6 Remedial Law 2022 Ust Golden Notes Confidential PDF

FACULTY OF CIVIL LAW (1734)
REMEDIAL LAW
2022 GOLDEN NOTES

FACULTY OF CIVIL LAW
UNIVERSITY OF SANTO TOMAS
MANILA
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Faculty of Civil Law (1734)
ACADEMIC YEAR 2021-2022

CIVIL LAW STUDENT COUNCIL
NATHAN RAPHAEL D.L. AGUSTIN PRESIDENT
STEPHEN FLOYD A. GOPEZ VICE PRESIDENT INTERNAL
NICOLO B. BONGOLAN VICE PRESIDENT EXTERNAL
PATRICIA INGRID M. SEE SECRETARY
JULIENNE CELINE G. OGAYON TREASURER
IVAN ARNIE C. QUIAMCO PUBLIC RELATIONS OFFICER
KAREN DARYL L. BRITO CHIEF-OF-STAFF
UST BAR-OPS
SARAH ANGELA D. EVA CHAIRPERSON

JUSTINE RENEE GERVACIO VICE-CHAIRPERSON
MA. ANDREA D. CABATU SECRETARY
JAN YSABEL U. DE LEON HEAD, PUBLIC RELATIONS OFFICER
PAULINNE STEPHANY G. SANTIAGO HEAD, FINANCE COMMITTEE
KAREN DARYL L. BRITO HEAD, HOTEL ACCOMMODATIONS COMMITTEE
RALPH DOMINIC V. MARTINEZ HEAD, LOGISTICS COMMITTEE
JEDIDIAH R. PADUA SENIOR MEMBER
SABINA MARIA H. MABUTAS SENIOR MEMBER
JOSEPHINE GRACE W. ANG SENIOR MEMBER
REBECCA JOY M. MALITAO SENIOR MEMBER
JOHN FREDERICK A. NOJARA SENIOR MEMBER
ATTY. AL CONRAD B. ESPALDON

ADVISER
ACADEMICS COMMITTEE 2022

FRANCINE BLAISE M. LOJA SECRETARY GENERAL
JOANNA NICOLE A. PAZ SECRETARY GENERAL
MARC GABRIEL A. ABELLA EXECUTIVE COMMITTEE for LEGAL ETHICS
KIARA LOUISE T. BALIWAG EXECUTIVE COMMITTEE for CRIMINAL LAW
EXECUTIVE COMMITTEE for LABOR LAW AND
DANIELLE B. BARANDA
SOCIAL LEGISLATION
MA. CARMINA A. DIETA EXECUTIVE COMMITTEE for CIVIL LAW
DAINIELE RENEE R. FAJILAGUTAN EXECUTIVE COMMITTEE for REMEDIAL LAW
GEORJHIA CZARINAH Q. MALALUAN EXECUTIVE COMMITTEE for COMMERCIAL LAW
MARIA CRISANTA M. PALOMA EXECUTIVE COMMITTEE for POLITICAL LAW
MIKAELA CECILLE S. SILVERIO EXECUTIVE COMMITTEE for TAXATION LAW
JERICHO SIMON H. DU COVER DESIGN ARTIST
REMEDIAL LAW COMMITTEE 2022

KAREN LOUISE R. FLORECE
REMEDIAL LAW SUBJECT HEAD
SOFIA MARIE B. CLARIÑO ASST. HEAD, CIVIL PROCEDURE

MARIA LUCILA MARGARITA P. MANGROBANG ASST. HEAD, SPECIAL PROCEEDINGS
NORIEL C. BERNABE ASST. HEAD, CRIMINAL PROCEDURE
VANESSA A. SIENA ASST. HEAD, EVIDENCE
MEMBERS
MARC GABRIEL A. ABELLA ABIGAIL P. MANALOTO
PRINCESS MONIQUE M. AGPAOA PIA AILA D. MARTINEZ
JANIELLA KIM JAZZY B. BESIÑO VINCE ANDREW R. MUNCAL
JOHN MATTHEW O. CRUEL ANNA NERISSA C. SABINO
MA. CARMINA, A. DIETA SOFIA PATRICIA L. SALCEDO
AXL V. FRANCISCO MIKAELA CECILLE S. SILVERIO
ANDREA ROSE G. GARCIA CEDRIC EMMANUEL S. VILLARAN
MARY PAULINE L. JIMENEZ DIANNE MICAH ANGELA D. YUMANG
JUDGE MYRA B. QUIAMBAO

JUDGE KATLYN ANNE C. AGUILAR-BILGERA
ATTY. IAN JERNY E. DE LEON
ADVISERS
TAXATION LAW COMMITTEE 2022

ALEXANDER J. CAIRO
TAXATION LAW SUBJECT HEAD
THEA ALEXANDRA D. RAMOS ASST. HEAD, PROCEDURE IN TAX CASES
MEMBERS
LOUIZE ALLAINE T. AREÑO
JULIUS ERNHEST BERAME
JEAN ALMIRA S. BULONG
BIANCA MAY L. DORADO
MAUREEN KRIS RODRIGUEZ
ATTY. JAMIE ANDREA MAE Y. ARLOS-MARTINEZ

ADVISER

UNIVERSITY OF SANTO TOMAS
ACADEMIC OFFICIALS
ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAÑO, O.P.
DEAN REGENT
ATTY. ARTHUR B. CAPILI

FACULTY SECRETARY
ATTY. ELGIN MICHAEL C. PEREZ

LEGAL COUNSEL
UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC
JUDGE PHILIP A. AGUINALDO

SWDB COORDINATOR
LENY G. GADIANA, R.G.C.

