or read to him by
another person;
2. He reads the copy; and
3. Finds that the latter corresponds with what was
read to him.
It will also be sufficient where the person who made
the original thereafter makes a copy a short time
thereafter by writing down the dictation of another
reading from the original.
It is not expected of a witness to state the contents
of a document with verbal accuracy; it is enough
that the substance of the documents be stated.
Authentic Document
Authentic means that the document should be
genuine. It need not be a public document.
In proving the contents of the original in some
authentic document, it is sufficient if it appears in a
private document which is proved to be authentic.
When the Original consists of numerous
accounts or other documents which cannot be
examined without great loss of time and the fact
sought to be established from them is only the
general result of the whole
There is no need to present the original where the
documents are too voluminous. Secondary
evidence may consist of a summary of the
voluminous documents or records. The voluminous
records must, however, be made accessible to the
adverse party so that the correctness of the
summary may be tested on cross-examination.
(Rule 130, Sec 3(d))
SEC. 7. Evidence admissible when original
document is a public record
Secondary evidence may consist of a Certified True
Copy issued by the public officer in custody thereof.
When the original is outside of the jurisdiction of the
court, as when it is in a foreign country, secondary
evidence still admissible.
SEC. 8. Party who calls for document not bound
to offer it
Production of papers or documents upon the trial,
pursuant to a notice duly served, does not make
582
such papers or documents evidence. It is not until
the party who demanded the production of the
papers examines them and offers them in evidence
that they assume the status of evidentiary matter.
If there is no timely objection to a document on the
ground that it violates the Best Evidence Rule, the
secondary evidence will be admitted.
It is true that the Court relied not upon the original
but only copy of the Angara Diary as published in
the Philippine Daily Inquirer. In doing so, the Court,
did not, however, violate the best evidence rule.
Production of the original may be dispensed with, in
the trial court’s discretion, whenever in the case in
hand the opponent does not bona fide dispute the
contents of the document and no other useful
purpose will be served by requiring production.
(Estrada vs. Desierto, G.R. Nos. 146710-15, 2001)
message or electronic document. (REE, Rule 2,
Sec. 1(h))
Electronic Data Message - information generated,
sent, received or stored by electronic, optical or
similar means. (REE, Rule 2, Sec. 1(g))
Note: For purposes of these Rules, the term
“electronic document” may be used interchangeably
with electronic data message”. (REE, Rule 2, Sec
1(h)
Electronic evidence as functional equivalent of
paper based documents - Whenever a rule of
evidence refers to the term writing, document,
record, instrument, memorandum or any other form
of writing, such term shall be deemed to include an
electronic document as defined in these Rules.
(REE, Rule 3, Sec. 1)

4. RULES ON ELECTRONIC b. PROBATIVE VALUE OF ELECTRONIC

EVIDENCE (A.M. NO. 01-7-01-SC) DOCUMENTS OR EVIDENTIARY WEIGHT;
METHOD OF PROOF
a. SCOPE; COVERAGE; MEANING OF
Admissibility
ELECTRONIC EVIDENCE; ELECTRONIC
An electronic document is admissible in evidence if:
DATA MESSAGE
1. It complies with the rules on admissibility
prescribed by the Rules of Court and related
Scope and Coverage
laws; and
The Rules on Electronic Evidence (REE) shall apply
2. It is authenticated in the manner prescribed by
whenever an electronic document or electronic data
these Rules. (REE, Rule 3, Sec. 2)
message as defined in these rules is offered or
used in evidence. (REE, Rule 1 Sec. 1)
Best Evidence Rule Under the REE
An electronic document shall be regarded as the
These Rules shall apply to all civil actions and
equivalent of an original document under the Best
proceedings, as well as quasi-judicial and
Evidence Rule if it is a printout or output readable
administrative cases. (REE, Rule 1 Sec. 2)
by sight or other means, shown to reflect the data
accurately. (REE, Rule 4, Sec. 1)
Applicability to Criminal Actions
As to the admissibility of the text messages, the
When copies or duplicates of a document shall be
RTC admitted them in conformity with the Court’s
regarded as original:
earlier Resolution applying the Rules on Electronic
1. It is in two or more copies executed at or about
Evidence to criminal actions. (People v. Enojas,
the same time with identical contents; or
G.R. No. 204894, 2014)
2. It is a counterpart produced by the same
impression as the original, or from the same
Electronic Document - information or the
matrix, or by mechanical or electronic re-
representation of information, data, figures, symbols
recording, or by chemical reproduction, or by
or other modes of written expression, described or
other equivalent techniques which accurately
however represented, by which a right is
reproduces the original
established or an obligation extinguished, or by
Such copies or duplicates shall be regarded as the
which a fact may be proved and affirmed, which is
equivalent of the original. (REE, Rule 4, Sec. 2)
received, recorded, transmitted, stored, processed,
retrieved or produced electronically.

It includes digitally signed documents and any print-

out or output, readable by sight or other means,
which accurately reflects the electronic data

583

Note: Notwithstanding the foregoing, copies or
duplicates shall not be admissible to the same
extent as the original if: (REE, Rule 4, Sec. 2)
1. A genuine question is raised as to the
authenticity of the original; or
2. In the circumstances it would be unjust or
inequitable to admit the copy in lieu of the
original.
Factors in Determining Evidentiary Weight of
Electronic Evidence (REE, Rule 7, Sec. 1 and 2)
In assessing the evidentiary weight of an electronic
document, the following factors may be considered:
(REE, Rule 7, Sec. 1)
1. The reliability of the manner or method in which
it was generated, stored or communicated,
including but not limited to input and output
procedures, controls, tests and checks for
accuracy and reliability of the electronic data
message or document, in the light of all the
circumstances as well as any relevant
agreement;
2. The reliability of the manner in which its
originator was identified;
3. The integrity of the information and
communication system in which it is recorded
or stored, including but not limited to the
hardware and computer programs or software
used as well as programming errors;
In any dispute involving the integrity of the
information and communication system in which an
electronic document or electronic data message is
recorded or stored, the court may consider, among
others, the following factors: (REE, Rule 7, Sec. 2)
1. Whether the information and communication
system or other similar device was operated in
a manner that did not affect the integrity of the
electronic document, and there are no other
reasonable grounds to doubt the integrity of the
information and communication system;
2. Whether the electronic document was recorded
or stored by a party to the proceedings with
interest adverse to that of the party using it; or
3. Whether the electronic document was recorded
or stored in the usual and ordinary course of
business by a person who is not a party to the
proceedings and who did not act under the
control of the party using it.
4. The familiarity of the witness or the person who
made the entry with the communication and
information system;
5. The nature and quality of the information which
went into the communication and information
system upon which the electronic data
message or electronic document was based; or
6. Other factors which the court may consider as
affecting the accuracy or integrity of the
electronic document or electronic data
message.
Method of Proof
Affidavit Evidence - All matters relating to the
admissibility and evidentiary weight of an electronic
document may be established by an affidavit stating
facts of:
(i) direct personal knowledge of the
affiant; or
(ii) based on authentic records
The affidavit must affirmatively show the
competence of the affiant to testify on the matters
contained therein. (REE, Rule 9, Sec. 1)
Cross-Examination of Deponent – The affiant
shall be made to affirm the contents of the affidavit
in open court and may be cross-examined as a
matter of right by the adverse party. (REE, Rule 9,
Sec. 2)
Examination of Witness
Electronic Testimony - After summarily hearing
the parties pursuant to Rule 9 of these Rules, the
court may authorize the presentation of testimonial
evidence by electronic means. Before so
authorizing, the court shall determine the necessity
for such presentation and prescribe terms and
conditions as may be necessary under the
circumstances, including the protection of the rights
of the parties and witnesses concerned. (REE, Rule
10, Sec. 1)
Transcript of electronic testimony - When
examination of a witness is done electronically, the
entire proceedings, including the questions and
answers, shall be transcribed by a stenographer,
stenotypist or other recorder authorized for the
purpose, who shall certify as correct the transcript
done by him. The transcript should reflect the fact
that the proceedings, either in whole or in part, had
been electronically recorded. (REE, Rule 10, Sec.
2)
c. AUTHENTICATION OF ELECTRONIC
DOCUMENTS AND ELECTRONIC
SIGNATURES
584

Authentication of Electronic Documents (REE,
Rule 5, Section 1 to 3)
Burden of proving authenticity
The person seeking to introduce an electronic
document in any legal proceeding has the burden of
proving its authenticity in the manner provided in
this Rule. (REE, Rule 5, Sec. 1)
Manner of authentication
Before any private electronic document offered as
authentic is received in evidence, its authenticity
must be proved by any of the following means:
(REE, Rule 5, Sec. 2)
1. By evidence that it had been digitally
signed by the person purported to have signed
the same;
2. By evidence that other appropriate security
procedures or devices as may be authorized by
the Supreme Court or by law for authentication
of electronic documents were applied to the
document; or
3. By other evidence showing its integrity and
reliability to the satisfaction of the Judge.
Proof of electronically notarized document
A document electronically notarized in accordance
with the rules promulgated by the Supreme Court
shall be considered as a public document and
proved as a notarial document under the Rules of
Court. (REE, Rule 5, Sec. 3)
Authentication of Electronic Signature
An electronic signature or a digital signature
authenticated in the manner prescribed hereunder
is admissible in evidence as the functional
equivalent of the signature of a person on a written
document. (REE, Rule 6, Sec. 1)
An electronic signature may be authenticated in any
of the following manner: (REE, Rule 6, Sec. 2)
1. By evidence that a method or process was
utilized to establish a digital signature and
verify the same;
2. By any other means provided by law; or;
3. By any other means satisfactory to the
judge as establishing the genuineness of the
electronic signature.
d. ELECTRONIC DOCUMENTS VIS-À-VIS
HEARSAY RULE; BUSINESS RECORDS AS
EXCEPTION TO THE HEARSAY RULE (REE,
RULE 8, SECTION 1 AND 2)
A memorandum, report, record or data compilation
of acts, events, conditions, opinions, or diagnoses,
made by electronic, optical or other similar means is
an exception to the hearsay rule provided that the
following are shown by the testimony of the
custodian or other qualified witness:
1. That it was made at or near the time of or
from transmission or supply of information;
2. That it was made by a person with
knowledge thereof;
3. That it was kept in the regular course or
conduct of a business activity; and
4. That such was the regular practice to
make the memorandum, report, record, or data
compilation by electronic, optical or similar
means (REE, Rule 8, Sec. 1)
This exception may be overcome by evidence of the
untrustworthiness of the source of information or the
method or circumstances of the preparation,
transmission or storage thereof. (REE, Rule 8, Sec.
2)
e. AUDIO, PHOTOGRAPHIC, VIDEO AND
EPHEMERAL EVIDENCE
Ephemeral Electronic Communication - refers to
telephone conversations, text messages, chatroom
sessions, streaming audio, streaming video, and
other electronic forms of communication the
evidence of which is not recorded or retained.
(REE, Rule 2, Sec. 1(k))
Text messages have been classified as “ephemeral
electronic communication” under Section 1(k), Rule
2 of the Rules on Electronic Evidence, and “shall be
proven by the testimony of a person who was a
party to the same or has personal knowledge
585
thereof.” (Vidallon-Magtolis v. Salud, A.M. No. CA-
05- 20-P, 2005)
Admissibility (REE, Rule 11, Section 1 and 2)
Audio, photographic and video evidence
Audio, photographic and video evidence of events,
acts or transactions shall be admissible provided:
(REE, Rule 11, Sec. 1)
1. It shall be shown, presented or displayed to the
court; and
2. It shall be identified, explained or authenticated
by the person who made the recording or by
some other person competent to testify on the
accuracy thereof
Ephemeral electronic communications
Ephemeral evidence shall be proven by the
testimony of a person who was a party to the same
or has personal knowledge thereof.
 In the absence or unavailability of such
witnesses, other competent evidence may
be admitted.
A recording of the telephone conversation or
ephemeral electronic communication shall be
covered by the immediately preceding section.
Note: If the foregoing communications are recorded
or embodied in an electronic document, then the
provisions of Rule 5 on authentication of electronic
documents shall apply. (REE, Rule 11, Sec. 2)
5. PAROL EVIDENCE RULE
PAROL EVIDENCE: any evidence aliunde
(extraneous evidence), whether oral or written,
which is intended or tends to vary or contradict a
complete and enforceable agreement embodied in
a document.
EVIDENCE ALIUNDE: extrinsic evidence that may
refer to testimonial, real or documentary evidence
General Rule: When the terms of an agreement
have been reduced to writing, it is to be considered
as containing all the terms agreed upon and there
can be, between the parties and their successors in
interest, no evidence of such terms other than the
contents of the written agreement.
The term “agreement” includes wills.
Exception: A party may present evidence to
modify, explain or add to the terms of the written
agreement if he puts in issue in his pleading any of
the following:
1. An intrinsic ambiguity, mistake or
imperfection in the written agreement;
2. The failure of the written agreement to
express the true intent and agreement of
the parties thereto;
3. The validity of the written agreement; or
4. The existence of other terms agreed to by
the parties or their successors in interest
after the execution of the written
agreement.
Basis for the Rule
The parol evidence rule is based upon the
consideration that when the parties have reduced
their agreement on a particular matter into writing,
all their previous and contemporaneous agreements
on the matter are merged therein, hence evidence
of a prior or contemporaneous verbal agreement is
generally not admissible to vary, contradict, or
defeat the operation of a valid document.
The reason for the parol evidence rule is the
presumption that when the parties have reduced
their agreement to writing, they have made such
writing the only repository and memorial of the truth,
and whatever is not found in the writing must be
understood to have been waived or abandoned.
(Cruz v. CA, G.R. No. 79962, 1990)
a. APPLICATION OF THE PAROL EVIDENCE
RULE
When Parol Evidence Rule Applies
1. Existence of a valid contract;
2. The terms of the agreement must be in
writing. This may refer to either public or private
writing;
586
3. The dispute is between parties and their
successors in interest; and/or
4. There is dispute as to the terms of the
agreement with the party basing his claim or
asserting a right originating in the instrument or
the relation established thereby.
No express trust concerning an immovable or any
interest therein may be proved by parol evidence.
The parol evidence rule is predicated on the
existence of a document embodying the terms of an
agreement. A receipt is not such a document as it
merely attests to the receipt of money and it is not
and could have not been intended by the parties to
be the sole memorial of their agreement. (Cruz vs.
CA, 192 SCRA 209, 1990)
The parol evidence rule does not apply, and may
not properly be invoked by either party to the
litigation against the other, where at least one of the
parties to the suit is not party or a privy of a party to
the written instrument in question and does not
base a claim on the instrument or assert a right
originating in the instrument or the relation
established thereby. (Lechugas vs. CA, G.R. Nos.
L-39972 & L-40300, 1986)
For the parol evidence rule to apply, a written
contract need not be in any particular form, or be
signed by both parties. What is required is that the
agreement be in writing since written evidence is so
much more certain and accurate than that which
rests in fleeting memory only. (Inciong, Jr. vs. CA,
G.R. No. 96405, 1996)
b. WHEN PAROL EVIDENCE CAN BE
INTRODUCED
In order that the parol evidence may be admissible,
the mistake or imperfection of the document, or its
failure to express the true intent and agreement of
the parties, or the validity of the agreement must be
put in issue in the pleadings. Where the plaintiff
failed to allege any such fact in his complaint, he
cannot introduce parol evidence thereon.
If the defendant invoked such fact in his answer,
parol evidence may be introduced as such fact is
now put in issue.
While parol evidence is admissible in a variety of
ways to explain the meaning of written contracts, it
cannot serve the purpose of incorporating into the
contract additional contemporaneous conditions
which are not mentioned at all in the writing, unless
there has been fraud or mistake. In the case at bar,
it is sought to show that the sugar was to be
obtained exclusively from the crop raised by the
defendant; however, there is no clause in the
written contract which even remotely suggests such
a condition. (Yu Tek vs. Gonzales, G.R. No. L-9935,
1915)
Serrano introduced parol evidence to prove that he
was merely acting as an agent without any
consideration. The Court held that Serrano can
introduce such parole evidence because the case at
bar is not one where the evidence offered varies,
alters, modifies, or contradicts the terms of
indorsement admittedly existing. (Maulini vs.
Serrano, G.R. No. L-8844, 1914)
The act or statement of Woodhouse was not sought
to be introduced to change or alter the terms of the
agreement, but to prove how he induced the Halili
to enter into it — to prove the representations or
inducements, or fraud, with which or by which he
secured the other party's consent thereto. These
are expressly excluded from the parol evidence
rule. (Woodhouse vs. Halili, G.R. No. L-4811, 1953)
Although parol evidence is admissible to explain the
meaning of a contract, it cannot serve the purpose
of incorporating into the contract additional
contemporaneous conditions which are not
mentioned at all in the writing unless there has been
fraud or mistake. (Ortanez vs. CA, G.R. No.
107372, 1997)
a) An intrinsic ambiguity, mistake or
imperfection in the written agreement
Purpose: The purpose of this exception is to enable
the court to ascertain the true intention of the
parties or the true nature of the transaction between
the parties.
INTRINSIC AMBIGUITY: An intrinsic (latent)
ambiguity in the written agreement is required to be
put in issue in the pleading in order that parol
evidence therein may be admitted. There is latent
ambiguity when the writing on its face appears clear
and unambiguous but there are collateral matters or
circumstances which make the meaning uncertain,
or where a writing admits of two constructions both
of which are in harmony with the language used.
587
Example of intrinsic ambiguity is when the
documents refer to a particular person but such
name pertains to many persons with same name.
PATENT OR EXTRINSIC AMBIGUITY: is such
ambiguity which is apparent on the face of the
writing itself and requires something to be added in
order to ascertain the meaning of the words used.
In this case, parol evidence is not admissible,
otherwise the court would be creating a contract
between the parties.
INTERMEDIATE AMBIGUITY: A situation where an
ambiguity partakes of the nature of both patent and
latent ambiguity. In this case, while the words are
seemingly clear and with a settled meaning, they
are actually equivocal and admit of two
interpretations. Here, parol evidence is admissible
to clarify the ambiguity provided that the matter is
put in issue by the pleader. Example: Dollars, tons
and ounces.
Thus, intrinsic and intermediate ambiguities are
curable by extraneous evidence.
NOTE:
False description does not vitiate a document if the
subject is sufficiently identified. The incorrect
description shall be rejected as surplusage while
the correct and complete description standing alone
shall sustain the validity of the writing.
MISTAKE: A mistake of fact which is mutual to the
parties or where the innocent party was imposed
upon by unfair dealing of the other.
To justify the reformation of a written
instrument upon the ground of mistake, the
concurrence of three things is necessary:
1. Mistake should be of fact;
2. Mistake should be MUTUAL or common to
both parties to the instrument – Reformation is
then given because mistake is mutual. The
parties must have come to an actual oral
agreement before they have attempted to
reduce it in writing;
3. The mistake should be ALLEGED and
PROVED by clear and convincing evidence.
IMPERFECTION: includes an inaccurate statement
in the agreement, or incompleteness in the writing,
or the presence of inconsistent provisions therein.
As a matter of substantive law, when one party was
mistaken and the other knew that the instrument did
not state their real agreement but concealed the
fact from the former, the instrument may be
reformed.
b) Failure of the written agreement to express
the true intent and agreement of the parties
thereto
The failure of the writing to express the true
agreement of the parties must put in issue in the
pleading by the party who wants to prove the defect
in the writing.
Although parol evidence is admissible to explain the
meaning of the contract, it cannot serve the purpose
of incorporating into the contract additional
contemporaneous conditions which are not
mentioned at all in the writing unless there has been
fraud or mistake.
Due execution of a writing may be proved by parol
evidence because what the rule prohibits is varying
the terms of the writing by parol evidence.
Ramos set up as affirmative defense that the
contract does not express the true agreement of the
parties because certain important conditions agreed
upon were not included therein by the counsel who
prepared the contract. The Court held that the
parole evidence is admissible when there is
allegation that the agreement does not express the
intent of the parties. (Enriquez vs. Ramos, G.R. No.
L-18077, 1962)
Even if the document appears to be a sale, parol
evidence may be resorted to if the same does not
express the true intent of the parties. The true
understanding in this case is that the portion of the
property will not be disposed of. (Madrigal vs. Court
of Appeals, G.R. No. 142944, 2005)
c) Validity of the written agreement
Parol evidence is admissible to show that the
contract never existed on the ground of fraud,
illegality or incapacity of one of the parties.
588
d) The existence of other terms agreed to by the impairing its credit is provable by parol. (PNB vs.
parties or their successors in interest after Seeto, G.R. No. L-4388, 1952)
the execution of the written agreement
The only proof of the payment was Robles'
Canuto claimed that two days before the expiration testimony regarding it. The Court held that The rule
of the original redemption period, she asked against the admission of parol evidence does not
Mariano for an extension of time for the repurchase extend so far as to preclude the admission of
of the land and Mariano agreed. The Court held that extrinsic evidence to show prior or
the rule forbidding the admission of parol or contemporaneous collateral parole agreements
extrinsic evidence to alter, vary, or contradict a between the parties, but such evidence may be
written instrument does not apply so as to prohibit received, regardless of whether or not the written
the establishment by parole of an agreement agreement contains any reference to such collateral
between the parties to a writing, entered into agreement, and whether the action is at law or in
subsequent to the time when the written instrument equity. (Robles vs. Lizarraga, G.R. No. L-26173,
was executed. (Canuto vs. Mariano, G.R. No. L- 1927)
11346, 1918)
Waiver of the Parol Evidence Rule
ADDITIONAL RULES:
Even if such defenses were not raised in the
Rule on Conditional Agreements pleadings, but the parol evidence is not objected to,
When the operation of the contract is made to such objection is deemed waived.
depend upon the occurrence of an event, which for
that reason is a condition precedent, such may be c. DISTINCTIONS BETWEEN THE BEST
established by parol evidence. This is not varying EVIDENCE RULE AND THE BEST
the terms of the written contract by extrinsic EVIDENCE RULE
agreement for the simple reason that there is no
contract in existence; there is nothing to which to
apply the excluding rule.

The second paragraph contained in the letter is a

condition precedent, which states: “This matter has
been the subject of agreement between your
husband and this office.” When the operation of the PAROL EVIDENCE BEST EVIDENCE
contract is made to depend upon the occurrence of RULE RULE
an event, which, for that reason is a condition
precedent, such may be established by parole
evidence. (Land Settlement and Development
Corporation vs. Garcia Plantation, G.R. No. L-
17820, 1963)

Rule on Collateral Oral Agreements It presupposes that the Contemplates the

A contract made prior to or contemporaneous with original document is situation wherein the
another agreement and if oral and not inconsistent available in court original writing is not
with the written contract is admissible within the available and/or there
exception to parol evidence rule. The parol is a dispute as to
evidence rule will not apply when the collateral oral whether the writing is
agreement refers to separate and distinct subjects. the original

The verbal assurance given by Seeto is a collateral

agreement, separate and distinct from the
indorsement, by virtue of which PNB was induced to
cash the check, and therefore, admissible as an
exception to the parol evidence rule. An extrinsic
agreement between indorser and indorsee which
cannot be embodied in the instrument without

589
Prohibits the varying of
the terms of a written
agreement
With the exception of
wills, the parol evidence
rule applies only to
documents which are
contractual in nature
Can be invoked only
when the controversy is
between the parties to
the written agreement,
their privies, or any party
directly affected thereby
(this is to prevent
fraudulent operation of
the instrument upon the
rights of strangers)
6. AUTHENTICATION AND PROOF
OF DOCUMENTS
a. MEANING OF AUTHENTICATION
Prohibits the
introduction of Authentication is the process of proving the due
substitutionary execution and genuineness of the document.
evidence in lieu of the
original document In order to be admissible in evidence, the object
regardless of whether sought to be offered must authenticated, that is, it
or not it varies the must be shown to have been the very thing that is
contents of the the subject matter of the lawsuit or the very one
original involved to prove an issue in the case.
b. PUBLIC AND PRIVATE DOCUMENTS
DOCUMENTS– a deed, instrument or other duly
authorized paper by which something is proved,
evidenced or set forth.
Applies to all kinds of
writings Documents may either be public or private.
PUBLIC DOCUMENTS
1. The written official acts, or records of the
official acts of the sovereign authority, official
bodies and tribunals, and public officers,
whether of the Philippines, or of a foreign
country;
2. Documents acknowledged before a notary
public except last wills and testaments; and
It can be invoked by 3. Public records, kept in the Philippines, of
any party to an action private documents required by law to the
regardless of whether entered therein.
or not such party has
participated in the All other writings are PRIVATE. (Rule 132, Sec. 19)
writing involved.
PUBLIC PRIVATE
DOCUMENTS DOCUMENTS
Is admissible without Before admitted in
further proof as to its evidence as authentic,
due execution and its due execution and
genuineness authenticity must be
prove
590
A public instrument is Binds only the parties
evidence even against and privies to the d. WHEN EVIDENCE OF AUTHENTICITY OF A
third parties of the fact private writing as to the PRIVATE WRITING IS NOT REQUIRED
which gave rise to its due execution and (ANCIENT DOCUMENTS)
due execution and to date of the document
the date of the latter Where a private document is more than thirty years
old, is produced from the custody in which it would
naturally be found if genuine, and is unblemished by
any alterations or circumstances of suspicion, no
other evidence of its authenticity need be given.
(Rule 132, Sec. 21)

e. HOW TO PROVE THE GENUINENESS OF A

c. WHEN PRIVATE WRITING REQUIRES HANDWRITING
AUTHENTICATION; PROOF OF PRIVATE
WRITING The handwriting of a person may be proved by:

Before any private document offered as authentic is

received in evidence, its due execution and
authenticity must be proved either:
1. By anyone who saw the document executed or
written; or
2. By evidence of the genuineness of the
signature or handwriting of the maker.
Any other private document need only be identified
as that which it is claimed to be. (Rule 132, Sec. 20)
Additional Modes of Authenticating a Private
Writing:
1. Doctrine of Self-Authentication
1. Any witness who believes it to be the
handwriting of such person because he
has seen the person write, or he has
seen writing purporting to be his upon
which the witness has acted or been
charged, and has thus acquired
knowledge of the handwriting of such
person.
2. By a comparison, made by the witness or
the court, with writings admitted or
treated as genuine by the party against
whom the evidence is offered, or proved
to be genuine to the satisfaction of the
judge. (Rule 132, Sec. 22)

Where the facts in the writing could only have Evidence of Genuineness of Handwriting
been known by the writer.

2. Authentication by Adverse Party 1. Testimony of the writer;

Where reply of the adverse party refers to and
affirms the sending and his receipt of the letter
in question, a copy of which the proponent is
offering as evidence.
2. Testimony of a witness who actually saw
the person writing the instrument whether
the witness attested to the instrument or
not;
3. Testimony of a witness who is sufficiently
familiar with handwriting such witness can
give an opinion or can make a comparison
of questioned handwriting and admitted
genuine specimens.

591

NOTE:
 Expert testimony on handwriting is not
mandatory.
f. PUBLIC DOCUMENTS AS EVIDENCE;
PROOF OF OFFICIAL RECORD
Public documents are admissible without further
proof of their genuineness and due execution.
Documents consisting of entries in public records
made in the performance of a duty by a public
officer are prima facie evidence of the facts therein
stated.
All other public documents are evidence, even
against a third person, of the fact which gave rise to
their execution and of the date of the latter. (Rule
132, Sec. 23)
Proof of Official Record
The record of public documents referred to in
paragraph (a) of Section 19 (written official acts, or
records of the official acts), when admissible for any
purpose, may be evidenced by:
1. An official publication thereof; or
2. By a copy attested by the officer having the
legal custody of the record, or by his deputy;
and
3. If the record is not kept in the Philippines,
should be accompanied with a certificate that
such officer has the custody.
If the office in which the record is kept is in a foreign
country,
1. The certificate may be made by a secretary of
the embassy or legation, consul general,
consul, vice consul, or consular agent or by any
officer in the foreign service of the Philippines
stationed in the foreign country in which the
record is kept; and
2. Authenticated by the seal of his office.
g. ATTESTATION OF A COPY
What Attestation Must Contain
Whenever a copy of a document or record is
attested for the purpose of evidence, the attestation
must state, in substance, that the copy is a correct
copy of the original, or a specific part thereof, as the
case may be.
The attestation must be under the official seal of the
attesting officer, if there be any, or if he be the clerk
of a court having a seal, under the seal of such
court. (Rule 132, Sec. 25)
h. PUBLIC RECORD OF A PRIVATE
DOCUMENT
An authorized public record of a private document
may be proved by the original record, or by a copy
thereof, attested by the legal custodian of the
record, with an appropriate certificate that such
officer has the custody. (Rule 132, Sec. 27)
Note: Any public record, an official copy of which is
admissible in evidence, must not be removed from
the office in which it is kept, except upon order of a
court where the inspection of the record is essential
to the just determination of a pending case. (Rule
132, Sec. 26)
i. PROOF OF LACK OF RECORD
A written statement signed by an officer having the
custody of an official record or by his deputy that
after diligent search no record or entry of a specified
tenor is found to exist in the records of his office,
accompanied by a certificate as above provided, is
admissible as evidence that the records of his office
contain no such record or entry. (Rule 132, Sec. 28)
j. HOW A JUDICIAL RECORD IS IMPEACHED
Any judicial record may be impeached by evidence
of:
1. Want of jurisdiction in the court or judicial
officer;
2. Collusion between the parties; or
3. Fraud of the party offering the record, in
respect to the proceedings. (Rule 132, Sec. 29)
592
k. PROOF OF NOTARIAL DOCUMENTS

Every instrument duly acknowledged or proved and

certified as provided by law, may be presented in
evidence without further proof, the certificate of
acknowledgment being prima facie evidence of the
execution of the instrument or document involved.
E. TESTIMONIAL EVIDENCE
(Rule 132, Sec. 30)

l. HOW TO EXPLAIN ALTERATIONS IN A

DOCUMENT

The party producing a document as genuine which

has been altered and appears to have been altered
after its execution, in a part material to the question 1. QUALIFICATIONS OF A WITNESS
in dispute, must account for the alteration. 2. COMPETENCY VERSUS
CREDIBILITY OF A WITNESS
How a party may account for such alteration
3. DISQUALIFICATIONS OF A
He may show that: WITNESSES
a. By reason of mental capacity or
immaturity
b. By reason of marriage
1. The alteration was made by another, without c. By reason of death or insanity of
his concurrence, or adverse part
2. It was made with the consent of the parties d. By reason of privileged communication
affected by it, or 4. EXAMINATION OF A WITNESS
3. It was otherwise properly or innocently made, a. Rights and obligations of a witness
or b. Order in the examination of an
4. The alteration did not change the meaning or individual witness
language of the instrument. i. Direct examination
ii. Cross examination
iii. Re-direct examination
iv. Re-cross examination
v. Recalling the witness
If he fails to do that, the document shall not be h. Leading questions; Misleading
admissible in evidence. (Rule 132, Sec. 31) questions
i. Methods of impeachment of adverse
m. DOCUMENTARY EVIDENCE IN AN party’s witness
UNOFFICIAL LANGUAGE j. How the witness is impeached by
evidence of inconsistent statements;
Documents written in an unofficial language shall Laying the predicate
not be admitted as evidence, unless accompanied k. Evidence of the good character of a
with a translation into English or Filipino. To avoid witness
interruption of proceedings, parties or their l. Judicial Affidavit Rule (A.M. No. 12-8-8-
attorneys are directed to have such translation SC)
prepared before trial. (Rule 132, Sec. 32) 5. ADMISSIONS AND CONFESSIONS
END OF TOPIC

593
 a. Res inter alios acta rule
b. Admission by a party
c. Admission by a third party
d. Admission by a co-partner or agent
e. Admission by a conspirator General Rule
f. Admission by privies All persons who can perceive, and perceiving, can
g. Admission by silence make their known perception to others, may be
h. Confessions witnesses. (Rule 130, Sec. 20)
i. Similar acts as evidence Exceptions: Except as provided by law or the
6. HEARSAY RULE Rules, such as:
a. Meaning of hearsay
b. Reason for exclusion of hearsay
c. Exceptions to the hearsay rule
i. Dying declaration 1. Disqualification by reason of mental
ii. Declaration against interest capacity or immaturity (Rule 130, Sec. 21)
iii. Act or declaration about pedigree 2. Disqualification by reason of marriage (Rule
iv. Family reputation or tradition 130, Sec. 22)
regarding pedigree 3. Disqualification by reason of death or
v. Common reputation insanity of adverse party (Rule 130, Sec.
vi. Part of the res gestae 23)
vii. Entries in the course of business 4. Disqualification on ground of privileged
viii. Entries in official records communication (Rule 130, Sec. 24)
ix. Commercial lists and the like
x. Learned treaties
xi. Testimony or deposition at a former
trial
7. OPINION RULE Loss of the perceptive senses after the occurrence
of the fact does not affect the admissibility of the
a. Opinion of expert witness
testimony.
b. Opinion of ordinary witness
8. CHARACTER EVIDENCE General Rule: Religious or political belief, interest
a. Criminal cases in the outcome of the case, or conviction of a crime
b. Civil cases shall not be a ground for disqualification.
9. RULE ON EXAMINATION OF A Exception: Unless otherwise provided by law.
CHILD WITNESS (A.M. NO. 04-07-
SC) General Rule: Conviction of a crime is not a ground
a. Applicability for disqualification of a witness.
b. Meaning of child witness Exceptions:
c. Competency of a child witness
d. Examination of a child witness
e. Live-link TV testimony of a child
witness 1. Those convicted of falsification of a
f. Videotaped deposition of a child document, perjury or false testimony cannot
witness be witnesses to a will. (New Civil Code, Art.
g. Hearsay exception in child abuse cases 821)
h. Sexual abuse shield rule 2. An accused convicted of a crime involving
i. Protective orders moral turpitude, whenever made a co-
accused in any criminal case, cannot be
discharged to become a witness for the
Government. (Rule 119, Sec. 17)