GUIDANCE COUNSELOR
OUR DEEPEST APPRECIATION TO OUR

MENTORS AND INSPIRATION
Justice Roberto A. Abad Judge Myra B. Quiambao
Justice Maria Cristina J. Cornejo† Judge Gidget Rose V. Duque
Justice Maria Filomena D. Singh Judge Leilani Marie D. Grimares

Justice Magdangal M. De Leon Dean Jose I. Dela Rama
Justice Myra V. Fernandez Dean Lope E. Feble
Justice Oscar C. Herrera, Jr. Dean Ma. Soledad D. Mawis
Justice Amy Lazaro-Javier Dean Carlos M. Ortega
Justice Zenaida G. Laguilles Dean Willard B. Riano†
Justice Carlito B. Calpatura Dean Ferdinand A. Tan

Justice Jose Lorenzo R. De La Rosa Judge Gener M. Gito
Justice Georgina D. Hidalgo Atty. Irene D.T. Alogoc
Justice Ronald B. Moreno Atty. Ian Jerny E. De Leon
Justice Gabriel T. Robeniol Atty. Gregorio Gerry F. Fernandez
Judge Philip A. Aguinaldo Atty. Benigno G. Par, Jr.
Judge Cesar D. Santamaria, Sr. † Atty. Christian G. Villasis
For being our guideposts in understanding the intricate sphere of Remedial Law.
– Academics Committee 2022
OUR DEEPEST APPRECIATION TO OUR

MENTORS AND INSPIRATION
Justice Japar B. Dimaampao
Atty. Abelardo T. Domondon
Atty. Noel M. Ortega
Atty. Virginia Jeannie P. Lim
Atty. Prudence Angelita A. Kasala
Atty. Benedicta Du-Baladad
Atty. Rizalina V. Lumbera
Atty. Lean Jeff M. Magsombol
Atty. Kenneth Glenn L. Manuel
Atty. Clarice Angeline V. Questin
For being our guideposts in understanding the intricate sphere of Taxation Law.
– Academics Committee 2022
DISCLAIMER
THE RISK OF USE OF THIS BAR

REVIEW MATERIAL SHALL BE
BORNE BY THE USER
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Table of Contents
PART 1
FIRST LEVEL COURTS
I. GENERAL PRINCIPLES ......................................................................................................................................... 1
A. SUBSTANTIVE LAW vs. REMEDIAL LAW ........................................................................................1

B. RULE-MAKING POWER OF THE SUPREME COURT ....................................................................3
C. PRINCIPLE OF JUDICIAL HIERARCHY .............................................................................................. 5
D. DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL STABILITY ..................7
E. JURISDICTION .......................................................................................................................................... 7
1. ORIGINAL vs. APPELLATE............................................................................................................... 7
2. GENERAL vs. SPECIAL....................................................................................................................... 8
3. EXCLUSIVE vs. CONCURRENT ....................................................................................................... 8
4. CONTINUITY OF JURISDICTION ................................................................................................... 8
5. ORIGINAL JURISDICTION OF VARIOUS PHILIPPINE COURTS ......................................... 9
6. ASPECTS OF JURISDICTION ......................................................................................................... 25
a. JURISDICTION OVER THE PARTIES.............................................................................. 25
b. JURISDICTION OVER THE SUBJECT MATTER .......................................................... 26
c. JURISDICTION OVER THE ISSUES.................................................................................. 27
d. JURISDICTION OVER THE RES OR THE PROPERTY IN LITIGATION .............. 27
7. JURISDICTION vs. EXERCISE OF JURISDICTION ................................................................. 28
8. JURISDICTION vs. VENUE ............................................................................................................. 28
9. JURISDICTION OVER CASES COVERED BY BARANGAY CONCILIATION, SMALL
CLAIMS CASES AND CASES COVERED BY SUMMARY PROCEDURE................................ 30
II. CIVIL PROCEDURE ............................................................................................................................................ 34
A. GENERAL PROVISIONS (RULE 1) ................................................................................................... 34