1. QUALIFICATIONS OF A
WITNESS

594
A prospective witness must show that he has the
following abilities: (ORRR)
1. To Observe – testimonial quality of
perception;
2. To Remember – testimonial quality of
memory;
3. To Relate – testimonial quality of narration;
and
4. To Recognize a duty to tell the truth –
testimonial quality of sincerity (Herrera, p. 278)
2. COMPETENCY VERSUS
CREDIBILITY OF A WITNESS
Competency pertains to the legal fitness or ability of
a witness to be heard on a trial of a cause.
Credibility of a witness refers to the believability of a
witness and has nothing to do with the law or the
rules. It refers to the weight and trustworthiness or
reliability of the testimony. (Riano, p.297)
By credibility of a witness is meant his integrity,
disposition, and intention to tell the truth in the
testimony he has given.
To hold that a particular person is competent to
testify upon a given matter does not mean that his
testimony thereon must be believed by the court or
must be deemed by it to be of sufficient probative
value to establish the point which it was intended to
prove. Competency of a witness is one thing, and it
is another to be a credible witness. (Regalado 2008
ed.)
The Test of Competency
Whether the individual has sufficient understanding
to appreciate the nature and obligation of an oath
and sufficient capacity to observe and describe
correctly the facts in regard to which he is called to
testify.
Presumption of Competency
As a general rule, when a witness takes the stand
to testify, the law presumes that he is competent.
The burden is upon the party objecting to the
competency of a witness to establish the grounds of
incompetency.
When Objection to Competency Must be Made:
The objection to the competency of a witness must
be made:
1. Before the witness testifies – if the party
knows before the trial that the witness is
incompetent
2. As soon as it becomes apparent – if the
incompetency appears on the trial
Effect of Failure to Object to Competency of
Witness
Failure to object to the competency of a witness
amounts to a waiver and once the evidence is
admitted, it shall stay in the records and can be
weighed according to its merits.
3. DISQUALIFICATIONS OF
WITNESSES
Two (2) Kinds of Disqualifications of Witnesses:
1. ABSOLUTE DISQUALIFICATION – the
person is forbidden to testify on any matter
(i.e., Section 21 and 22, Rule 130 of the Rules
of Court).
2. RELATIVE DISQUALIFICATION – the person
is forbidden to testify only on certain matters
(i.e., Section 23 and 24, Rule 130 of the Rules
of Court).
a. BY REASON OF MENTAL CAPACITY OR
IMMATURITY
The Following Persons Cannot be Witnesses:
1. Those whose mental condition, at the time of
their production for examination, is such that they
are incapable of intelligently making known their
perception to others; (By reason of mental
incapacity); and
595

2. Children whose mental maturity is such as to
render them incapable of perceiving the facts
respecting which they are examined and of relating
them truthfully. (By reason of immaturity) (Rule 130,
Sec. 21)
If at the time the witness is testifying, he/she has
the mental capacity to distinguish between right and
wrong so far as the facts in issue and his/her
testimony are involved, understands the nature and
obligation of an oath, and can give fairly intelligent
and reasonable narrative of the matters which
he/she testifies; then the witness is competent to
testify.
The victim’s feeble-mindedness was an undisputed
fact. However, there is no showing that she could
not convey her ideas by words or signs. It appears
in the records that Clara gave sufficiently intelligent
answers to the questions propounded by the court
and the counsels. The court is satisfied that the
complainant can perceive and transmit in her own
way her own perceptions to others. (People vs. De
Jesus, G.R. No. L-39087, 1984)
Paul, a five-year-old boy, testified that Rolando
boxed his wife then burned her. The testimony of
Paul shows that he is of above average intelligence,
that he is capable of giving responsive answers, of
recalling events, and of relating his recollections.
For a child witness to be competent, it must be
shown that he has the capacity of (1) observation,
(2) of recollection, and (3) of communication.
(People vs. Mendoza, G.R. No. 113791, 1996)
A mental retardate is not per se disqualified from
being a witness. As long as his senses can perceive
facts and he can convey his perceptions in court, he
can be a witness. (People of the Philippines v.
Españole, G.R. No. 119308, 1997)
Presumption of Sanity
General rule: The law presumes that every person
is of sound mind, in the absence of proof to the
contrary.
Exception: Witness is a lawful inmate of an asylum
for the insane. (Torres v. Lopez, G.R. No. L-24569,
1926)
b. BY REASON OF MARRIAGE (MARITAL
DISQUALIFICATION RULE)
Reasons:
1. There is identity of interests between husband
and wife;
2. If one were to testify for or against the other,
there is the consequent danger of perjury;
3. The policy of the law is to guard the security
and confidence of private life and to prevent
domestic disunion and unhappiness;
4. Where there is want of domestic tranquility,
there is danger of punishing one’s spouse
through the hostile testimony of the other.
Requisites:
1. Spouses are legally married; and
2. Either spouse must be a party to a case
Exceptions:
1. The case in which the husband or wife is
called to testify is a civil case instituted by
one against the other
2. That it is a criminal case for a crime
committed by one against the other, or the
latter's direct descendants or ascendants.
Reason for the Exceptions:
Where the martial and domestic relations are so
strained that there is no more harmony to be
preserved or peace and tranquility which may be
disturbed, the reason based upon such harmony
and tranquility fails. In such a case, identity of
interests disappears and the consequent danger of
perjury based on that identity is nonexistent.
(Alvarez v. Ramirez, G.R. No. 143349, 2005)
When an offense directly attacks or directly and
vitally impairs the conjugal relation, it comes within
the exception to the statute that one shall not be a
witness against the other except in a criminal
prosecution for a crime committed by one against
the other. (People v. Castaneda, G.R. No. L-46306,
1979)
The basis for the disqualification is the relationship
of the spouses and not their pecuniary interest. In
the cases wherein a spouse is allowed to be
examined by the adverse party as a hostile witness
when the spouses are parties to the action, the
interests of the spouses are separate. The spouse
offered as a witness is merely a nominal party and
is allowed to do so only as a concession from the
596
marital disqualification rule for the sake of
discovery. (Lezama vs. Rodriguez, G.R. No. L-
25643, 1968)
Duration of the Privilege
The privilege lasts only during marriage.
c. BY REASON OF DEATH OR INSANITY OF
ADVERSE PARTY (the “Dead Man’s
Statute”)
Purpose:
The object and purpose of the rule is to guard
against the temptation on the part of the surviving
party to give false testimony against the deceased
(or his/her estate) or person of unsound mind as to
any matter of fact occurring before the other party
died or became of unsound mind. The Dead Man’s
Statute puts the two parties on equal footing:
Where death has sealed the lips of the dead, the
law seals the lips of the living.
Requisites:
1. The witness is a party or assignor of a party to
a case or is a person in whose behalf a case is
prosecuted;
2. The action is against an executor or
administrator or other representative of a
deceased person or against a person of
unsound mind;
3. The subject matter of the action is a claim or
demand against the estate of a deceased
person or a person of unsound mind; and
4. The testimony of witnesses and the testimony
of the party or assignor of a party to the case
refer to any matter of fact which occurred
before the death of the deceased or before the
person became insane.
Waiver of the Privilege:
The disqualification under this rule is waived if the
defendant does not timely object to the admission of
such evidence or if the defendant testifies or cross-
examines the other party on the prohibited matters.
It is also waived when the defendant files a
counterclaim against the plaintiff. (Goni v. Court of
Appeals, G.R. No. L-27434, 1986)
The Dead Man’s Statute Does Not Apply:
1. To a witness who is not party or assignor of a
party or person in whose behalf a case is being
prosecuted.
2. Where the case is not a claim or demand
against the estate of a deceased person.
No claim or demand is being made against the
estate of Manuel Guerrero. The Dead Man’s Statute
only applies in cases where there is a claim or
demand against the estate of the deceased or
against the person of an unsound mind. (Guerrero
vs. St. Claire Realty, 124 SCRA 553, 1983)
The statute does NOT apply when the actions were
not brought "against" the estate or not brought upon
claims "against" the estate. In this case, the action
is one by the administratrix to enforce demand "BY"
the estate. Hence, the statute is inapplicable and
the widow can testify. (Tongco vs. Vianzon, G.R.
No. 27498, 1927)
3. When there is waiver.
4. To a witness who is an officer and/or
stockholder of a corporation testifying for or
against the corporation which is a party to an
action upon a claim or demand against the
estate of a deceased person. (Lichauco v.
Altantic Gulf, G.R. No. L-2016, 1949)
5. When the testimony of plaintiff denies the
occurrence of a transaction with the deceased.
6. When the testimony refers to fraudulent
transactions as the rule was never intended to
serve as shield for fraud.
7. If the case is prosecuted by an executor or
administrator or other representative of a
deceased person or by a person of unsound
mind.
8. The dead man's statute is applied to cases filed
AGAINST the administrator for claims
AGAINST the estate of the deceased. In this
case, it the administrator who filed the case for
delivery of the stocks and it was not a claim
against the estate so the dead man's statute
597
 does not apply. (Razon vs. IAC, G.R. No. 4. Where the privileged communication came into
74306, 1992) the hands of a third party.

9. When the testimony is favorable to the
representative of the deceased person or
person of unsound mind.
d. BY REASON OF PRIVILEGED
COMMUNICATION
Privilege – a rule of law that to protect a particular
relationship or interest, either permits a witness to
refrain from giving testimony he otherwise could be
compelled to give, or permits someone, usually one
of the parties, to prevent the witness from revealing
certain information. (Herrera, p.315)
Where a privileged communication from one spouse
to another comes into the hands of a third party,
whether legally or not, without collusion and
voluntary disclosure on the part of either of the
spouses, the privilege is thereby extinguished and
the communication, if otherwise competent,
becomes admissible. (People vs. Carlos G.R. No.
L-22948, 1925)
5. When there is waiver.
Distinction between the Marital Disqualification
Rule and the Marital Communications Privilege

Privileged Communications (Rule 130, Section

24):
1. Husband and Wife
2. Attorney and Client
3. Physician and Patient
4. Priest and Penitent
5. Public Officers MARITAL MARITAL
DISQUALIFICATION COMMUNICATIONS
a) Husband and Wife (Marital Communications RULE PRIVILEGE
Privilege) (Sec 22) (Sec 24(a))

Reason:
Society’s interest in the preservation of peace of
families and its strongest safeguard is to preserve
any violations of those confidences inherent in the
marital status.
Prohibits adverse Prohibits only as to
Ability to communicate without inhibitions is testimony regardless of knowledge obtained
essential in a marital relationship. source through confidence in
the marital relation
Requisites:
1. The spouses must be legally married; and
2. The communication must be confidential and
made during the marriage.

The privilege applies to any form of confident

disclosure both in words and in conduct. Exists only when a Exists whether the
party to the action is husband or the wife is
To whom the privilege belongs the husband or wife a party to the action or
The privilege belongs to the communicating spouse. not

The privilege does NOT apply:

1. When the husband or wife is called to be a
witness in a civil case instituted by one against
the other.
2. When the husband or wife is called to be a
witness in a criminal case for a crime Ceases upon death Continues even after
committed by one against the other or the the termination of the
latter’s direct ascendants or descendants. marriage
3. Communications between husband and wife
overheard by a third person.

598
b) Attorney and Client

Reason: It is based upon grounds of public policy

to enable full disclosure. 2. When the communication was not intended to
be confidential.
McPartlin was entitled to the protection of the
attorney-client privilege, because his statements
were made in confidence to an attorney for a co-
defendant for a common purpose related to both
defenses. (U.S. vs. McPartlin, 595 F.2d 1321 (7th Note: A communication made by a client to his
Cir. 1979)) attorney for the express purpose of its being
communicated to a third person is essentially
The period to be considered is the date when the inconsistent with the confidential relation. Such
privileged communication was made by the client to communication is between the third person and
the attorney in relation to either a crime committed the client, the attorney being merely an agent.
in the past or with respect to a crime intended to be (Uy Chico vs. Union Life, G.R. No. L-9231,
committed in the future. In other words, If the client 1915)
seeks his lawyer’s advice with respect to a crime
that the former has theretofore committed, he is
given the protection of a virtual confessional seal
which the attorney-client privilege declares cannot
be broken by the attorney without the client’s
consent. (People vs. Sandiganbayan, G.R. No.
115439-41, 1997)
3. When the communication is for an unlawful
Requisites: purpose having for its object the commission of
1. There must be a relation of attorney and client; a crime.
2. Communication by client to attorney; and
3. Communication must have been made to the
attorney in the course of or with a view to
professional employment.

Preliminary communications are within the privilege

provided they are made for the purpose of creating
the attorney-client relationship. 4. When the communication was made in the
presence of third persons.
The communications by Upjohn's employees to
counsel are covered by the attorney-client privilege
insofar as the responses to the questionnaires and
any notes reflecting responses to interview
questions are concerned. The communications
concerned matters within the scope of the
employees' corporate duties, and the employees
themselves were sufficiently aware that they were 5. When the communication is overheard by third
being questioned in order that the corporation could persons.
obtain legal advice. (Upjohn Co. vs. U.S., 449 U.S.
383, 1981)

The Privilege Does NOT Apply:

Note: communication divulged to "strangers" or
1. When there is no attorney-client relationship. outsiders can scarcely be considered a
confidential communication between attorney

599
 and client. (U.S. vs. Gordon-Nikkar, 518 F.2d
972 (5th Cir. 1975))
6. When the communication comes to the hands
of a third party.
Note: The privilege which protects
communications between attorney and client
does not extend to a copy of a letter written by
the client to his attorney which comes to the
hands of the adverse party. Where the
authenticity of such documents is admitted, the
court will take no notice of the manner in which
it was obtained. (Barton vs. Leyte Asphalt &
Mineral Oil Co., G.R. No. L-21237, 1924)
7. When the action is one brought by the client
against the attorney and the disclosure of the
confidential information becomes necessary for
the attorney’s own protection. (But limited only
for what is necessary for attorney's own
protection)
Note: Contracts between attorneys and clients
are inherently personal and private matters, but
they are a constant subject of litigation, and
contracts relating to fees are essentially not of
a privileged nature. In other words, the terms of
employment between attorney and client are
not of a privileged nature. (Orient Insurance vs.
Revilla, G.R. No. 34098, 1930)
Note: When either the attorney or the client
breaches his duty, the fiduciary relations
between the two disappears justifying the
removal of the case from the ambit of the
privilege. The relationship between the attorney
and client is uberrimei fidei. Thus when the
trust and confidence governing the relationship
ceases to exist and the parties become
adversarial, the communication is no longer
protected. (Regala vs. Sandiganbayan G.R.
No. 105938, 1996)
8. When there is waiver.
(The attorney cannot make a waiver without the
client's consent - express or implied)
The fact that a defense investigator on
respondent’s behalf elicited statements of third
parties does not convert them into respondent’s
personal communications. Also, the work-
product privilege may be waived when the
defense presents its investigator as a witness
thus opening the investigator, along with the
product of his work, to cross-examination. (U.S.
vs. Nobles, 422 U.S., 1975)
9. The receipt of fees from a client is not usually
within the privilege because the payment of a
fee is not normally a matter of confidence or a
communication. The ministerial or clerical
services of an attorney in transferring funds to
or from a client is not a matter of confidence
that is protected by the privilege. (In re Grand
Jury Investigation, 732 F.2d 447, 1983)
Crime or Fraud as Exception to the Privilege
600
There is no privilege if the services of the lawyer
were sought or obtained to enable or aid anyone to
commit or plan to commit a crime or a fraud.
Waiver of the Privilege:
1. Client’s failure to object to the attorney’s
testimony.
2. Giving evidence on the privileged
communication.
3. When the privileged communication falls into
the hands of the adverse party.
4. In calling or cross-examining his attorney
regarding the privileged communication.
Where the government’s lawyers have no case
against an attorney’s client unless, by revealing the
client’s name, the said name would furnish the only
link that would form the chain of testimony
necessary to convict an individual of a crime, the
client’s name is privileged. (Regala v.
Sandiganbayan, G.R. No. 105398, 1996)
General Rule: Client’s identity is not privileged.
Exceptions:
1. Where a strong probability exists that
revealing the client’s name would implicate
the client in the very activity for which he
sought the lawyer’s advice.
2. Where disclosure would open the client to
civil liability.
3. When the client’s name would furnish the
link in the chain of testimony necessary to
convict an individual of a crime.
4. When the nature of the attorney-client
relationship has been previously disclosed
and it is the identity which is intended to be
confidential. (LAST LINK DOCTRINE –
non-privileged information such as identity
of the client is protected if the revelation of
such information would necessarily reveal
privileged information. (Riano, p. 283)
Work-product privilege
Here is simply an attempt, without purported
necessity or justification, to secure written
statements, private memoranda and personal
recollections prepared or formed by an adverse
party's counsel in the course of his legal duties. As
such, it falls outside the arena of discovery and
contravenes the public policy underlying the orderly
prosecution and defense of legal claims. Not even
the most liberal of discovery theories can justify
unwarranted inquiries into the files and the mental
impressions of an attorney. (Hickman v. Taylor, 329
U.S. 495, 1947)
If they reveal communications, they are protected
by the attorney-client privilege. To the extent they
do not reveal communications they reveal attorneys'
mental processes in evaluating the
communications. These are protected as they
constitute work product showing the lawyer’s mental
processes. It has already been held in Hickman that
such work product cannot be disclosed simply on a
showing of substantial need or inability to obtain the
equivalent without undue hardship. (Upjohn v. U.S.,
449 U.S. 383, 1981)
c) Physician and Patient
Reason:
The privilege is intended to facilitate and make safe,
full and confidential disclosure.
Requisites:
1. The privilege is claimed in a civil case;
2. The person against whom the privilege is
claimed is one duly authorized to practice
medicine, surgery or obstetrics;
3. Such person acquired the information while he
was attending to the patient;
4. The information was necessary to enable him
to act in that capacity; and
5. The information was confidential and if
disclosed would blacken the reputation of the
patient.
In order that the disqualification by reason of
physician-patient privilege be successfully claimed,
the following requisites should concur:
1. the privilege is claimed in a civil case;
2. the person against whom the privilege is
claimed is one duly authorized to practice
medicine, surgery or obstetrics;
3. such person acquired the information while he
was attending to the patient in his professional
capacity;
4. the information was necessary to enable him to
act in that capacity; and
5. the information was confidential and if
disclosed, would blacken the reputation of the
patient. (Lim vs. Court of Appeals, 214 SCRA
273, 1992)
601

Scope of the Privilege:
The prohibition applies not only to communications
made by the patient to the physician but also to
opinions or prescriptions.
The privilege does not cover all obtained
confidentially or necessary for treatment. The
information must be one, if disclosed, would
blacken the reputation of the patient.
The Privilege Does not Apply:
1. When the case is a criminal case.
2. When the testimony refers to information
regarding a patient which the physician
acquired either before the relation of physician
and patient began or after its termination.
3. When there is waiver.
4. If the physician acted for purposes other than
to prescribe for the patient.
5. When the information was not necessary for
the proper treatment of the patient.
6. When the information does not blacken the
reputation of the patient.
7. Where an action for damages is brought by the
patient against his physician.
8. When the physician is presented as an expert
witness and the facts testified to are merely
hypothetical. (Lim v. Court of Appeals, G.R. No.
91114, 1992)
9. When the information was intended to be
public, such as results of physical and mental
examinations ordered by the court and results
of autopsies.
Where the person against whom the privilege is
claimed is the patient’s husband who testifies on a
document executed by medical practitioners, his
testimony does not have the force and effect of the
testimony of the physician who examined the
patient and executed the report. Plainly, this does
not fall within the prohibition. (Krohn vs. Court of
Appeals, G.R. No. 108854, 1994)
d) Priest and Penitent
Reason:
To compel a minister or priest to testify to a
confession made to him is equivalent to an
annulment of the confession institution.
Requisites:
1. The confession must be made to the minister
or priest in his professional character, and in
the course of discipline enjoined by the rules of
practice of the denomination to which the priest
or minister belongs; and
2. The confession must be of a penitential
character.
The Privilege Does Not Apply:
1. Where a minister is consulted not as such (e.g.,
he is consulted as a friend or interpreter).
2. Where the confession is not made in the
course of religious discipline.
3. When there is waiver.
e) Public Officers
Reason:
The right of the people to information on matters of
public concern shall be recognized. Access to
official records, and to documents and papers
pertaining to official acts and transactions, or
decisions as well as to government research data
used as a basis for policy development, shall be
afforded the citizen subject to such limitations as
maybe provided by law. (1987 Constitution, Article
III, Section 7)
Requisites:
1. The communication must have been made
to a public officer;
2. The communication was made in official
confidence; and
3. Public interest would suffer by the
disclosure of the information
Exceptions:
1. If what is asked is useful evidence to
vindicate the innocence of an accused
person.
2. If the information will lessen the risk of
false testimony.
3. If the information is essential to the proper
disposition of the case.
4. If the benefit to be gained by a correct
disposition of the litigation is greater than
any injury which could inure to the relation
by a disclosure of the information.
602
What is usually referred to as informer’s privilege is
in reality the government’s privilege to withhold from
disclosure the identity of persons who furnish
information of violations of laws to officers charged
with enforcement of that law. (People v. Ong, G.R.
No. 137348, 2004)
The privilege under Section 21, Rule 130 is
intended not for the protection of public officers but
for the protection of public interest. Where there is
no public interest that would be prejudiced, this rule
will not be applicable. The rule that a public officer
cannot be examined as to communications made to
him in official confidence does not apply when there
is nothing to show that the public interest would
suffer by the disclosure question. (Banco Filipino v.
Monetary Board, G.R. No. 70054, 1986)
When the ground for asserting the privilege as to
subpoenaed materials sought for use in a criminal
trial is based only on the generalized interest in
confidentiality, unsupported by a claim of the need
to protect military, diplomatic or sensitive national
security secrets, it cannot prevail against a
demonstrated, specific need for the
documents/recordings needed and over the
fundamental demands of due process of law in the
administration of criminal justice. The generalized
assertion of the privilege must yield to the
demonstrated need for evidence in a pending
criminal trial. (U.S. vs. Nixon, 418 U.S. 683, 1974)
There is a Recognized Presumptive Presidential
Communications Privilege - it was the President
herself, through Executive Secretary Ermita, who
invoked executive privilege on a specific matter
involving an executive agreement between the
Philippines and China, which was the subject of the
three. (Neri v. Senate Committee, G.R. No. 180643,
2008)
Newsman’s Privilege (R.A. 1477, Sec. 1)
Without prejudice to his liability under the civil and
criminal laws, the publisher, editor, columnist or
duly accredited reporter of any newspaper,
magazine or periodical of general circulation cannot
be compelled to reveal the source of any news-
report or information appearing in said publication
which was related in confidence to such publisher,
editor or reporter unless the court or a House or
committee of Congress finds that such revelation is
demanded by the security of the State.
Privileged Communication in Labor Conciliation
Proceedings (Labor Code, Art. 233)
Information and statements made at conciliation
proceedings shall be treated as privileged
communication and shall not be used as evidence
in the Commission. Conciliators and similar officials
shall not testify in any court or body regarding any
matters taken up at conciliation proceedings
conducted by them.
Secrecy of Bank Deposits (R.A. 1405, Sec. 2)
All deposits of whatever nature with banks or
banking institutions in the Philippines including
investments in bonds issued by the Government of
the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an
absolutely confidential nature and may not be
examined, inquired or looked into by any person,
government official, bureau or office, except upon
written permission of the depositor, or in cases of
impeachment, or upon order of a competent court in
cases of bribery or dereliction of duty of public
officials, or in cases where the money deposited or
invested is the subject matter of the litigation.
Judicial Privilege
At the most basic level and subject to the principle
of comity, Members of the Court, and Court officials
and employees may not be compelled to testify on
matters that are part of the internal deliberations
and actions of the Court in the exercise of their
adjudicatory functions and duties, while testimony
on matters external to their adjudicatory functions
and duties may be compelled by compulsory
processes.
To summarize these rules, the following are
privileged documents or communications, and are
not subject to disclosure:
1. Court actions such as the result of the raffle of
cases and the actions taken by the Court on
each case included in the agenda of the Court's
session on acts done material to pending
cases, except where a party litigant requests
information on the result of the raffle of the
case, pursuant to Rule 7, Section 3 of the
IRSC;
2. Court deliberations or the deliberations of the
Members in court sessions on cases and
matters pending before the Court;
3. Court records which are "predecisional" and
"deliberative" in nature, in particular,
603
 documents and other communications which
are part of or related to the deliberative
process, i.e., notes, drafts, research papers,
internal discussions, internal memoranda,
records of internal deliberations, and similar
papers.
4. Confidential Information secured by justices,
judges, court officials and employees in the
course of their official functions, mentioned in
(2) and (3) above, are privileged even after
their term of office.
5. Records of cases that are still pending for
decision are privileged materials that cannot be
disclosed, except only for pleadings, orders
and resolutions that have been made available
by the court to the general public.
6. The principle of comity or inter-departmental
courtesy demands that the highest officials of
each department be exempt from the
compulsory processes of the other
departments.
7. These privileges belong to the Supreme Court
as an institution, not to any justice or judge in
his or her individual capacity. Since the Court is
higher than the individual justices or judges, no
sitting or retired justice or judge, not even the
Chief Justice, may claim exception without the
consent of the Court. (In re: Production of Court
Records, 2012)
Witness Protection Security and Benefit Act
(R.A. 6981, Sec. 7)
All proceedings involving application for admission
into the Program and the action taken thereon shall
be confidential in nature. No information or
documents given or submitted in support thereof
shall be released except upon written order of the
Department or the proper court.
4. EXAMINATION OF A WITNESS
The examination of a witness shall be done:
1. In open court; and
2. Under oath or affirmation. (Rule 132, Sec. 1)
The answers shall be given orally except if:
1. The witness is incapacitated to speak;
2. The question calls for a different mode of
answer. (Rule 132, Sec. 1)
Note: However, check the Judicial Affidavit Rule
which now allows the testimonies of witnesses to be
in affidavits.
Open Court
It is a court formally opened and engaged in the
transaction of judicial affairs.
Reason why Examination Should be Done in
Open Court
This method allows the court the opportunity to
observe the demeanor of the witness and also
allows the adverse party to cross-examine the
witness. (Riano, Evidence, 359)
OATH – A solemn declaration, accompanied by a
swearing to God or a revered person or thing, that
one’s statement is true or that one will be bound to
a promise. (Black’s Law Dictionary, 7th Ed., 1176)
AFFIRMATION – is a solemn pledge equivalent to
an oath but without reference to a supreme being or
to swearing. (Black’s Law Dictionary, 7th Ed. 68)
Purpose of Rule Requiring Oath
To affect the conscience of the witness and compel
him/her to speak the truth and to lay him/her open
to punishment for perjury in case he/she willfully
falsified.
No special wording is necessary for an affirmation,
provided that the language used is designed to
impress upon the individual the duty to tell the truth.
(U.S v Kalaydjian, 784 F.2d 53 (2d Cir.1986));
(Riano, Evidence, 361)
The witness must take either an oath or affirmation,
but the option to do so is given to the witness and
not to the court. (Riano, Evidence, 360)
Exceptions to Open Court Examinations:
1. Under the rule on Summary Procedure
when the affidavits of the parties shall
constitute the direct testimonies of the
witnesses who executed the same. (Rule
on Summary Procedure, Sec. 15)
2. In civil cases, the parties are merely
required to submit the affidavits of their
witnesses and other pieces of evidence on
604
 the factual issues (Rule on Summary
Procedure, Sec. 9)
3. Depositions which may be taken before a
notary public (Rule 23, Sec. 10) or before
any person authorized to administer oaths
(Rule 23, Sec. 14)
4. In a criminal case when a party may utilize
the testimony of a witness who is
deceased (Rule 115, Sec. 1(f))
5. Under the Judicial Affidavit Rule, the
judicial affidavit shall take the place of
direct testimonies of the witnesses (Judical
Affidavit Rule, Sec. 2) (Riano,Evidence,
360)
Proceedings to be recorded
The Entire Proceedings of a Trial or Hearing
Shall be RECORDED, including:
1. The questions propounded to a witness and
his answers thereto.
2. The statement made by the judge or any of
parties, counsel or witnesses with reference
to the case. (Rule 132, Sec. 2)
A transcript of record of the proceedings made by
the official stenographer, stenotypist or recorder
and certified as correct by him shall be deemed
prima facie correct statement of such proceedings.
(Rule 132, Sec. 2)
a. RIGHTS AND OBLIGATIONS OF A WITNESS
Obligation of a witness
A witness must answer questions, although his/her
answer may tend to establish a claim against
him/her.
Rights of a Witness:
1. To be protected from irrelevant, improper,
or insulting questions, and from harsh or
insulting demeanor;
2. Not to be detained longer than the
interests of justice require;
3. Not to be examined except only as to
matters pertinent to the issue;
4. Not to give an answer which will tend to
subject him/her to a penalty for an offense
unless otherwise provided by law (Right
against self-incrimination);
5. Not to give an answer which will tend to
degrade his/her reputation, unless it be the
very fact at issue or to a fact from which the
fact in issue would be presumed. But a witness
must answer to the fact of his previous final
conviction for an offense. (RIGHT AGAINST
SELF-DEGRADATION)
Scope of Right Against Self-Incrimination
1. The right against self-incrimination is
granted only in favor of individuals. Therefore,
a corporation cannot invoke that privilege as
the questioned testimony can come only from a
corporate officer or employee who has a
personality distinct from that of the corporation.
2. The right covers only testimonial
compulsion and production by him/her of
incriminating documents. It does not exclude
the body when it can furnish relevant and
competent evidence.
Right Against Self-incrimination of an Accused
and an Ordinary Witness Distinguished
ACCUSED ORDINARY WITNESS
He cannot be He may be compelled
compelled to testify or to testify by subpoena
produce evidence having only the right to
even by subpoena or refuse to answer an
other process or order incriminating question
of the court. at the time it is asked to
605
 him. prosecution of the
witness.

He can refuse outright He does not have a

to take the stand as a right to disregard a
witness subpoena, decline to Where the statute grants only “use immunity,”
appear before the court merely testifying and/or producing the evidence
at the time appointed, does not render the witness immune from
or refuse to testify prosecution despite his/her invocation of the right
altogether. The witness against self-incrimination. He/she is merely saved
receiving a subpoena from the use against him/her of such statements or
must obey. It is only evidence which he/she has been compelled to
when the incrimination produce notwithstanding his/her having seasonably
question is addressed invoked said right. (Galman v. Pamaran, 138 SCRA
that he may refuse to 294, G.R. Nos. L-71208-09 and L-71212-13, 1985)
answer. (Rosete v Lim,
GR No. 136051, June Note:
8, 2006) Under R.A. 6981 (Witness Protection, Security and
Benefit Act), A witness admitted into the witness
protection program cannot refuse to testify or give
evidence, produce books, documents, records, or
writings necessary for the prosecution of the
offense or offenses for which he has been admitted
on the ground of the right against self-incrimination.
(R.A 6981, Sec. 14) (Riano, Evidence, 363)
Immunity Statutes
b. ORDER IN THE EXAMINATION OF AN
INDIVIDUAL WITNESS

The order in which an individual witness may be

examined is as follows:

“USE” IMMUNITY “TRANSACTIONAL”

IMMUNITY 1. Direct-examination by the proponent;
2. Cross-examination by the opponent;
3. Re-direct examination by the proponent;
4. Re-cross-examination by the opponent.

Prohibits the use Grants immunity to the

of the witness’s witness from prosecution
compelled for an offense to which his
testimony and its compelled testimony
fruits in any relates. (i) DIRECT EXAMINATION
manner in
connection with
the criminal

606

DIRECT EXAMINATION is the examination-in-chief
of a witness by the party presenting him on the facts
relevant to the issue.
Scope of Direct Examination
All facts relevant to the issue
Purpose
To elicit facts about the client’s cause of action or
defense. It is now subject to the Judicial Affidavit
Rule, which took effect on January 1, 2013. (Riano,
Evidence, 369)
(ii) CROSS-EXAMINATION
CROSS EXAMINATION
Cross examination is the questioning of a witness at
a trial or hearing by the party opposed to the party
who called the witness to testify (Black’s Law
Dictionary, 7th Ed. 433)
Scope of Cross Examination
1. Any matter stated in the direct
examination, or connected therewith
2. All important facts bearing upon the issue
Purpose of Cross Examination
1. To bring out facts favorable to the counsel’s
client not established by direct testimony
(Riano, Evidence, supra citing Jackson v
Feather River Water Co., 1859 14 C 18)
2. To enable counsel to impeach or to impair the
credibility of the witness. (Riano, Evidence,
supra citing Kelly v Bailey 1961 189 CA2d 728,
11 CR 448)
Rules on Cross-Examination
1. AMERICAN RULE
Cross-examination must be confined to matters
inquired about in the direct examination.
2. ENGLISH RULE
A witness may be cross-examined not only
upon matters testified by him on his direct
examination but also on all matters relevant to
the issue. We follow the English Rule.
NOTE:
 But, where the witness is an unwilling or
hostile witness so declared by the court or
is an adverse party, the cross-examination
shall only be on the subject matter of his
examination-in-chief. (Rule 132, Sec.12)
Cross Examination is an Absolute Right
Cross-examination is an absolute right. The
Constitution provides that the accused shall enjoy
the right to meet the witnesses face to face. (The
1987 Philippine Constitution, Art. III, Sec. 14)
When Cross Examination Becomes a Privilege
When the cross-examination in chief is concluded
and the attendance of the witness is either
dispensed with from the stand or the re-
examination, if any, has begun.
The right is a personal one which may be waived
expressly or impliedly by conduct amounting to a
renunciation of the right of cross-examination.
Thus, where a party has had the opportunity to
cross-examine a witness but failed to avail
himself/herself of it, he/she necessarily forfeits the
right to cross-examine and the testimony given on
607
 3. It may also be an opportunity to rehabilitate a
witness whose credibility has been damaged.
(Riano, Evidence, 370)
direct examination of the witness will be received or
allowed to remain in the record. (Fulgado v. CA,
G.R. No. L-61570, 1990)

Effects of death or absence of a witness (iv) RE-CROSS-EXAMINATION

1. Dies before his cross examination is over –

If the witness dies before his cross-examination
is over, his testimony on the direct may be
stricken out only with respect to the testimony RE-CROSS EXAMINATION
not covered by the cross-examination. The It is the examination of a witness who has finished
absence of the witness is not enough to his/her examination-in-chief, cross-examination,
warrant striking out his testimony for failure to and re-direct examination, by the counsel who
appear for further cross-examination where the cross-examined.
witness has already been sufficiently cross-
examined, and the matter on which the cross- Scope of Re-cross Examination
examination is sought is not in controversy. On matters stated in the re-direct examination.
(People v Seneris, G.R. No. L-48883, 1980) However, other matters may be allowed by the
2. Witness not cross-examined – If the witness court in its discretion.
was not cross-examined because of causes
attributable to the cross examining party and
the witness had always made himself available
for cross examination, the direct testimony of
witness shall remain in the record and cannot (v) RECALLING WITNESS
be ordered stricken off because the cross
examiner is deemed to have waived the right to
cross-examine witness. (De la Paz v
Intermediate Appellate Court, G.R. No. 71537,
1987) After the examination of a witness by both sides has
been concluded, the witness cannot be recalled
without leave of the court.

The court will grant or withhold leave in its

(iii) RE-DIRECT EXAMINATION discretion, as the interests of justice may require.

Purpose

RE-DIRECT EXAMINATION
It is the further examination by a party of his/her
own witness after cross-examination.
Scope of Re-direct Examination
On matters dealt with during the cross-examination.
Other matters may be allowed by the court in its
discretion.
1. For the witness to correct or explain
his/her prior testimony.
2. Witnesses may also be recalled after they
have left the stand to lay the proper foundation
for impeachment but this is within the discretion
of the court.