B. CAUSE OF ACTION (RULE 2) ............................................................................................................ 39
C. PARTIES TO CIVIL ACTIONS (RULE 3) .......................................................................................... 46
D. VENUE (RULE 4) .................................................................................................................................. 59
E. PLEADINGS ............................................................................................................................................ 63
1. KINDS OF PLEADINGS (RULE 6)................................................................................................ 63
2. PARTS AND CONTENTS OF A PLEADING OF A PLEADING (RULE 7) ........................ 72
3. MANNER OF MAKING ALLEGATIONS ..................................................................................... 81
4. EFFECT OF FAILURE TO PLEAD OF FAILURE TO PLEAD (RULE 9) ........................... 86
5. AMENDED AND SUPPLEMENTAL PLEADINGS (RULE 10)............................................. 86
6. WHEN TO FILE RESPONSIVE PLEADINGS (RULE 11)...................................................... 89
7. BILL OF PARTICULARS (RULE 12) ........................................................................................... 91
8. EFFICIENT USE OF PAPER RULE (A.M. No. 11-9-4-SC) .................................................. 93
RULES ON E-FILING (A.M. No. 10-3-7-SC).................................................................................. 94
F. FILING AND SERVICE OF PLEADINGS, JUDGMENTS,
FINAL ORDERS AND RESOLUTIONS............................................................................................ 96
1. RULES ON PAYMENT OF DOCKET FEES; EFECT OF NON-PAYMENT....................... 96
2. Rule 13 ................................................................................................................................................. 97
G. SUMMONS............................................................................................................................................ 106
1. NATURE AND PURPOSE OF SUMMONS IN RELATION TO
ACTIONS IN PERSONAM, IN REM AND QUASI IN REM ....................................................... 106
2. SUMMONS (RULE 14) .................................................................................................................. 106
H. MOTIONS ............................................................................................................................................. 116
1. MOTIONS IN GENERAL ............................................................................................................... 116
2. LITIGIOUS MOTIONS .................................................................................................................... 117
3. NON-LITIGIOUS MOTIONS......................................................................................................... 118
4. PROHIBITED MOTIONS............................................................................................................... 118
I. DISMISSAL OF ACTIONS................................................................................................................... 119
1. WITH PREJUDICE VS. WITHOUT PREJUDICE; DISMISSALS WHICH HAVE AN
EFFECT OF AN ADJUDICATION ON THE MERITS ................................................................. 119
2. RULE 17 ............................................................................................................................................. 122
J. PRE-TRIAL (RULE 18) ...................................................................................................................... 123
K. INTERVENTION (RULE 19)............................................................................................................ 129
L. CALENDAR OF CASES (RULE 20).................................................................................................. 133
M. SUBPOENA ......................................................................................................................................... 133
N. COMPUTATION OF TIME (RULE 22) .......................................................................................... 135
O. MODES OF DISCOVERY ................................................................................................................... 137
1. DEPOSITIONS .................................................................................................................................. 138
2. INTERROGATORIES ...................................................................................................................... 145
3. ADMISSION BY ADVERSE PARTY ........................................................................................... 148
4. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS .................................... 149
5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS ................................................ 150
6. REFUSAL TO COMPLY WITH MODES OF DISCOVERY.................................................... 151
P. TRIAL .................................................................................................................................................... 152
Q. CONSOLIDATION OR SEVERANCE (RULE 31) ......................................................................... 155
R. DEMURRER TO EVIDENCE ............................................................................................................. 156
S. JUDGMENTS AND FINAL ORDERS ................................................................................................ 159
1. JUDGMENT ON THE PLEADINGS (RULE 34) ...................................................................... 160
2. SUMMARY JUDGMENTS (RULE 35) ....................................................................................... 161
3. RENDITION OF JUDGMENTS. AND ENTRY OF JUDGMENTS AND
FINAL ORDERS (RULE 36).............................................................................................................. 166
T. MOTION FOR NEW TRIAL OR RECONSIDERATION ............................................................... 171
1. RULE 37 ............................................................................................................................................. 171
2. REMEDY WHEN MOTION IS DENIED; FRESH 15-DAY PERIOD RULE..................... 174
U. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS (RULE 39) .......................... 176
III. PROVISIONAL REMEDIES ........................................................................................................................... 202
A. NATURE, PURPOSE AND JURISDICTION OVER ....................................................................... 202

PROVISIONAL REMEDIES ................................................................................................................... 202
B. PRELIMINARY ATTACHMENT (RULE 57)................................................................................. 205
C. PRELIMINARY INJUNCTION (RULE 58) ..................................................................................... 217
D. RECEIVERSHIP (RULE 59) ............................................................................................................. 232
E. REPLEVIN (RULE 60) ....................................................................................................................... 235
IV. SPECIAL CIVIL ACTIONS .............................................................................................................................. 238
A. JURISDICTION AND VENUE ........................................................................................................... 239

B. INTERPLEADER (RULE 62) ........................................................................................................... 241
C. DECLARATORY RELIEFS AND SIMILAR REMEDIES (RULE 63) ......................................... 242
D. CERTIORARI, PROHIBITION AND MANDAMUS ..................................................................... 247
E. QUO WARRANTO (RULE 66)......................................................................................................... 269
F. EXPROPRIATION .............................................................................................................................. 273
1. RULE 67 ............................................................................................................................................. 274
2. GUIDELINES FOR EXPROPRIATION PROCEEDINGS
IN INFRASTRUCTURE PROJECTS (SEC. 6, R.A. NO. 10752) ............................................. 284
G. FORECLOSURE OF REAL ESTATE MORTGAGES ..................................................................... 287
1. JUDICIAL FORECLOSURE (RULE 68) ....................................................................................289
2. EXTRAJUDICIAL FORECLOSURE (Act No. 3135) .............................................................289
3. THE GENERAL BANKING LAW OF 2000 (Sec. 47, R.A. No. 8751) .............................297
H. PARTITION (RULE 69) ................................................................................................................... 299
I. FORCIBLE ENTRY AND UNLAWFUL DETAINER...................................................................... 303
1. DISTINGUISHED FROM ACCION PUBLICIANA AND
ACCION REIVINDICATORIA.............................................................................................................. 306
2. RULE 70 ............................................................................................................................................. 308
J. CONTEMPT (RULE 71) ..................................................................................................................... 315
V. SPECIAL PROCEEDINGS ................................................................................................................................ 324
A. SETTLEMENT OF ESTATE OF DECEASED PERSONS,