Purpose
1. To allow the witness-in-chief to explain or
supplement his answers given during the c. LEADING AND MISLEADING QUESTIONS
cross-examination.
2. The counsel may elicit testimony to correct or LEADING QUESTION
repeal any wrong impression or inferences that
may have been created in the cross-
examination.

608
It is a question which suggests to the witness the Forms and Nature of Questions that May be
answer which the examining party desires. Propounded to Witnesses:
It is not allowed, EXCEPT:

1. Must not be indefinite or uncertain.

1. On cross-examination; 2. Must be relevant.
2. On preliminary matters; 3. Must not be argumentative.
3. When there is difficulty in getting direct and 4. Must not call for conclusion of law.
intelligible answers from a witness who is 5. Must not call for opinion or hearsay
ignorant, or a child of tender years, or is of evidence.
feeble mind, or a deaf-mute; 6. Must not call for opinion.
4. Of an unwilling or hostile witness; or 7. Must not call for an illegal answer.
5. Of a witness who is an adverse party or an 8. Must not call for self-incriminating
officer, director, or managing agent of a public testimony.
or private corporation or of a partnership or 9. Must not be leading.
association which is an adverse party. 10. Must not be misleading.
11. Must not tend to degrade reputation of
witness.
12. Must not be repetitious.

Generally, leading questions are not allowed in

direct examination and should be confined to cross-
examination.
d. METHODS OF IMPEACHMENT OF
Rule on Questions in the Alternative ADVERSE PARTY'S WITNESS

To impeach a witness means to call into question

the veracity of the witness or by showing that the
1. A question in the alternative is not leading witness is unworthy of belief.
where it is not so framed as to indicate which
answer is desired. Destroying credibility is vital because it is linked with
2. If so framed as to suggest the answer, the a witness ability and willingness to tell the truth.
question is improper as leading and the mere (Riano, Evidence, 373)
use of words “whether or not” does not
necessarily prevent it from being leading. The Adverse Party’s Witness May be Impeached
By:
1. Contradictory evidence;
2. Evidence that the witness’ general reputation
for truth, honesty, or integrity is bad; or
MISLEADING QUESTION 3. Evidence that he/she has made at other times
It is one which assumes as true a fact not yet statements inconsistent with his/her present
testified to by the witness, or contrary to that which testimony. (PRIOR INCONSISTENT
he has previously stated. It is not allowed. STATEMENTS)

Test Whether Question Leading or Misleading General Rule: The adverse party’s witness cannot
The test whether a question is leading or not is the be impeached by evidence of particular wrongful
suggestiveness of its substance and not the form of acts.
the question. If the question suggests the answer
desired by putting words into the mouth of the
witness, it is leading.

For example, a lawyer for the other party

cannot ask a witness the following

609
 4. Impeachment by showing social
connections, occupation and manner of living.
5. Impeachment by showing interest.
question on cross-examination: “Isn’t it a 6. Impeachment by showing intent or motive.
fact that you shoplifted one week ago?”

Party may not impeach his own witness.

General Rule: A party producing a witness is not

Exception: It may be shown by the examination of allowed to impeach his/her credibility.
the witness or the record of the judgment that the Exceptions:
adverse party’s witness has been convicted of an
offense.

1. If he/she is an adverse party.

2. If he/she has become an unwilling or
hostile witness.

PRIOR
CONTRADICTORY
INCONSISTENT ADVERSE PARTY
EVIDENCE
STATEMENTS
In order to be considered an adverse party, the
witness must be adverse to the party calling him/her
and be actively seeking a recovery against, or
opposing a recovery by, such party, or a person for
whose immediate benefit the action was brought or
defended.
Prior inconsistent
Contradictory evidence A Witness Will be Considered Hostile or
statements refer to
refers to other testimony Unwilling Upon:
statements, oral or
of the same witness, or
documentary, made
other evidence
by the witness sought
presented by him in the
to be impeached on
same case, but not the 1. Declaration by the court;
occassions other than
testimony of another 2. Adequate showing of his/her adverse
the trial in which he is
witness. (Regalado, interest, unjustified reluctance to testify, or
testifying. (Regalado,
Evidence, 851) his/her having misled the party into calling
Evidence, 851)
him/her to the witness stand.

HOSTILE WITNESS

Other Modes of Impeachment: A hostile witness is one who manifests so much

hostility or prejudice under examination-in-chief that
the party who has called him/her is allowed to
cross-examine him/her, that is to treat him/her as
1. Impeachment by showing improbability or though he/she had been called by the opposite
unreasonableness of testimony. party.
2. Impeachment by showing bias, prejudice,
and hostility. Methods of Impeachment of One’s Own Witness
3. Impeachment by prior inconsistent acts or
conduct.

610
1. Evidence contrary to his testimony.
2. Evidence of prior inconsistent statements.

Evidence of the good character of a witness is not

admissible until such character has been
impeached.
e. HOW WITNESS IMPEACHED BY EVIDENCE
OF INCONSISTENT STATEMENTS Reason: The law presumes every person to be
reputedly truthful till evidence shall have been
General Rule: A witness cannot be impeached by produced to the contrary.
proof of inconsistent statements until the proper
foundation or predicate has been laid. g. JUDICIAL AFFIDAVIT RULE
Exception: Failure to lay a proper foundation may
be waived by the failure of the adverse party to
object in proper form to the instruction of the alleged
inconsistent statement. (AM No. 12-8-8-SC)

A Witness is Impeached by Prior Inconsistent

Statements by “Laying the Predicate”:

1. By relating to him such statements with the

circumstances of the times and places and the See Part XI of this 2015 Remedial Law Summer
persons present. Reviewer for a more detailed discussion on the
2. By asking him whether he made such Judicial Affidavit Rule.
statements
3. By giving him a chance to explain the Judicial Affidavit Rule
inconsistency. The rule modifies the existing practice in the
4. If the statements be in writing, they must conduct of a trial and reception of evidence by
be shown to the witness before any question is doing away with the usual oral examination of a
put to him concerning them. (Rule 132, Sec. witness in a direct examination. (Riano, Evidence,
13) 418) The judicial affidavits of witnesses take the
place of such witnesses' direct testimonies. (Judicial
Affidavit Rule, Sec 2(a)(1))

Unless the witness is given the opportunity to

explain the discrepancies, the impeachment is
incomplete.

The “Laying the Predicate” Rule Does NOT

Apply:
1. If the prior inconsistent statement appears in a SEC 35, RULE 132 JUDICIAL AFFIDAVIT
deposition of the adverse party, and not a mere RULE
witness, as such statements are in the nature of
admissions of said adverse party. (Regalado,
Evidence, 852)
2. Where the previous statements of a witness are
offered as evidence of an admission, and not
merely to impeach him. (Regalado, Evidence, 852
citing Juan Ysmael & Co., Inc, v. Hashim, et. al., Allows the offer to be Allows the offer to be
G.R. No. L-26247) made in writing made orally

f. EVIDENCE OF GOOD CHARACTER OF

WITNESS

611

5. ADMISSIONS AND CONFESSIONS
a. RES INTER ALIOS ACTA RULE
This rule refers to the maxim, “res inter alios acta
alteri nocere non debet,” which means, “A thing
done among some persons ought not to do harm to
another.” (Regalado 2008 ed.)
The res inter alios acta rule ordains that the rights of
a party cannot be prejudiced by an act, declaration,
or omission of another. The reason for the rule is
that, on a principle of good faith and mutual
convenience, a man’s own acts are binding upon
himself, and are evidence against him. It would not
only be rightly inconvenient, but also manifestly
unjust, that a man should be bound by the acts of
mere unauthorized strangers; and that if a party
ought not to be bound by the acts of strangers,
neither ought their acts or conduct be used as
evidence against him. (People v. Raquel, G.R. No.
119005, 1996)
As a general rule, the extrajudicial declaration of an
accused, although deliberately made, is not
admissible and does not have probative value
against his co-accused. It is merely hearsay
evidence as far as the other accused are
concerned. (People v. Alegre, 94 Phil. 109, G.R.
No. L-30423, 1979)
The rights of an accused cannot be prejudiced by
the extra-judicial declarations of another person.
(People v. Raquel, 265 SCRA 248, G.R. No.
119006, 1996)
EXCEPTION to the Res Inter Alios Acta
Rule:
Statements made by an employee against
his employer are admissible against the
latter, where the statements while in
employ and where they concerned a
matter within the scope of his employment.
(Mahlandt v. Wild Canid Survival &
Research Center, 588 F.2d 626 (8th Cir.
1978)
b. ADMISSION BY A PARTY
Section 26, Rule 130 of the Rules of Court
Rule on Admissions by a party
The act, declaration, or omission of a party as to a
relevant fact may be given in evidence against him.
For example, after a murder, Accused goes to his
neighbor and tells her, “Nakapatay ako”. His
neighbor can testify on this fact in a murder case
against Accused; the admission may be given in
evidence against Accused.
The admissions of the president of a company are
binding on the company under the rule that
admissions of liability by a party may be given
against it. (Keller & Co. v. COB, G.R. No. L-68097,
(1986)
Reason:
Based on presumption that no man could declare
anything against himself unless such declarations
were true.
ADMISSION: is a voluntary acknowledgement in
express terms or by implication by a party interest
or by another by whose statement he is legally
bound, against his interest, of the existence or truth
of a fact in dispute material to the issue. (In other
words, it is an acknowledgement of fact/s opposite
to the fact/s raised or positions taken in court.)
Two (2) Types of Admissions:
1. JUDICIAL ADMISSION - one made in a judicial
proceeding under consideration.
612
2. EXTRAJUDICIAL ADMISSION - one made out
of court or in a judicial proceeding other than the Reason for exclusion of self-serving
one under consideration. declarations
1. The inherent untrustworthiness of the
Two (2) Ways to Introduce an Admission as declarations.
Evidence: 2. Allowance would open the door to fraud and
1. As INDEPENDENT EVIDENCE – no fabrication of testimony.
foundation is necessary. 3. If testified by one other than the defendant,
2. As IMPEACHING EVIDENCE – a proper such declarations would be hearsay.
foundation must be laid.
OFFER OF COMPROMISE NOT ADMISSIBLE
SELF-SERVING DECLARATIONS
Unsworn statements made by the declarant out of Rule on Compromises
court and which are favorable to his interests.
1. In CIVIL CASES:
For example, Accused tells neighbor that: An offer of compromise is not an admission of any
“Nakapatay yung barkada namin pero wala akong liability and is not admissible in evidence against
kinalaman.” Later on, Accused cannot have his the offeror.
neighbor testify in court and say that Accused went
to him and said that he had nothing to do with the 2. In CRIMINAL CASES:
killing. Accused’s statement to the neighbor is self-
serving because it was given out of court and it General Rule: an offer of compromise by the
served his interest. accused may be received in evidence as an implied
admission of guilt.
Accused may, however, take the stand and explain Exceptions:
why he has nothing to do with the killing.

General Rule: Self-serving declarations are not

admissible. 1. Those involving quasi-offenses (criminal
negligence); or
Exceptions: 2. Those allowed by law to be compromised.

1. Diaries, if it is against interest, or if it is in

the nature of books of accounts. Letters
prepared not in anticipation of litigation are
not considered self-serving declarations.
2. Part of the res gestae, including
spontaneous statements and verbal acts.
3. When in the form of complaint and
exclamations of pain and suffering.
4. When part of a confession offered by the
prosecution. (such as those favorable to the
accused, e.g. I shot him because he was
going to stab me.)
5. When the credibility of a party has been
assailed on the ground that his testimony is
a recent fabrication.
6. When offered by the opponent.
7. When offered without objection or there is
waiver.
The following are NOT admissible in evidence
against the accused who made the plea or offer:
1. A plea of guilty later withdrawn, or
2. An unaccepted offer of a plea of guilty to lesser
offense.
Rule on Offer of Payment of Expenses
occasioned by injury (Good Samaritan Doctrine)
An offer to pay or the payment of medical, hospital
or other expenses occasioned by an injury is not
admissible in evidence as proof of civil or criminal
liability for the injury.
c. ADMISSION BY A THIRD PARTY
Rule on Admissions by a third party (Res Inter
Alios Acta)

613
The rights of a party cannot be prejudiced by an act,
declaration, or omission of another, except as
hereinafter provided.
For example, after a murder, accused goes to his
neighbor and tells her, “Napatay namin ni Jose si
Juan”. His neighbor can testify on this fact in a
murder case against Accused; the admission may
be given in evidence only against Accused. It is not
admissible against Jose. (Except if there’s
conspiracy between the accused and Jose)
BUT if accused takes the stand and explains the
participation of Jose, the testimony is admissible
against Jose.
NOTE: Section 28, Rule 130 refers to the first
branch of the res inter alios acta rule. The second
branch can be found in Section 34, Rule 130—
similar acts as evidence. (Regalado 2008 ed., 758)
d. ADMISSION BY A CO-PARTNER OR AGENT
The act or declaration of a partner or agent of
the party may be given in evidence against his
co-partner or agent provided that the following
requisites are present:
1. That the partnership or agency be previously
proven by evidence other than the admission
itself.
2. The acts or declarations refer to a matter within
the scope of his authority.
3. The acts or declarations were made during the
existence of the partnership or agency.
Reason: Identity of interests between the co-
partners or agents.
The same rule applies to the act or declaration of a
joint owner, joint debtor, or other person jointly
interested with the party.
e. ADMISSION BY A CONSPIRATOR
The act or declaration of a conspirator may be
given in evidence against the co-conspirator
provided the following requisites are present:
1. That the conspiracy be first proved by evidence
other than the admission itself.
2. That the admission relates to the common
object.
3. That it has been made while the declarant was
engaged in carrying out the conspiracy.
Reason: Identity of interests for the commission of
a crime.
Scope: This rule applies only to extrajudicial acts or
declaration but NOT to testimony given on the stand
at the trial where the defendant has the opportunity
to cross-examine the declarant. (People v. Serrano,
G.R. No. L-7973, 1959)
If the declaration is made after the act designed is
fully accomplished and after the object of the
conspiracy has been either attained or finally
defeated, the declaration will be admissible only
against the person who made it. (People v. Yatco,
97 Phil. 941, G.R. No. L-9181, 1955)
In the absence of any other evidence to prove the
existence of an alleged conspiracy, extra-judicial
statements and admissions of an individual cannot
be taken as evidence against an alleged co-
conspirator. An extrajudicial statement made by a
co-accused is, by itself, insufficient to convict an
accused of a crime charged because said
statement is inadmissible since they were made not
during the existence of the conspiracy but after the
said conspiracy had already ceased and when the
co-accused was already in the custody of the
police. (People vs. Cabrera, 57 SCRA 715, G.R.
No. L-37398, 1974)
The admissibility of a confession by one accused
against the other in the same case, must relate to
statements made by one conspirator during the
pendency of the unlawful enterprise (or during its
existence) and in furtherance of its objects, and not
to a confession made, as in this case, long after the
conspiracy had been brought to an end. (People v.
Chaw Yaw Shun, 23 SCRA 127, 1968)
The testimony of a witness must be considered and
calibrated in its entirety and not by truncated
portions thereof or isolated passages therein. It is
perfectly reasonable to believe the testimony of a
witness with respect to some facts and disbelieve it
with respect to other facts, as there is hardly a
witness who can perfectly remember the details of a
crime. (People v. Bulan, G.R. No. 143404, 2005)
f. ADMISSION BY PRIVIES
Where one derives title to property from another,
the act, declaration, or omission of the latter, while
614
holding the title, in relation to the property, is
evidence against the former.
PRIVIES: denotes not only the idea of succession
in right of heirship or testamentary legacy but also
succession by virtue of acts inter vivos as by
assignment, subrogation or purchase – in fact any
act whereby the successor is substituted in the
place of the predecessor in interest. (Alpuerto v.
Pastor, 38 Phil. 785, G.R. No. L-12794, 1918)
General Rule: In order for an admission of a former
owner of property to be admissible against his
successor in title, it must have been made at the
time when the title was in declarant.
Exception: The declaration made subsequent to
the transfer of the property shall be admissible:
1. Where the declaration was made in the
presence of the transferee and he
acquiesces in the statements or asserts no
rights where he ought to speak.
2. Where there has been prima facie case of
fraud established.
3. Where the evidence establishes a
continuing conspiracy to defraud which
conspiracy exists between the vendor and
the vendee.
The word “privies” does not only denote testate or
intestate succession but also succession by virtue
of acts inter vivos, as by assignment, subrogation or
purchase and in fact any act whereby the successor
is substituted in the place of the predecessor in
interest. The purchaser at an execution sale is a
privy of the execution debtor. (Alpuerto v. Pastor, 38
Phil. 785, G.R. No. L-12794, 1918)
The act of a predecessor to a land is not binding on
the successor if the acts/declarations made by the
predecessor acknowledging ownership or offering
to purchase the property from a third party were
made before the predecessor held title to the land.
(City of Manila v. Del Rosario, 5 Phil. 227, G.R. No.
1284, 1905)
The testimony and the public document are
declarations adverse to the interest of the Costelos
which is admissible in evidence. The previous
recognition by a party in physical possession of the
property in dispute of the ownership in another
constitutes a declaration against the interest of the
former and may be received in evidence not only
against such party who made the declaration or his
successors in interest but also against 3rd persons.
(Viacrusis v. Court of Appeals, 44 SCRA 176, G.R.
No. L-29831, 1972)
g. ADMISSION BY SILENCE
An admission by silence or an ADOPTIVE
ADMISSION may be given in evidence against the
party who does or says nothing where the
statement would naturally call for a response or
reaction.
Reason:
Based on common experience and natural human
behavior.
Applicability to Criminal Cases
The rule allowing silence of a person to be taken as
an implied admission of the truth of the statements
uttered in his presence is applicable in criminal
cases. (People v. Paragsa, 84 SCRA 105, G.R. No.
L-44060, 1978)
But Before the Silence of a Party can be Taken
as an Admission of What is Said, it Must Appear
that:
1. He heard and understood the statement;
2. He was at liberty to interpose a denial;
3. The statement was in respect to some matter
affecting his rights or in which he was then
interested, and calling, naturally, for an answer;
4. The facts were within his knowledge; and
5. The fact admitted or the inference to be drawn
from his silence would be material to the issue.
(People v. Paragsa, G.R. No. L-44060, 1978)
Silence of an Accused Under Custodial
Investigation
The silence of an accused under custody, or his
failure to deny statements by another implicating
him in a crime, especially when such accused is not
asked to comment or reply to such implications or
accusations, cannot be considered as a tacit
confession of his participation in the commission of
the crime. (People v. Alegre, G.R. No. L-30423,
1979)
Comment to the jury by a prosecutor in a state
criminal trial upon a defendant's failure to testify as
to the matters which he can reasonably be
expected to deny or explain because of facts within
his knowledge or by the court that the defendant's
615
silence under those circumstances evidences guilt May be made by third Can be made only by
violates the Self-Incrimination Clause of the Fifth persons and, in certain the party himself and,
Amendment of the Federal Constitution. (Griffin v. cases, are admissible in some instances, are
California, 380 U.S. 853, 1965) against a party admissible against his
co-accused
h. CONFESSIONS