VENUE, AND PROCESS (RULE 73) ............................................................................................. 334
1. VENUE AND PROCESS (RULE 73) ........................................................................................... 334
2. SUMMARY SETTLEMENT OF ESTATES (RULE 74) ......................................................... 338
3. ALLOWANCE AND DISALLOWANCE OF WILLS (RULE 76) .........................................344
4. CLAIMS AGAINST THE ESTATE (RULE 86)......................................................................... 350
5. PAYMENT OF DEBTS OF THE ESTATE (RULE 88) ........................................................... 356
6. SALES, MORTGAGES, AND OTHER ENCUMBRANCES
OF PROPERTY OF DECEDENT (RULE 89) ................................................................................ 359
7. DISTRIBUTION AND PARTITION (RULE 90)...................................................................... 360
B. ESCHEAT (Rule 91) .......................................................................................................................... 364
C. GUARDIANSHIP (Rule 93) ............................................................................................................. 367
1. VENUE (Rule 92) ............................................................................................................................ 368
2. APPOINTMENT OF GUARDIANS (Rule 93) .........................................................................368
3. GENERAL POWERS AND DUTIES ............................................................................................ 370
OF GUARDIANS (Rule 96) .............................................................................................................. 370
4. TERMINATION OF GUARDIANSHIP ....................................................................................... 371
D. WRIT OF HABEAS CORPUS (Rule 102)....................................................................................... 375
1. RULE 102........................................................................................................................................... 375
2. WRIT OF HABEAS CORPUS IN RELATION TO
CUSTODY OF MINORS (A.M. No. 03-04-04-SC)........................................................................ 391
E. CHANGE OF NAME (Rule 103) ...................................................................................................... 395
F. CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY (Rule 108) ........................................................................................ 404
G. CLERICAL ERROR LAW (Rule 108 in relation to R.A. No. 9048) ...................................... 406
H. WRIT OF AMPARO (A.M. NO. 07-9-12-SC) ................................................................................ 411
I. WRIT OF HABEAS DATA (A.M. No. 08-1-16-SC) ........................................................................ 421
J. RULES OF PROCEDURE FOR ENVIRONMENTAL CASES (A.M. No. 09-6-8-SC) ............... 425
1. TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO) ............................... 426
2. WRIT OF CONTINUING MANDAMUS..................................................................................... 427
3. WRIT OF KALIKASAN (Rule 7, A.M. No. 09-6-8-SC) ......................................................... 433
VI. CRIMINAL PROCEDURE ............................................................................................................................... 437
A. GENERAL MATTERS ......................................................................................................................... 437

1. CRIMINAL JURISDICTION;
CONCEPT AND REQUISITES OF EXERCISE .............................................................................. 437
2. WHEN INJUNCTION MAY BE ISSUED
TO RESTRAIN CRIMINAL PROSECUTION ................................................................................ 443
B. PROSECUTION OF OFFENSES (RULE 110)................................................................................ 444
C. PROSECUTION OF CIVIL ACTIONS (RULE 111)....................................................................... 459
D. PRELIMINARY INVESTIGATION .................................................................................................. 466
1. EXECUTIVE v. JUDICIAL DETERMINATION OF PROBABLE CAUSE.......................... 466
2. RULE 112........................................................................................................................................... 472
E. ARREST (RULE 113)......................................................................................................................... 481
F. BAIL (RULE 114) ............................................................................................................................... 490
G. ARRAIGNMENT AND PLEA (RULE 116) .................................................................................... 505
H. MOTION TO QUASH (RULE 117) ................................................................................................. 512
I. PRE-TRIAL (RULE 118) .................................................................................................................... 523
J. TRIAL (RULE 119) ............................................................................................................................. 527
K. JUDGMENT (RULE 120) .................................................................................................................. 539
L. MOTION FOR NEW TRIAL OR RECONSIDERATION (RULE 121) ....................................... 543
M. SEARCH AND SEIZURE (RULE 126) ........................................................................................... 546
N. PROVISIONAL REMEDIES IN CRIMINAL CASES (RULE 127) .............................................. 559
O. REVISED GUIDELINES FOR CONTINUOUS TRIAL OF
CRIMINAL CASES (A.M. 15-06-10-SC) ....................................................................................... 561
P. THE RULE ON CYBERCRIME WARRANTS (A.M. No. 17-11-03-SC) ................................... 570
VII. EVIDENCE ....................................................................................................................................................... 579
A. GENERAL CONCEPTS ....................................................................................................................... 579

1. PROOF VS. EVIDENCE .................................................................................................................. 580
2. BURDEN OF PROOF VS. BURDEN OF EVIDENCE ..............................................................580
3. EQUIPOISE RULE............................................................................................................................ 581
B. ADMISSIBILITY ................................................................................................................................. 581
1. REQUISITES (RULE 128) ............................................................................................................ 581
2. EXCLUSIONARY RULES ...............................................................................................................581
3. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS (Rule 129) .........................................586
C. OBJECT (REAL) EVIDENCE (RULE 130, A) ............................................................................... 592
D. DOCUMENTARY EVIDENCE (RULE 130, B) ............................................................................. 602
1. DEFINITION...................................................................................................................................... 602
2. ORIGINAL DOCUMENT RULE
(PREVIOUSLY KNOWN AS THE BEST EVIDENCE RULE) .................................................. 603
3. SECONDARY EVIDENCE .............................................................................................................. 606
4. Parol Evidence Rule ......................................................................................................................611
5. INTERPRETATION OF DOCUMENTS .................................................................................... 615
E. TESTIMONIAL EVIDENCE (RULE 130, C) .................................................................................. 616
1. QUALIFICATION OF WITNESSES ............................................................................................ 616
2. TESTIMONIAL PRIVILEGE ......................................................................................................... 621
3. ADMISSIONS AND CONFESSIONS ........................................................................................... 633
4. PREVIOUS CONDUCT AS EVIDENCE ...................................................................................... 641
5. TESTIMONIAL KNOWLEDGE ....................................................................................................644
6. HEARSAY AND EXCEPTIONS TO THE HEARSAY RULE.................................................. 644
7. OPINION RULE ................................................................................................................................ 662
8. CHARACTER EVIDENCE .............................................................................................................. 664
F. BURDEN OF PROOF AND PRESUMPTIONS (RULE 131) ....................................................... 666
G. PRESENTATION OF EVIDENCE (RULE 132)............................................................................. 673
1. EXAMINATION OF WITNESSES ............................................................................................... 673
2. AUTHENTICATION AND PROOF OF DOCUMENTS ......................................................... 686
3. OFFER AND OBJECTION .............................................................................................................. 693
H. JUDICIAL AFFIDAVIT RULE (A.M. No. 12-8-8-SC).................................................................. 699
I. WEIGHT AND SUFFICIENCY OF EVIDENCE (RULE 133)........................................................ 705
J. RULES ON ELECTRONIC EVIDENCE (A.M. No. 01-7-01-SC) .................................................. 717
PART 2
APPEALLATE PRACTICE, PROCEDURE IN THE COURT OF APPEALS, COURT OF TAX APPEALS,

AND THE SUPREME COURT
I. APPEALS; GENERAL PRINCIPLES ................................................................................................................ 723
A. NATURE OF THE RIGHT TO APPEAL .......................................................................................... 723

B. JUDGEMENT AND FINAL ORDERS SUBJECT TO APPEAL ..................................................... 723
C. MATTERS NOT APPEALABLE; AVAILABLE REMEDIES......................................................... 724
D. DOCTRINE OF FINALITY/IMMUABILITY OF JUDGEMENT; EXCEPTIONS ...................... 724
II. POST – JUDGEMENT REMEDIES OTHER THAN APPEAL .................................................................... 726
A. PETITION FOR RELIEF FROM JUDGEMENT (RULE 38) ........................................................ 726

B. ANNULEMENTS OF JUDGEMENT BY THE COURT OF APPEALS (RULE 47) ................... 729
C. COLLATERAL ATTACK ON JUDGEMENT; WHEN PROPER ................................................... 732
D. RULE 65 AS A REMEDY FROM JUDGEMENT ............................................................................ 733
III. APPEALS IN CIVIL PROCEDURE: MODES OF APPEAL FROM JUDGEMENT OR FINAL ORDERS
OF VARIOUS COURTS/TRIBUNALS......................................................................................................... 734
A. RULE 40 – APPEAL FROM MUNICIPAL TRIAL COURTS

TO THE REGIONAL TRIAL COURTS. ......................................................................................... 734
B. RULE 41 – APPEAL FROM THE REGIONAL TRIAL COURT................................................... 735
C. RULE 42 – PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS
TO THE COURT OF APPEALS ...................................................................................................... 736
D. RULE 43 – APPEALS FROM THE COURT OF TAX APPEALS,
CIVIL SERVICE COMMISSION, AND QUASI -JUDICIAL AGENCIES. ................................... 739
E. RULE 45 – APPEALS BY CERTIORARI TO THE SUPREME COURT ..................................... 740
F. RULE 64 – REVIEW OF JUDGEMENTS OR FINAL ORDERS
OF THE COMMISSION ON AUDIT AND THE CMISSION OF ELECTION ........................... 743
G. DISMISSAL, REINSTATEMENT, AND WITHDRAWAL OF APPEAL..................................... 745
IV. APPEALS IN CRIMINAL CASES: MODES OF APPEAL FROM JUDGEMENTS OR FINAL ORDERS
OF VARIOUS COURTS/TRIBUNALS......................................................................................................... 748
A. RULE 112 ............................................................................................................................................. 748

B. HOW APPEALS ARE TAKEN........................................................................................................... 751
V. PROCEDURE IN TAX CASES ......................................................................................................................... 753
A. TAX REMEDIES UNDER THE NATIONAL INTERNAL REVENUE CODE............................. 753

B. TAX REMEDIES UNDER THE LOCAL GOVERNMENT CODE OF 1991 ............................... 831
C. THE COURT OF TAX APPEALS (R.A. 1125, AS AMENDED,
AND THE REVISED RULES OF THE CTA) ................................................................................ 851
1. JURISDICTION ................................................................................................................................. 851
2. PROCEDURES................................................................................................................................... 857
a. CIVIL CASES .......................................................................................................................... 857
b. CRIMINAL CASES................................................................................................................ 866
3. APPEAL TO THE CTA EN BANC ................................................................................................867
4. PETITION FOR REVIEW ON CERTIORARI TO THE SUPREME COURT .....................870
VI. PROCEDURE IN THE COURT OF APPEALS ............................................................................................ 877
A. RULE 44 - ORDINARY APPEALED CASES ................................................................................. 877

B. RULE 46 - ORIGINAL CASES........................................................................................................... 879
C. RULE 47 - ANNULMENT OF JUDGEMENTS OR
FINAL ORDERS AND RESOLUTIONS......................................................................................... 880
E. RULE 51 - JUDGEMENT; HARMLESS ERROR RULE ................................................................ 882
F. RULE 53 - NEW TRIAL ..................................................................................................................... 884
VII. PROCEDURE IN THE SUPREME COURT ................................................................................................ 885
A. RULE 56-A - ORIGINAL CASES ..................................................................................................... 885