CONFESSION – a categorical acknowledgment of

guilt made by an accused in a criminal case,
without any exculpatory statement or explanation.
(Regalado 2008 ed.)
A confession is an acknowledgement in express
terms, by a party in a criminal case, of his guilt of
the crime charged, while an admission is a
statement by the accused, direct or implied, of facts
pertinent to the issue and tending, in connection
with proof of other facts, to prove his guilt. (People
v. Maqueda, 242 SCRA 565, G.R. No. 112983,
1995)
In a confession, there is an acknowledgment of
guilt. On the other hand, the term admission is
usually applied in criminal cases to statements of
fact by the accused which do not directly involve an
acknowledgment of his guilt or of the criminal intent
to commit the offense charged. The rights of an
accused are not confined to the period prior to the
filing of an information but are available at that
stage when a person is under investigation for the
commission of an offense. These rights are
available to a person at any time before
arraignment whenever he is investigated for the
commission of an offense. (People v. Maqueda, 242
SCRA 565, G.R. No. 112983, 1995)

A Confession May be
1. JUDICIAL CONFESSION – One made before
a court in which the case is pending and in the
ADMISSION CONFESSION course of legal proceedings therein and, by
itself, can sustain a conviction in capital
offenses.
2. EXTRA-JUDICIAL CONFESSION – One made
in any other place or occasion and cannot
sustain a conviction unless corroborated by
evidence of the corpus delicti.
A statement of fact Involves an
which does not involve acknowledgement of Admissibility of Extra-judicial Confessions
an acknowledgement guilt or liability To be admissible, it is necessary that:
of guilt or liability 1. The confession must involve an express and
categorical acknowledgement of guilt.
2. The facts admitted must be constitutive of a
criminal offense.
3. The confession must have been given
voluntarily.
4. The confession must have been intelligently
May be express or Must be express made, the accused realizing the importance or
tacit legal significance of his act.
5. There must have been no violation of Section
12, Art. III of the 1987 Constitution.

The silence of an accused under custody, or his

failure to deny statements by another implicating
him in a crime, especially when such accused is
neither asked to comment nor reply to such

616

implications or accusations, cannot be considered
as a tacit confession of his participation in the
commission of the crime. Such an inference of
acquiescence drawn from his silence or failure to
deny the statement would appear incompatible with
the right of an accused against self-incrimination.
xxx While an accused is in custody, his silence may
not be taken in evidence against him as he has a
right to remain silent his silence when in custody
may not be used as evidence against him,
otherwise, his right of silence would be illusory.
(People v. Alegre, 94 SCRA 109, G.R. No. L-30423,
1979)
Admissions obtained during custodial interrogations
without the benefit of counsel although later
reduced to writing and signed in the presence of
counsel are flawed under the Constitution and as
such cannot be admitted in Court. (People vs.
Compil, 244 SCRA 135, G.R. No. 95028, 1995)
Any confession, including a re-enactment without
admonition of the right to silence and to counsel,
and without counsel chosen by the accused is
inadmissible in evidence. (People v. Yip Wai Ming,
264 SCRA 224, G.R. No. 120959, 1996)
General Rule – The extrajudicial confession of an
accused is binding only upon himself and is not
admissible against his co-accused.
Exceptions:
1. If the co-accused impliedly acquiesced in
or adopted the confession by not
questioning its truthfulness, as where it
was made in his presence and he did not
remonstrate against his being implicated
by it; (waiver)
2. If the co-accused persons voluntarily and
independently executed identical
confessions without conclusions;
Confessions corroborated by other
evidence and without contradiction by the
co-accused who was present
(INTERLOCKING CONFESSIONS)
3. Where the co-accused admitted the facts
stated by the confessant after being
apprised of such confession;
4. If the confession is used only as a
corroborating evidence against the other
co-accused charged a as co-conspirators;
5. Where the confession is used as
circumstantial evidence to show the
probability of participation by the co-
conspirator;
6. Where the co-conspirator’s extrajudicial
confession is corroborated by other
evidence of record.
The fact that all accused are foreign nationals does
not preclude application of the “exclusionary rule”
because the constitutional guarantees embodied in
the Bill of Rights are given and extend to all
persons, both aliens and citizens. The accused
cannot be made to affix their signatures on
evidence without complying with the Bill of Rights.
By affixing their signatures on the evidence, the
accused are in effect made to tacitly admit the crime
charged for, in this case, mere possession of
prohibited drugs is a crime. These signatures
amount to uncounseled extra-judicial confession
prohibited by the Bill of Rights and therefore
inadmissible as evidence. (People v. Wong Chuen
Ming, 256 SCRA 182,G.R. Nos. 112801-11 1996)
The Confrontation Clause does not bar admission
into evidence of every relevant extrajudicial
statement by a non-testifying declarant simply
because it in some way incriminates the defendant.
And an instruction directing the jury to consider a
codefendant's extrajudicial statement only against
its source is generally sufficient to avoid offending
the implicated defendant's confrontation right. The
court may admit into evidence interlocking
confessions of co-defendants/accused even without
giving the accused an opportunity to cross-examine
his co-defendant. The rule however is different
when a co-defendant does not confess. In such
cases, the co-defendant must be given an
opportunity to cross- examine the confessant if and
when such person takes the witness stand. (Parker
v. Randolph, 442 U.S. 62, 1979)
9. SIMILAR ACTS AS EVIDENCE
Previous conduct as evidence
General Rule – Evidence that one did or did not do
a certain thing at one time is not admissible to
prove that he did or did not do the same or similar
thing at another time. (Rule 130, Section 34)
For example, Accused is charged with robbing a
bank in June. The prosecution cannot present
evidence to show that the Accused was seen
robbing a bank in January to prove that he robbed
617
the bank in June. The prosecution cannot use the
bank robbery in January to prove that Accused has
a propensity to rob banks.
Exceptions: - Similar acts may be received as
evidence to prove. SIPPS-HCU
1. A specific intent or knowledge
2. Identity
3. Plan
4. System
5. Scheme
6. Habit
7. Custom or usage
8. and the like.
The prosecution may, however, introduce the
robbery in January to prove the robbery in June to
establish a modus operandi: that in both robberies,
the robbers used explosives to gain entry into the
bank, that the robbers threw tear gas while wearing
gas masks; and that the robbers struck at the close
of bank hours.
NOTE:
Rule 130, Sec. 34 is the second branch of the res
inter alios acta rule and applies to both civil and
criminal cases. (Regalado 2008 ed.)
Unaccepted offer
An offer in writing to pay a particular sum of money
or to deliver a written instrument or specific
personal property is, if rejected without valid cause,
equivalent to the actual production and tender of the
money, instrument, or property. (Rule 130, Section
35)
6. HEARSAY RULE
a. MEANING OF HEARSAY
A witness can testify only to those facts which he
knows of his personal knowledge; that is, which are
derived from his own perception, except as
otherwise provided in these rules. (Rule 130,
Section 36)
Any evidence, whether oral or documentary, is
hearsay if its probative value is not based on the
personal knowledge of the witness, but on the
knowledge of some other person not on the witness
stand. (Regalado 2008 ed.)
Form of Hearsay Evidence
It may be verbal or in writing.
Rule on Hearsay Evidence
A witness can testify only to those facts which he
knows of his personal knowledge; that is, which are
derived from his own perception. Otherwise, such
testimony is inadmissible.
Doctrine of Independently Relevant Statements
Where, regardless of the truth or falsity of a
statement, the fact that it has been made is
relevant, the hearsay rule does not apply.
A witness may testify to the statements made by a
person if, for instance, the fact that such statements
were made by the latter would indicate the latter’s
mental state or physical condition. The ban on
hearsay evidence does not cover independently
relevant statements, which consist of statements
that are independently relevant of the truth asserted
therein. They belong to two classes: 1. Those
statements which are the very facts in issue, 2.
Those statements which are circumstantial
evidence of the facts in issue. The second class
includes the following: Statement of a person
showing his state of mind; Statement of a person
showing his physical condition; Statement of a
person to infer a state of mind of another person;
Statements which may identify the date, place and
person in question; Statements to show a lack of
credibility of a witness. (Estrada v. Desierto, 356
SCRA 108, G.R. Nos. 146710-15, 2001)
Two Classes of Independently Relevant
Statements
1. Those statements which are the very facts in
issue.
2. Those statements which are circumstantial
evidence of the facts in issue.
The Second Class of Independently Relevant
Statements Includes the Following:
1. Statement of a person showing his state of
mind—that is, his mental condition, knowledge,
belief, intention, ill will, and other emotions;
2. Statements of a person which show his
physical condition;
618
3. Statements of a person from which inference
may be made as to the state of mind of another
—that is, knowledge, belief, motive, good or
bad faith, etc. of the latter;
4. Statements which may identify the date, place,
and person in question; and
5. Statements showing the lack of credibility of a
witness.
b. REASON FOR EXCLUSION OF HEARSAY
EVIDENCE
Hearsay evidence is excluded because the party
against whom it is presented is deprived of his right
and opportunity to cross-examine the persons to
whom the statements or writings are attributed.
Consequently, if a party does not object to the
hearsay evidence, the same is admissible, as a
party can waive his right to cross-examine.
(Regalado 2008 ed.)
c. EXCEPTIONS TO THE HEARSAY RULE
General Rule – A witness can testify only to those
facts which he knows of his personal knowledge;
that is, which are derived from his own perception.
Exceptions under Rule 130(C)(6), Sections 37-47)
1. Dying declaration
2. Declaration against interest
3. Act or declaration about pedigree
4. Family reputation or tradition regarding
pedigree
5. Common reputation
6. Part of the res gestae
7. Entries in the course of business
8. Entries in official records
9. Commercial lists and the like
10. Learned treatises
11. Testimony or deposition at a former trial
Note: The list is not exclusive. There
are other exceptions laid down by
special laws and jurisprudence.
General Reasons for the Exceptions
1. Necessity
2. Trustworthiness
(i) DYING DECLARATION
DYING DECLARATION – is a statement made by a
dying person referring to the material facts which
concern the cause and circumstances of his death
and which is uttered under a fixed belief that death
is impending and is certain to follow immediately, or
in a very short time, without an opportunity of
retraction and in the absence of all hopes of
recovery.
Requisites:
1. That death be imminent and that the declarant
be conscious of that fact;
2. That the preliminary facts which bring the
declaration within its scope be made to appear;
3. That the declaration relates to facts or
circumstances pertaining to the fatal injury or
death; and
4. That the declarant would have been competent
to testify had he survived.
Scope: Dying declarations are admissible in both
civil and criminal cases.
Purposes for Admitting Dying Declaration:
1. To identify the accused
2. To show the cause of death
3. To show the circumstances under which the
assault was made upon him.
The declaration of the deceased is not admissible
as an ante mortem declaration since the deceased
was in doubt as to whether he would die or not. The
declaration fails to show that the deceased believed
himself in extremis, "at the point of death when
every hope of recovery is extinct, which is the sole
basis for admitting this kind of declarations as an
exception to the hearsay rule." It may be admitted,
however, as part of the res gestae since the
statement was made immediately after the incident
and the deceased had no sufficient time to concoct
619
a charge against the accused. (People v. Laquinon,
135 SCRA 91, G.R. No. L-45470, 1985) Admission and Declaration Against Interest
Distinguished
The admission of dying declarations has always
been strictly limited to criminal prosecutions for
homicide or murder as evidence of the cause and
surrounding circumstances of death. That death did
not ensue till three days after the declaration was
made will not alter its probative force since it is not
indispensable that a declarant expires immediately
thereafter. It is the belief in impending death and not ADMISSION DECLARATION
the rapid succession of death, in point of fact, that AGAINST INTEREST
renders the dying declaration admissible. (People v.
Sabio, 102 SCRA 218, G.R. No. L-26193, 1981)

(ii) DECLARATION AGAINST INTEREST Need not necessarily Must have been made
be, though will greatly against the proprietary
enhance probative or pecuniary interest of
weight if made, against the parties.
the interest of the
The declaration made by a person deceased, or declarant.
unable to testify, against the interest of the
declarant, if the fact asserted in the declaration was
at the time it was made so far contrary to
declarant’s own interest, that a reasonable man in
his position would not have made the declaration
unless he believed it to be true, may be received in
evidence against himself or his successors in Made by the party Must have been made
interest and against third persons. himself and is a by a person who is
primary evidence and either deceased or
Requisites: competent though he unable to testify.
1. Declarant must not be available to testify. be present in court and
2. The declaration must concern a fact cognizable ready to testify.
by the declarant.
3. The circumstances must render it improbable
that a motive to falsify existed.

Scope: The declaration against interest includes all

kinds of interests such as pecuniary, proprietary, or
penal interests. Can be made at any Must have been made
time. ante litem motam
Kinds of Declarations Against Interests: (before the suit is
1. DECLARATION AGAINST PECUNIARY brought).
INTERESTS – those which may bar in whole or
in part the declarant’s money claim, or which
may give rise to a monetary claim against him.
2. DECLARATION AGAINST PROPRIETARY
INTERESTS – those which are at variance with
the declarant’s property rights.
3. DECLARATION AGAINST PENAL
INTERESTS – those which put the declarant at
the risk of prosecution.

620
Declaration Against Interest and Self-serving PEDIGREE – history of family descent which is
Declaration Distinguished transmitted from one generation to another by both
oral and written declarations and traditions.

The word “pedigree” includes relationship, family

genealogy, birth, marriage, death, the dates when
and the places where these facts occurred, and the
names of the relatives. It embraces also facts of
family history intimately connected with pedigree.
DECLARATION SELF-SERVING
AGAINST DECLARATION Reasons for Admissibility
INTEREST Declarations in regard to pedigree, although
hearsay, are admitted on the principle that they are
natural expressions of persons who must know the
truth. Pedigree testimony is admitted because it is
the best that the nature of the case admits and
because greater evil might arise from the rejection
of such proof than from its admission. (People v.
Admissible in Not admissible in Alegado, 201 SCRA 37, G.R. No. 93030-31, 1991)
evidence evidence as proof of the
notwithstanding its facts asserted since its Requisites:
hearsay character introduction in evidence 1. Declarant is dead or unable to testify;
would open the door to 2. Necessity that pedigree be in issue;
fraud and perjury 3. The Declarant must be a relative of the person
whose pedigree is in question;
4. The declaration must be made before the
controversy occurred; and
5. The relationship between the declarant and the
person whose pedigree is in question must be
shown by evidence other than such act or
The person making Admissible only if declaration.
the declaration need declarant has died,
not be dead, insane becomes insane, or for NOTE:
or unable to testify some other reason is not Where the subject of the declaration is the
available as a witness declarant’s own relationship to another person,
there is no need to prove the relationship.