B. RULE 56-B - APPEALED CASES.................................................................................................... 885
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General Principles
PART 1 A. SUBSTANTIVE LAW vs. REMEDIAL LAW
FIRST LEVEL COURTS

SUBSTANTIVE LAW REMEDIAL LAW
As to the Definition
Part of the law which
I. GENERAL PRINCIPLES creates, defines or
regulates rights
concerning life, liberty
or property (Primicias v.
Concepts in Remedial Law
Ocampo, G.R. No. L-6120,
Prescribes the methods
30 Jun. 1953) or the
Procedural laws are adjective laws which prescribe of enforcing those
powers of agencies or
rules and forms of procedure of enforcing rights or rights and obligations
instrumentalities for
obtaining redress for their invasion. They refer to created by substantive
the administration of
rules of procedure by which courts applying laws of law. (Ibid.)
public affairs, which
all kinds can properly administer justice. They
when violated gives rise
include rules of pleadings, practice, and evidence
to a cause of action.
(Tan, Jr. v. CA, G.R. No. 136368, 16 Jan. 2002) (2006
(Bustos v. Lucero, G.R.
BAR)
No. L-2068, 20 Oct.
1948)
Remedial law plays a vital role in the administration
of justice. It lies at the very core of procedural due As to Creation of Vested Rights
process, which means a law which hears before it Does not create vested
Creates vested rights.
condemns, one which proceeds upon inquiry and rights.
renders judgment only after trial and contemplates As to Prospective Application
an opportunity to be heard before judgment is
GR: May be applied
rendered. (Albert v. University Publishing, G.R. No. L-
retroactively.
19118, 30 Jan. 1965)
Procedural laws may be

Nature of Remedial Law
given retroactive effect
to actions pending and
Rules of Court, promulgated by authority of law,
undetermined at the
have the force and effect of law; and Rules of Court
time of their passage,
prescribing the time within which certain acts must
there being no vested
be done, or certain proceedings taken, are
rights in the rules of
considered absolutely indispensable to the Generally prospective
procedure.
prevention of needless delays and to the orderly and in application.
speedy discharge of judicial business. (Gonzales v.
Amendments to
Torres, A.M. No. MTJ-06-1653, 30 Jul. 2007)
procedural rules are
procedural or remedial
Strict compliance with the rules has been held
in character as they do
mandatory and imperative, so that failure to pay the
not create new or
docket fee in the Supreme Court, within the period
remove vested rights,
fixed for that purpose, will cause the dismissal of the
but only operate in
appeal. (Alvero v. De La Rosa et. al. G.R. No. L-286, 29
furtherance of the
Mar. 1946)
remedy or confirmation
1 UNIVERSITY OF SANTO TOMAS

Remedial Law
of rights already implementing an existing right, then the rule deals

existing. (Fil-Estate merely with procedure. (Fabian v. Desierto, G.R. No.
Properties, Inc. v. 129742, 16 Sept. 1998)
Homena-Valencia, G.R.
No. 173942, 25 Jun. Procedural laws applicable to actions pending at
2008) the Time of Promulgation
XPNs: Statutes and rules regulating the procedure of

courts are considered applicable to actions pending
1. The statute itself and unresolved at the time of their passage. This
expressly or by retroactive application does not violate any right of
necessary a person adversely affected. (Panay Railways, Inc. v.
implication Heva Management and Development Corporation et.
provides that Al., G.R. No. 154061, 25 Jan. 2012)
pending actions are
excepted from its Principal sources of Remedial Law
operation; (Co-D-Pro-C-A-I-C)
2. If applying the rule
to pending 1. Constitution;
proceedings would 2. Different laws creating the judiciary, defining
impair vested and allocating jurisdiction to courts of different
rights; levels;
3. Under appropriate 3. Procedural laws and rules promulgated by the
circumstances, SC;
courts may deny the 4. Circulars;
retroactive 5. Administrative orders;
application of 6. Internal rules; and
procedural laws in 7. Court decisions (Herrera, 2007)
the event that to do
so would not be Object of Remedial Law
feasible or would
work injustice; or The object is not to cause an undue protraction of
4. If to do so would the litigation, but to facilitate the adjudication of
involve intricate conflicting claims and to serve, rather than to defeat,
problems of due the ends of justice. (Santo Tomas University Hospital
process or impair v. Surla, et al., G.R. No. 129718, 17 Aug. 1998,
the independence referring to Continental Leaf Tobacco, Inc. v. IAC, G.R.
of the courts (Tan, No. L-69243, 22 Nov. 1985)
Jr. v. CA, G.R. No.
136368, 16 Jan. Objective of the Rules of Court
2002)
As to Promulgating Authority To secure a: (Ju-S-I)
Promulgated by the
Enacted by Congress. 1. Just;
Supreme Court.
2. Speedy; and
3. Inexpensive disposition of every action and
NOTE: If the rule takes away a vested right, it is not
proceeding. (Sec. 6, Rule 1, ROC, as amended)
procedural. If the rule creates a right such as the
right to appeal, it may be classified as substantive
matter, but if it operates as a means of
UNIVERSITY OF SANTO TOMAS 2

2022 GOLDEN NOTES
General Principles
Implementation of Remedial Laws in our System

of Government (2006 BAR) B. RULE-MAKING POWER OF
THE SUPREME COURT
They are implemented through the judicial system,
including the prosecutorial service of courts and
quasi-judicial agencies.
Extent of the Rule-Making Power of the SC
Interpretation of the Provisions of the Rules of

It has the power to promulgate rules concerning:
Court (1998 BAR)
(Pro-P-A-I-La)
GR: The Rules shall be liberally construed in order to

1. The Protection and enforcement of
promote their objective of securing a just, speedy
constitutional rights;
and inexpensive disposition of every action and
2. Pleading, practice, and procedure in all courts;
proceeding. (Sec. 6, Rule 1, ROC, as amended)
NOTE: The constitutional faculty of the Court to

XPNs: The following shall be strictly construed:
promulgate rules of practice and procedure
necessarily carries the power to overturn
1. Reglementary periods;
judicial precedents on points of remedial law
2. Rule on forum shopping; and
through the amendment of the Rules of Court.
3. Service of summons
(Pinga v. The Heirs of German Santiago, G.R. No.
170354, 30 Jun. 2006)
The liberal construction of the rules may only be
invoked in situations where there is an excusable
3. The Admission to the practice of law;
formal deficiency or error in a pleading, provided
4. The Integrated bar; and
that the same does not subvert the essence of the
5. Legal assistance to the underprivileged. (Sec.
proceeding and it at least connotes a reasonable
5(5), Art. VIII, 1987 Constitution)
attempt at compliance with the rules. (Martos, et al.
v. New San Jose Builders, Inc., G.R. No. 192650, 24 Oct.
NOTE: The power to repeal, alter, or supplement
2012)
rules concerning pleading, practice and procedure
in all courts belongs exclusively to the Supreme
Rule on Uniform Interpretation
Court.
The principle expressed in the maxim interpretare

Q: Congress enacted a law that contains a
et concordare legibus est optimus interpretendi, or
provision prohibiting plea-bargaining in drug-
that every statute must be so construed and
related cases. Is the provision valid?
harmonized with other statutes as to form a
uniform system of jurisprudence applies in
A: NO. Plea bargaining is a rule of procedure. As
interpreting both sets of Rules such as the 1997
such, the provision prohibiting it that is contained in
Rules on Civil Procedure and the Rule on Summary
a statute is unconstitutional for being contrary to
Procedure regarding the finality of judgments.
the rule-making authority of the Supreme Court.
(Banares II v. Balising, G.R. No. 132624, 13 Mar. 2000;
Only the Supreme Court can promulgate rules on
Herrera, 2007)
pleadings, practice and procedure, not Congress
through passage of a law. (Estipona v. Lobrigo, G.R.
No. 226679, 15 Aug. 2017)

Remedial Law
Limitations on the Rule-Making Power of the exercise of its equity jurisdiction. (CTMC Int’l v.
Supreme Court (SI-U-DIM) Bhagis Int’l Corp., G.R. No. 170488, 10 Dec. 2012)
1. The rules shall provide a Simplified and XPN to the XPN: To relieve a litigant of an injustice
Inexpensive procedure for the speedy commensurate with his failure to comply with the
disposition of cases; prescribed procedure. The mere invocation of
2. The rules must be Uniform for all the courts of substantial justice is not a magical incantation that
the same grade; and will automatically compel the Court to suspend
3. The rules must not Diminish, Increase or procedural rules. (Co-Unjieng v. C.A., G.R. No. 139596,
Modify substantive rights. (Sec. 5 (5), Art. VIII, 24 Jan. 2006)
1987 Constitution)
Parties praying for the liberal interpretation of the
Power of the Supreme Court to Amend and rules must be able to hurdle that heavy burden of
Suspend Procedural Rules proving that they deserve an exceptional treatment.
It was never the Court’s intent “to forge a bastion for
GR: Compliance with procedural rules is the general erring litigants to violate the rules with impunity.”
rule, and abandonment thereof should only be done (Prieto v. Alpadi Development Corp., G.R. No. 191025,
in the most exceptional circumstances. (Pilapil v. 31 Jul. 2013)
Heirs of Briones, G.R. No. 150175, 10 Mar. 2006)
Reasons that would warrant the suspension of
NOTE: The courts have the power to relax or the Rules of Procedure (E-Me-C-L-O-T)
suspend technical or procedural rules or to except a
case from their operation when compelling reasons 1. The Existence of special or compelling
so warrant or when the purpose of justice requires circumstances;
it. (Commissioner of Internal Revenue v. Migrant 2. The Merits of the case;
Pagbilao Corporation, G.R. No. 159593, 12 Oct. 2006) 3. A Cause not entirely attributable to the fault or
negligence of the party favored by the
XPN: The power of the Supreme Court to suspend suspension of rules;
its own rules or to except a particular case from its 4. A Lack of any showing that the review sought is
operations whenever the purposes of justice merely frivolous and dilatory;
require cannot be questioned. The rules of 5. The Other party will not be unjustly prejudiced
procedure should be viewed as mere tools designed thereby (Sarmiento v. Zaratan, G.R. No. 167471,
to facilitate the attainment of justice. Their strict 5 Feb. 2007; and
and rigid application, which would result in 6. Transcendental matters of life, liberty or state
technicalities that tend to frustrate rather than security. (Mindanao Savings and Loan
promote substantial justice, must always be Association v. Vda. de Flores, G.R. No. 142022, 7
avoided. (De Guzman v. Sandiganbayan, G.R. No. Sept. 2005)
103276, 11 Apr. 1996)
Power to Stay Proceedings and Control its
The power to suspend or even disregard rules can Processes
be so pervasive and compelling as to alter even that
which the Supreme Court itself had already The power to stay proceedings is incidental to the
declared to be final. (Apo Fruits Corporation v. Land power inherent in every court to control the
Bank of the Philippines, G.R. No. 154195, 12 Oct. disposition of the cases on its dockets, considering
2010) its time and effort, and that of counsel and the
litigants. But if proceedings must be stayed, it must
Where strong considerations of substantive justice be done in order to avoid multiplicity of suits and
are manifest on the petition, the strict application of prevent vexatious litigations, conflicting judgments,
the rules of procedure may be relaxed, in the and confusion between litigants and courts.