(iv) FAMILY REPUTATION OR TRADITION

REGARDING PEDIGREE

(iii) ACT OR DECLARATION ABOUT

PEDIGREE By family reputation or tradition regarding
pedigree is meant such declarations and
statements as have come down from generation to
generation from deceased relatives in such a way
that even though it cannot be said or determined
which of the deceased relatives originally made
them, yet it appears that such declarations and

621

statements were made as family history, ante litem
motam, by a deceased person connected by blood
or marriage with the person whose pedigree is to be
established.
Requisites:
1. There is controversy in respect to the pedigree
of any member of a family;
2. The reputation or tradition of the pedigree of
the person, concerned existed previous to the
controversy; and
3. The witness testifying to the reputation or
tradition regarding the pedigree of the person
concerned must be a member of the family of
said person either by consanguinity or affinity.
(v) COMMON REPUTATION
Common reputation existing previous to the
controversy, respecting facts of public or general
interest more than 30 years old, or respecting
marriage or moral character, may be given in
evidence. Monuments and inscriptions in public
places may be received as evidence of common
reputation.
Testimony does not constitute common reputation
unless such is equivalent to universal reputation.
(City of Manila v. Del Rosario, 5 Phil. 227, G.R. No.
1284, 1905)
What may be Established by Common
Reputation:
1. Facts of public or general interest more than 30
years old.
2. Marriage and related facts.
3. Individual moral character.
Requisites for Admissibility of Common
Reputation Respecting Facts of Public or
General Interest:
1. The facts must be of public or general interest;
2. The common reputation must have been
ancient, i.e., more than thirty (30) years old;
3. The reputation must have been formed among
a class of persons who were in a position to
have some sources of information and to
contribute intelligently to the formation of the
opinion; and
4. The reputation must have been existing
previous to the controversy.
Requisites for Admissibility of Common
Reputation Respecting Marriage:
1. The common reputation must have been
formed previous to the controversy; and
2. The reputation must have been formed among
a class of persons who were in a position to
have some sources of information and to
contribute intelligently to the formation of the
opinion.
Requisites for Admissibility of Common
Reputation Respecting Moral Character:
1. That it is the reputation in the place where the
person in question is best known; and
2. That it was formed previous to the controversy.
Reputation and Character Distinguished
1. Character – refers to the inherent qualities of a
person. It means that which a person really is.
2. Reputation – applies to the opinion which others
may have formed and expressed of his character. It
means that which a person is reputed to be.
(vi) PART OF THE RES GESTAE
RES GESTAE is from the Latin meaning “things
done”. There are two types of res gestae
utterances:
1. Spontaneous Statements - statements made
by a person while a startling occurrence is taking
place or immediately prior or subsequent thereto
with respect to the circumstances thereof. The
spontaneous or excited utterance is part of the
“things done”, the startling occurrence.
Example: A heard a gunshot and saw B holding a
gun pointed at C who was slumped on the ground.
C shouted, “Please don't kill me.” A’s testimony
regarding the statement made by C may be
deemed part of the res gestae.
2. Verbal Acts – utterances which accompany
some equivocal act or conduct to which it is desired
to give a legal effect.
622
Example: A saw B give C a stack of 1000 peso It is the event itself A sense of impending
bills. C then says to B that he promises to pay B which is speaking death takes the place of
within the week. A’s testimony regarding C’s through the witness an oath and the law
statement may be deemed part of the res gestae. regards the declarant
as testifying
Rationale:
Statements made instinctively at the time of some
startling event or incident without the opportunity for
formulation of statements favorable to one’s own
cause cast important light upon the matter in issue
and is presumed truthful. This is the first type of res
gestae statement. The event is “speaking through” It may precede, Confined to matters
the witness and not the witness talking about the accompany or follow surrounding or
event. the events occurring occurring after the
as a part of the homicidal act
Requisites for Admissibility of Spontaneous principal act
Statements:
1. There must be a startling occurrence;
2. The statement must relate to the circumstances
of the startling occurrence; and
3. The statement must be spontaneous.

It is important to stress that the statement must not

only be spontaneous. It must also be made at a
time when there was no opportunity for the person
to concoct or develop his own story. (People v.
Lungayan, 162 SCRA 100, G.R. No. L-64556, (vii) ENTRIES IN THE COURSE OF
1988) BUSINESS

Requisites for Admissibility of Verbal Acts

1. Act or occurrence characterized must be
equivocal;
2. Verbal acts must characterize or explain the Requisites:
equivocal act; 1. Entries must have been made at or near the
3. Equivocal act must be relevant to the issue; time of the transaction to which they refer;
and 2. Entrant must have been in a position to know
4. Verbal acts must be contemporaneous with the facts stated in the entries;
equivocal act. 3. Entries must have been made by entrant in his
professional capacity or in the performance of
Res Gestae and Dying Declaration his duty;
Distinguished 4. Entries were made in the ordinary or regular
course of business or duties; and
5. Entrant must be deceased or unable to testify.

Business Records Exception to Hearsay Rule

under the Rules on Evidence and the Business
Records Exception under the Rules on
Electronic Evidence Distinguished
RES GESTAE DYING DECLARATION

623
 UNDER THE RULES UNDER RULES ON appearing in court in order that public business be
OF EVIDENCE ELECTRONIC not interrupted.
EVIDENCE

(ix) COMMERCIAL LISTS AND THE LIKE

The person who made The person who

the entry must be dead made the entry need
or unable to testify not be dead or Evidence of statements of matters of interest to
unable to testify persons engaged in an occupation contained in a
list, register, periodical, or other published
compilation is admissible as tending to prove the
truth of any relevant matter so stated if that
compilation is published for use by persons
engaged in that occupation and is generally used
and relied upon by them therein.
The entrant/custodian Personal knowledge
must have personal is not required Examples:
knowledge of the facts 1. Trade journals
stated in the entries 2. Table of mortality compiled by life insurance
companies
3. Abstracts of title compiled by reputable title
examining institutions or individuals
4. Business directories

NOTE:
A preliminary foundation must first be laid for such
evidence showing that such publications have been
regularly prepared by a person in touch with the
market and that they are generally regarded as
(viii) ENTRIES IN OFFICIAL RECORDS trustworthy and relied upon.

Requisites: (x) LEARNED TREATIES

1. That the entry was made by a public officer, or
by another person, specially enjoined by law to
do so;
2. That it was made by the public officer in the
performance of his duties, or by such other
person in the performance of a duty specially
enjoined by law; and
3. That the public officer or other person had
sufficient knowledge of the facts stated by him,
which must have been acquired by him
personally or through official information.
(Africa v. Caltex, 16 SCRA 448, G.R. No. L-
12986, 1966)
Proof of Unavailability of Entrant Unnecessary
It is not necessary to show that the person making
the entry is unavailable for he is excused from
A published treatise, periodical or pamphlet on a
subject of history, law, science, or art is admissible
as tending to prove the truth of a matter stated
therein if the court takes judicial notice, or a witness
expert in the subject testifies, that the writer of the
statement in the treatise, periodical or pamphlet is
recognized in his profession or calling as expert in
the subject.
Learned Treatises are Admissible Only if:
1. The court takes judicial notice that the writer is
recognized in his profession as expert in the
subject; or

624
2. A witness who is an expert on the subject
testifies that the writer of the statement is
recognized in his profession as expert in the
subject.
EXPERT
A person who is so qualified either by actual
experience or by careful study as to enable him to
form a definite opinion of his own respecting any
(xi) TESTIMONY OR DEPOSITION AT A division of science, art, or trade about which
FORMER TRIAL persons having no particular training are incapable
of forming accurate opinions or of deducing correct
conclusions.

Requisites:
1. The witness whose testimony is offered in
evidence is dead or unable to testify;
2. Identity of parties;
3. Identity of issues; and
4. Opportunity of cross-examination of witness.
EXPERT EVIDENCE
It is the testimony of persons who are particularly
killed, or experienced in a particular art, science,
trade, business, profession, or vocation, a thorough
knowledge of which is not possessed b man in
general, in regard to matters connected therewith.

Actual cross-examination of the witness in the Rules on Examination of Expert Witness

former trial is not a prerequisite. It is enough if
there was an opportunity to cross-examine.
7. OPINION RULE
OPINION EVIDENCE
It is the statement by the witness of an inference as
to the existence or nonexistence of a fact in issue
based upon other facts presented directly to the
senses of the witness.
General rule: The opinion of a witness is not
admissible.
Exceptions:
1. If opinion based on facts known personally
– the expert witness must first state the facts
before giving an opinion on the facts.
2. If opinion based on facts of which expert
has no personal knowledge – the facts
should be given to the expert hypothetically,
that is, they must assume facts upon which his
opinion is desired.
Scientific study and training are not always
essential to the competency of a witness as an
expert. A witness may be competent to testify as
an expert although his knowledge was acquired
through the medium of practical experience rather
than scientific study and research. (Dilag v. Merced,
45 O.G. 5536, 1949)

Probative Value of Expert Testimony

1. Opinion of expert witness (Rule 130, The court is not bound by the opinion of an expert
Section 49) such as a handwriting expert. Expert opinion
2. Opinion of ordinary witness (Rule 130, evidence is to be considered or weighed by the
Section 50) court, like any other testimony, in light of its own
general knowledge and experience upon the
subject of inquiry. (Dizon v Tuazon, G.R. No.
172167, 2008)

2. OPINION OF ORDINARY WITNESSES

The Opinion of a Witness for Which Proper

a. OPINION OF EXPERT WITNESS
The opinion of a witness on a matter requiring
special knowledge, skill, experience or training
which he shown to possess, may be received in
evidence.
Basis is Given, May be received in Evidence
Regarding:
1. The identity of a person about whom he has
adequate knowledge
2. A handwriting with which he has sufficient
familiarity; and
3. The mental sanity of a person with whom he is
sufficiently acquainted.

625
The witness may also testify on his impressions of
the emotion, behavior, condition or appearance of a
person.
Proper Basis or Predicate Must First be
Established
1. Adequate knowledge– if ordinary witness is to
testify as to identity.
2. Sufficient familiarity – if ordinary witness is to
testify as to handwriting.
3. Sufficient acquaintance – if ordinary witness
is to testify as to mental sanity.
An ordinary witness cannot given an opinion as to
the mental sanity of a person based in whole or in
part upon an abstract hypothetical question, but
must base his opinion solely upon his own personal
knowledge, observation, or acquaintance.
General Rule: Character is not admissible in
evidence. (Rule 30, Section 51)
Reason:
The rule is that the character or reputation of a party
is regarded as legally irrelevant in determining a
controversy, so that evidence relating thereto is not
admissible. Ordinarily, if the issues in the case were
allowed to be influenced by evidence of the
character or reputation of the parties, the trial would
be apt to have the aspects of a popularity contest
rather than a factual inquiry into the merits of the
case. After all, the business of the court is to try the
case, and not the man; and a very bad man may
have a righteous cause. (People v Lee, G.R. No.
139070, 2002)
a. CRIMINAL CASES

Criminal Cases (Rule 130, Section 51(a))

1. As to the character of the accused –

8. CHARACTER EVIDENCE
a) The accused may prove his good moral
character, which is pertinent to the moral trait
involved in the offense charged.

For example, the accused in a murder case may

Character
present evidence that he has a reputation for being
The possession by a person of certain qualities of
a peaceful person.
mind or morals, distinguishing him from others.
b) The prosecution may prove his bad moral
Character and Reputation Distinguished
character pertinent to the moral trait involved in the
offense charged in rebuttal.

In rebuttal, the prosecution may present evidence

that the Accused has a reputation for being a
quarrelsome person,

2. As to the Character of the Offended Party

CHARACTER REPUTATION
The good or bad moral character of the offended
party may be proved if it tends to establish in any
reasonable degree the probability or improbability of
the offense charged.

For example, in a murder case, the Accused,

Aggregate of the moral Depends on attributes
invoking self-defense, can present evidence that the
qualities which belong to which others believe
offended party (the victim) was of a quarrelsome
and distinguish an one to possess. (Riano,
disposition.
individual person. Evidence, 491-492)
b. CIVIL CASES

626

Civil Cases (Rule 130, Section 51(b))
Evidence of the moral character of a party in a civil
case is admissible only when pertinent to the issue
of character involved in the case.
General Rule: the moral character of a party to a
civil case is not a proper subject of inquiry.
Exception: in cases where, because of the
nature of the action, the character of a party
becomes a matter in issue.
9. RULE ON EXAMINATION OF A
CHILD WITNESS (A.M. No. 04-07-
SC)
a. APPLICABILITY OF THE RULE (Sec. 1)
Unless otherwise provided, this Rule shall govern
the examination of child witnesses who are:
1. Victims of a crime
2. Accused of a crime, and
3. Witnesses to a crime.
It shall apply in all criminal proceedings and non-
criminal proceedings involving child witnesses.
The Rule on Examination of a Child Witness
governs the examination of child witnesses who are
victims of, accused of, or witnesses to a crime. In
the absence or incapacity of the parents to be the
guardian, Section 5 (a) of said rule provides that the
court may appoint a guardian ad litem to promote
the best interests of the child. (Obedencio v J.
Murillo, 422 SCRA 21, A.M. No. RTJ-03-1753,
2004)
b. MEANING OF “CHILD WITNESS” (Section
2(A))
A child witness is:
1. Any person who at the time of giving testimony
is below the age of 18 years.
2. In child abuse cases, a child includes one who
is over 18 years but is found by the court as
unable to fully take care of himself/herself, or
protect himself/herself from abuse, neglect,
cruelty, exploitation, or discrimination because
of a physical or mental disability or condition.
Note: Observe that whether or not a person is a
child witness is determined as of the time of the
giving of the testimony. (Riano, Evidence, 497)
c. COMPETENCY OF A CHILD WITNESS (Sec.
6)
Presumption of Competency
Every child is presumed qualified to be a witness.
Competency Examination
Notwithstanding the presumption, the court shall
conduct a competency examination of a child, motu
proprio or on motion of a party, when it finds that
substantial doubt exists regarding the ability of the
child to perceive, remember, communicate,
distinguish truth from falsehood, or appreciate the
duty to tell the truth in court.
Who Conducts Competency Examination
Examination of a child as to his/her competence
shall be conducted only by the judge. Counsel for
the parties, however, can submit questions to the
judge that he/she may, in his/her discretion, ask the
child.
The court has the duty of continuously assessing
the competence of the child throughout his
testimony.
Who must Prove Necessity of Competency
Examination
627
A party seeking a competency examination must
present proof of necessity of competency of
examination. The age of the child by itself is not a
sufficient basis for a competency examination.
To rebut the presumption of competence enjoyed
by a child, the burden of proof lies on the party
challenging his/her competence.
Who May Attend Competency Examination
Only the following are allowed to attend a
competency examination:
1. The judge and necessary court personnel;
2. The counsel for the parties;
3. The guardian ad litem;
4. One or more support persons for the child;
and
5. The defendant, unless the court determines
that competence can be fully evaluated in
his/her absence.
Nature of Questions Asked in the Competency
Examination
The questions asked at the competency
examination shall be:
1. Appropriate to the age and developmental level
of the child;
2. Shall not be related to the issues at trial; and
3. Shall focus on the ability of the child to
a. Remember;
b. Communicate;
c. Distinguish between truth and falsehood;
and
d. Appreciate the duty to testify truthfully.
d. EXAMINATION OF A CHILD WITNESS
(Section 8)
Examination Done in Open Court
The examination of a child witness presented in a
hearing of any proceeding shall be done in open
court. Unless the witness is incapacitated to speak
or the question calls for a different mode of answer,
the answers of the witness shall be given orally.
The party who presents a child witness or the
guardian ad litem of such child witness may,
however, move the court to allow the child to testify
in the manner provided in this Rule. (Section 8)
Child witnesses may testify in a narrative form and
leading questions may be allowed by the trial court
in all stages of the examination if the same will
further the interest of justice. Objections to
questions should be couched in a manner so as not
to mislead, confuse, frighten and intimidate the
child. (People v Canete, G.R. No. 491920, 2003)
Mode of questioning. – The court shall exercise
control over the questioning of children so as to (1)
facilitate the ascertainment of the truth, (2) ensure
that questions are stated in a form appropriate to
the developmental level of the child, (3) protect
children from harassment or undue embarrassment,
and (4) avoid waste of time. The court may allow
the child witness to testify in a narrative form.
(People v Canete, G.R. No. 491920, 2003, citing
Section 19)
Corroboration shall not be required of a testimony of
a child. His testimony, if credible by itself, shall be
sufficient to support a finding of fact, conclusion, or
judgment subject to the standard proof required in
criminal and non-criminal cases. (People v Baring,
374 SCRA 696, G.R. No. 137933, 2002, citing
Section 22)
e. LIVE-LINK TV TESTIMONY OF A CHILD
WITNESS (Section 25)
LIVE-LINK TV TESTIMONY
It is when the testimony of the child is taken in a
room outside the courtroom and be televised to the
courtroom by live-link television.
Who May Apply
1. Prosecutor;
2. Counsel; or
3. Guardian ad litem.
Need to Consult Prosecutor or Counsel
Before the guardian ad litem applies for an order
under this section, he/she shall consult the
prosecutor or counsel and shall defer to the
judgment of the prosecutor or counsel regarding the
necessity of applying for an order.
In case the guardian ad litem is convinced that the
decision of the prosecutor or counsel not to apply
628

will cause the child serious emotional trauma, the
guardian ad litem may apply for the order.
Period to Apply
The person seeking such an order shall apply at
least five (5) days before the trial date, unless the
court finds on the record that the need for such an
order was not reasonably foreseeable.
The court may motu proprio hear and determine,
with notice to the parties, the need for taking the
testimony of the child through live-link television.
Where Live-Link TV Testimony Taken
The judge may question the child in chambers, or in
some comfortable place other than the courtroom,
in the presence of the support person, guardian ad
litem, prosecutor, and counsel for the parties.
The questions of the judge shall not be related to
the issues at trial but to the feelings of the child
about testifying in the courtroom.
The judge may exclude any person, including the
accused, whose presence or conduct causes fear to
the child.
When it may be approved
The court may order that the testimony of the child
be taken by live-link television if there is a
substantial likelihood that the child would suffer
trauma from testifying in the presence of the
accused, his/her counsel or the prosecutor as the
case may be. The trauma must be of a kind, which
would impair the completeness or truthfulness of
the testimony of the child.
Factors to Consider in Granting or Denying a
Request For Live-Link TV Testimony
The court shall issue an order granting or denying
the use of live-link television and stating the
reasons therefor. It shall consider the following
factors:
1. The age and level of development of the
child;
2. His physical and mental health, including
any mental or physical disability;
3. Any physical, emotional, or psychological
injury experienced by him;
4. The nature of the alleged abuse;
5. Any threats against the child;
6. His relationship with the accused or
adverse party;
7. His reaction to any prior encounters with
the accused in court or elsewhere;
8. His reaction prior to the trial when the topic
of testimony was discussed with him/her by
parents or professionals;
9. Specific symptoms of stress exhibited by
the child in the days prior to testifying;
10. Testimony of expert or lay witnesses;
11. The custodial situation of the child and the
attitude of the members of his/her family
regarding the events about which he/she will
testify; and
12. Other relevant factors, such as court
atmosphere and formalities of court procedure.
Rules in Taking Testimony by Live-Link
Television
If the court orders the taking of testimony by live-link
television:
1. The child shall testify in a room separate
from the courtroom in the presence of the
guardian ad litem; one or both of his/her
support persons; the facilitator and interpreter,
if any; a court officer appointed by the court;
persons necessary to operate the closed-circuit
television equipment; and other persons whose
presence are determined by the court to be
necessary to the welfare and well-being of the
child.
2. The judge, prosecutor, accused, and
counsel for the parties shall be in the
courtroom. The testimony of the child shall be
transmitted by live-link television into the
courtroom for viewing and hearing by the
judge, prosecutor, counsel for the parties,
accused, victim, and the public unless
executed.
3. If it is necessary for the child to identify the
accused at trial, the court may allow the child to
enter the courtroom for the limited purpose of
identifying the accused, or the court may allow
the child to identify the accused by observing
the image of the latter on a television monitor.
4. The court may set other conditions and
limitations on the taking of the testimony that it
finds just and appropriate, taking into
consideration the best interests of the child.
629
Preservation of Child’s Testimony:
The testimony of the child shall be preserved on
videotape, digital disc, or other similar devices
which shall be made part of the court record and
shall be subject to a protective order.
f. VIDEOTAPED DEPOSITION OF A CHILD
WITNESS (Section 27)
Who May Apply for Videotaped Deposition
The prosecutor, counsel or guardian ad litem may
apply for an order that a deposition be taken of the
testimony of the child and that it be recorded and
preserved on videotape.
Before the guardian ad litem applies for an order,
he/she shall consult with the prosecutor or counsel.
When order for Videotaped Deposition Issued
If the court finds that the child will not be able to
testify in open court at trial, it shall issue an order
that the deposition of the child be taken and
preserved by videotape.
Who Shall Preside Over Videotaped Deposition
The judge shall preside at the videotaped
deposition of a child.
Rule on Objections to Videotaped Deposition
Objections to deposition testimony or evidence, or
parts thereof, and the grounds for the objection
shall be stated and shall be ruled upon at the time
of the taking of the deposition.
Persons Who May Be Permitted in Videotaped
Deposition
The other persons who may be permitted to be
present at the proceedings are:
1. Prosecutor;
2. Defense counsel;
3. Guardian ad litem;
4. Accused;
5. Other persons whose presence is
determined by the court to be necessary to the
welfare and well-being of the child;
6. One or both of his/her support persons, the
facilitator and interpreter, if any;
7. Court stenographer; and
8. Persons necessary to operate the
videotape equipment.
Rights of the Accused Not to be Violated
The rights of the accused during trial, especially the
right to counsel and to confront and cross-examine
the child, shall not be violated during the deposition.
Exclusion of Accused in Videotaped Deposition
If the order of the court is based on evidence that
the child is unable to testify in the physical presence
of the accused, the court may direct the latter to be
excluded from the room in which the deposition is
conducted. In case of exclusion of the accused, the
court shall order that the testimony of the child be
taken by live-link television in accordance with
section 25 of this Rule. If the accused is excluded
from the deposition, it is not necessary that the child
be able to view an image of the accused.
Best Interests of the Child Taken Into
Consideration
The court may set other conditions on the taking of
the deposition that it finds just and appropriate,
taking into consideration the best interests of the
child, the constitutional rights of the accused, and
other relevant factors.
Admissibility of Videotaped Deposition When
Child Unable to Testify
If, at the time of trial, the court finds that the child is
unable to testify, the court may admit into evidence
the videotaped deposition of the child in lieu of his
testimony at the trial. The court shall issue an order
stating the reasons therefor.
Motion for Additional Videotaped Depositions
After the original videotaping but before or during
trial, any party may file any motion for additional
videotaping on the ground of newly discovered
evidence. The court may order an additional
videotaped deposition to receive the newly
discovered evidence.
Preservation of videotaped deposition
The videotaped deposition shall be preserved and
stenographically recorded and be subjected to
protective order.
g. HEARSAY EXCEPTION IN CHILD ABUSE
CASES (Section 28)
A statement made by a child describing any act or
attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be admitted
630
in evidence in any criminal or non-criminal
proceeding subject to the following rules:

1. Before such hearsay statement may be

admitted, its proponent shall make known to
the adverse party the intention to offer such
statement and its particulars to provide him a
fair opportunity to object. If the child is
available, the court shall, upon motion of the
adverse party, require the child to be present at
the presentation of the hearsay statement for
cross-examination by the adverse party. When
the child is unavailable, the fact of such
circumstances must be proved by the
proponent.
a. The child is deceased, suffers from
physical infirmity, lack of memory, mental
illness, or will be exposed to sever
psychological injury; or
b. The child is absent from the hearing and
the proponent of his/her statement has
been unable to procure his/her attendance
by process or other reasonable means.

2. In the ruling on the admissibility of such

hearsay statement, the court shall consider the
time, content and circumstances thereof which
provide sufficient indicia of reliability. It shall
consider the following factors:
4. When the child witness is unavailable,
his/her hearsay testimony shall be admitted
only if corroborated by other admissible
evidence.

a. Whether there is a motive to lie;

b. The general character of the declarant
child; h. SEXUAL ABUSE SHIELD RULE (Section 30)
c. Whether more than one person heard the
statement; The Following Evidence is NOT ADMISSIBLE in
d. Whether the statement was spontaneous; Any Criminal Proceeding Involving Alleged
e. The timing of the statement and the Child Sexual Abuse
relationship between the declarant child
and witness;
f. Cross-examination could not show the lack
of knowledge of the declarant child; 1. Evidence offered to prove that the alleged
g. The possibility of faulty recollection of the victim engaged in other sexual behavior; and
declarant child is remote; and 2. Evidence offered to prove the sexual
h. The circumstances surrounding the predisposition of the alleged victim.
statement are such that there is no reason
to suppose the declarant child
misrepresented the involvement of the
accused.

Exception:
3. The child witness shall be considered Evidence of specific instance of sexual behavior
unavailable under the following situations: by the alleged victim to prove that a person other
than the accused was the source of semen,

631
 injury, or other physical evidence shall be
admissible.
A party intending to Offer Such Evidence Must:
1. File a written motion at least 15 days before
trial, specifically describing the evidence and
stating the purpose for which it is offered,
unless the court, for good cause, requires a
different for filing or permits filing during trial;
and
2. Serve the motion on all parties and the
guardian ad litem at least three days before the
hearing of the motion.
This object or document and the contents thereof
are subject to a protective order issued by the court
in (case title), (case number). They shall not be
examined, inspected, read, viewed, or copied by
any person, or disclosed to any person, except as
provided in the protective order. No additional
copies of the tape or any of its portion shall be
made, given, sold, or shown to any person without
prior court order. Any person violating such
protective order is subject to the contempt power of
the court and other penalties prescribed by law.
5. No tape shall be given, loaned, sold, or shown
to any person except as ordered by the court.

Before admitting such evidence, the court must

conduct a hearing in chambers and afford the child,
his/her guardian ad litem, the parties, and their
counsel a right to attend and be heard. The motion
and the record of the hearing must be sealed and
remain under seal and protected by a protective
order set forth in section 31(b). The child shall not
be required to testify at the hearing in chambers
except with his/her consent.
6. Within 30 days from receipt, all copies of the
tape and any transcripts thereof shall be
returned to the clerk of court for safekeeping
unless the period is extended by the court on
motion of a party.

i. PROTECTIVE ORDERS (Section 31)

Any videotape or audiotape of a child that is part of

the court record shall be under a protective order
that provides as follows: 7. This protective order shall remain in full force
and effect until further order of the court.
1. Tapes may be viewed only by parties, their
counsel, their expert witness, and the guardian The court may, motu proprio or on motion of any
ad litem. party, the child, his/her parents, legal guardian, or
2. No tape, or any portion thereof, shall be
divulged to any other person, except as
necessary for the trial.
3. No person shall be granted access to the tape,
its transcription or any part thereof unless F. OFFER AND OBJECTION
he/she signs a written affirmation that he/she
has received and read a copy of the protective
order; that he/she submits to the jurisdiction of
the court with respect to the protective order; the guardian ad litem, issue additional orders to
and that in case of violation thereof, he/she will protect the privacy of the child.
be subject to the contempt power of the court.
4. Each of the tape cassettes and transcripts END OF TOPIC
thereof made available to the parties, their
counsel, and respective agents shall bear the
following cautionary notice:
1. OFFER OF EVIDENCE

632
2. WHEN TO MAKE AN OFFER
3. OBJECTION
4. REPETITION OF AN OBJECTION
5. RULING
6. STRIKING OUT AN ANSWER
7. TENDER OF EXCLUDED EVIDENCE
1. OFFER OF EVIDENCE
The court shall consider no evidence which has not
been formally offered. The purpose for which the
evidence is offered must be specified.
Exceptions:
1. Evidence not formally offered can be
considered by the court as long as they
have been properly identified by testimony
duly recorded and
2. They have themselves been incorporated
in the records of the case. (People v
Libnao, G.R. No. 13860, 2003)
Purpose of Offer
Formal offer is necessary because it is the duty of
the judge to rest his findings of facts and his
judgment only and strictly upon the evidence
offered by the parties at the trial.
The purpose for which the evidence is offered must
be specified because such evidence may be
admissible for several purposes under the doctrine
of multiple admissibility, or may be admissible for
one purpose and not for another; otherwise the
adverse party cannot interpose the proper
objection. Evidence submitted for one purpose may
not be considered for any other purpose.
Note: A party who has introduced evidence is NOT
entitled as a matter of right to withdraw it on finding
that it does not answer his purpose.
The Identification and Formal Offer
Distinguished:
1. IDENTIFICATION – Identification of the
evidence is made in the course of the trial and
marked as exhibits. Any objection made at this
stage is premature.
2. FORMAL OFFER – it is only when the
proponent rests his case and formally offers the
evidence that an objection thereto may be
made.
Note: A party has the option of not offering into
evidence the evidence identified at the trial and
marked as an exhibit.
Note: The mere fact that a particular document is
identified and marked as an exhibit does not mean
it will be or has been offered as part of the evidence
of the party. The party may decide to formally offer
it if it believes this will advance its cause, and then
again it may decide not to do so at all. (Interspecific
Transit v. Aviles, G.R. No. 86062, 1990)
There are instances when the Court relaxed the
foregoing rule and allowed evidence not formally
offered to be admitted. Citing People v. Napat-a and
People. v. Mate the Court in Heirs of Romana
Saves, et al., v. Heirs of Escolastico Saves, et al.
(632 SCRA 236 2010), enumerated the
requirements for the evidence to be considered
despite failure to formally offer it, namely: “first, the
same must have been duly identified by
testimony duly recorded and, second, the same
must have been incorporated in the records of
the case.” In People v. Vivencio De Roxas et al.
(G.R. No. L-16947, 1962), the Court also
considered exhibits which were not formally
offered by the prosecution but were repeatedly
referred to in the course of the trial by the
counsel of the accused.
In the instant case, the Court finds that the above
requisites are attendant to warrant the relaxation of
the rule and admit the evidence of the petitioners
not formally offered. As can be seen in the records
of the case, the petitioners were able to present
evidence that have been duly identified by
testimony duly recorded. To identify is to prove the
identity of a person or a thing. Identification means
proof of identity; the proving that a person, subject
or article before the court is the very same that he
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or it is alleged, charged or reputed to be. (Rodolfo
Laborte, et al. v. Pagsanjan Tourism Consumers’
Cooperative, et al., G.R. No. 183860, 2014)
2. WHEN TO MAKE AN OFFER
evidence are not self-operating and hence,
must be invoked by way of an objection.
2. To protect the record, i.e. to present the issue
of inadmissibility of the offered evidence in a
way that if the trial court rules erroneously, the
error can be relied upon as a ground for a
future appeal;
3. To protect a witness from being embarrassed
on the stand or from being harassed by the
adverse counsel
4. To expose the adversary’s unfair tactics like his
consistently asking obviously leading questions
5. To give the trial court an opportunity to correct
its own errors and, at the same time, warn the
court that a ruling adverse to the objector may
supply a reason to invoke a higher court’s
appellate jurisdiction; and
6. To avoid a waiver of the inadmissibility of an
otherwise inadmissible evidence. (Riano,
Evidence, 517-518)

TESTIMONIAL DOCUMENTARY AND Purpose: To stop an answer to a question put to a

EVIDENCE OBJECT EVIDENCE witness or to prevent the receipt of a document in
evidence until the court has had opportunity to
make a ruling upon its admissibility

Rules on Objections (Rule 132, Section 36)

It shall be offered after 1. As to evidence offered orally – objection

the presentation of a
The offer must be party’s testimonial
made at the time the evidence.
witness is called to Such offer shall be
testify. done orally unless
allowed by the court to
be done in writing.
must be made immediately after the offer is
made.
2. As to evidence offered in writing –
objection shall be made within three (3) days
after notice of the offer unless a different period
is allowed by the court.
3. As to questions propounded in the
course of the oral examination– objection
shall be made as soon as the grounds therefor
shall become reasonably apparent.

In any case, the grounds for the objections must be

specified.

An objection to evidence cannot be made in

advance of the offer of the evidence sought to be
3. OBJECTION introduced.

The right to object is a mere privilege which the

parties may waive. And if the ground for objection
is known and not seasonably made, the objection is
Purposes of Objections:
deemed waived and the court has no power, on its
1. To keep out inadmissible evidence that would
cause harm to a client’s cause. The rules of

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own motion, to disregard the evidence. (People v. If otherwise
Yatco, G.R. No. L-9181, 1955) qualified -
objection
should be
raised when the
objectionable
question is
asked or after
the answer is
WHEN WHEN IT MAY given if the
OFFERED BE OBJECTED objectionable
features
became
apparent by
reason of such
answer.

When the
same is
presented
for its view
or
evaluation, Should be Formally
as in ocular made either at offered by
inspection or the time it is the
demonstra- presented in an proponent
Object
tions, or ocular after the
evidence At the time it is
when the inspection or Documentary presentation
formally offered.
party rests demonstrations evidence of his/her
his case and or when it is last witness
the real formally offered and before
evidence he rests his
consists of case.
objects
exhibited in
court.

Testimonial When As to the

evidence witness is qualification of 4. RULE ON REPETITION OF
called to the the witness – OBJECTION
witness should be made
stand, before at the time he is
he/she called to the
testifies stand and
immediately
When it becomes reasonably apparent in the
after the
course of the examination of a witness that the
opposing party
questions being propounded are of the same class
offers his/her
as those to which objection has been made,
testimony.

635
whether such objection was sustained or overruled,
it shall not be necessary to repeat the objection, it
being sufficient for the adverse party to record
his/her continuing objection to such class of
question. (Rule 132, Section 37)
5. RULING
When Ruling of Court Must be Given
The ruling of the court must be given immediately
after the objection is made, unless the court desires
to take a reasonable time to inform itself on the
question presented; but the ruling shall always be
made during the trial and at such time as will give
the party against whom it is made an opportunity to
meet the situation presented by the ruling.
When Reason For Ruling Must be Stated
1. The reason for sustaining or overruling an
objection need not be stated.
2. If the objection is based on two or more
grounds, a ruling sustaining the objection on
one or some of them must specify the ground
or grounds relied upon.
Note: The rulings of the trial court on procedural
questions and on admissibility of evidence during
the course of a trial are interlocutory in nature and
may not be the subject of separate appeals or
review on certiorari. These are to be assigned as
errors and reviewed in the appeal taken from the
trial court on the merits of the case.
6. STRIKING OUT AN ANSWER
General Rule: An objection to questions
propounded in the course of oral examination must
be interposed as soon as the ground(s) become
evident. Failure to interpose a timely objection may
be taken as a waiver of the right to object and the
answer will be admitted.
Exceptions: A motion to strike out the answer is
available as a remedy where:
1. A witness answers a question after an
objection has been sustained;
2. The irrelevance of the evidence
becomes apparent only after an
objection has been overruled;
3. Where a witness answers a question
before an attorney can object.
An Answer May be Stricken Off the Record By:
1. Upon the court’s own motion – Should a
witness answer the question before the
adverse party had the opportunity to voice fully
its objection to the same, and such objection is
found to be meritorious, the court shall sustain
the objection and order the answer given to be
stricken off the record.
2. On motion of party – The court may also
order the striking out of answers, which are
incompetent, irrelevant, or otherwise improper.
7. TENDER OF EXCLUDED
EVIDENCE
Where the court refuses to permit the counsel to
present testimony which he thinks is competent,
material and necessary to prove his case, the
method to properly preserve the record to the end
that the question may be saved for the purposes of
review, is through the making of an offer of proof.
Purpose:
636
1. To inform the court what is expected to be
proved.
2. So that a higher court may determine from
the record whether the proposed evidence is
competent.

Rule on Tender of Excluded Evidence

1. If the excluded evidence is

documentary or object - the offeror may have
the same attached to or made part of the
record. (Rule 132, Sec. 40)
2. If the evidence excluded is oral – the
offeror may state for the record the name and
other personal circumstances of the witness
and the substance of the proposed testimony.
(Rule 132, Sec. 40)

END OF TOPIC

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