2022 GOLDEN NOTES
General Principles
(Security Bank Corp. v. Judge Victorio, G.R. No. incomplete or disputed facts. This consequently
155099, 31 Aug. 2005) hampers the resolution of controversies before the
Court. Without the necessary facts, the Court cannot
authoritatively determine the rights and obligations
C. PRINCIPLE OF JUDICIAL HIERARCHY of the parties. The case would then become another
addition to the Court's already congested dockets;
and
The principle provides that lower courts shall

2. The requirements of due process
initially decide a case before it is considered by a
higher court. A higher court will not entertain direct
By directly filing a case before the Court, litigants
resort to it unless the redress desired cannot be
necessarily deprive themselves of the opportunity
obtained in the appropriate courts. (Santiago v.
to completely pursue or defend their causes of
Vasquez, G.R. Nos. 99289-90, 27 Jan. 1993)
actions. Their right to due process is effectively
undermined by their own doing. (Ibid.)
Pursuant to this principle, a case must be filed first
before the lowest court possible having the
NOTE: The doctrine of hierarchy of courts ensure
appropriate jurisdiction, except if one can advance
that every level of the judiciary performs its
a special reason which would allow a party a direct
designated roles in an effective and efficient
resort to a higher court. (Riano, 2019)
manner. (Maza v. Turla, G.R. No. 187094, 15 Feb.
2017, citing The Diocese of Bacolod v. COMELEC, G.R.
Constitutional Imperative
No. 206728, 21 Jan. 2015)
This doctrine is not mere policy, rather, it is a

Trial courts do not only determine the facts from the
constitutional filtering mechanism designed to
evaluation of the evidence presented before them.
enable the Court to focus on the more fundamental
They are likewise competent to determine issues of
and essential tasks assigned to it by the highest law
law which may include the validity of an ordinance,
of the land. (Gios-Samar, Inc. v. Department of
statute, or even an executive issuance in relation to
Transportation and Communications and Civil
the Constitution.
Aviation Authority of the Philippines, G.R. No. 217158,
12 Mar. 2019)
To effectively perform these functions, they are
territorially organized into regions and then into
Strict observance of the doctrine of hierarchy of
branches. Their writs generally reach within those
courts should not be a matter of mere policy. It is a
territorial boundaries. Necessarily, they mostly
constitutional imperative given:
perform the all-important task of inferring the facts
from the evidence as these are physically presented
1. The structure of our judicial system
before them. In many instances, the facts occur
within their territorial jurisdiction, which properly
The doctrine of hierarchy of courts recognizes the
present the 'actual case' that makes ripe a
various levels of courts in the country as they are
determination of the constitutionality of such
established under the Constitution and by law, their
action. The consequences, of course, would be
ranking and effect of their rulings in relation with
national in scope. (Ha Datu Tawahig, et al v. Hon.
one another, and how these different levels of court
Cebu City Prosecutor I Lineth Lapinid, et al., G.R. No.
interact with one another. It determines the venues
221139, 20 Mar. 2019, citing The Diocese of Bacolod
of appeals and the appropriate forum for the
v. COMELEC)
issuance of extraordinary writs.
Filtering Mechanism (In-O-De)

Accordingly, when litigants seek relief directly from
the Court, they bypass the judicial structure and
The doctrine of hierarchy of courts operates to:
open themselves to the risk of presenting

Remedial Law
6. The filed petition reviews the act of a

1. Prevent Inordinate demands upon the Court's constitutional organ;
time and attention which are better devoted to 7. No other plain, speedy, and adequate remedy
those matters within its exclusive jurisdiction; in the ordinary course of law;
2. Prevent further Overcrowding of the Court's 8. The petition includes questions that are
docket; and dictated by public welfare and the
3. Prevent the inevitable and resultant Delay, advancement of public policy, or demanded
intended or otherwise, in the adjudication of by the broader interest of justice;
cases which often have to be remanded or 9. The orders complained of were found to be
referred to the lower court as the proper forum patent nullities;
under the rules of procedure, or as the court 10. The appeal was considered as clearly an
better equipped to resolve factual questions. inappropriate remedy;
11. When analogous, exceptional and compelling
Exceptions to the Doctrine of Hierarchy of circumstances called for and justified the
Courts (2017 BAR) immediate and direct handling of the case
(Republic v. Caguioa, et al., G.R. No. 174385, 20
In several cases, the court has allowed direct Feb. 2013)
invocation of the SC’s original jurisdiction on the
following grounds: Common Denominator
1. When there are genuine issues of A careful examination of the jurisprudential bases of
constitutionality that must be addressed at the exceptions would reveal a common
the most immediate time (The Diocese of denominator – the issues for resolution of the
Bacolod v. COMELEC, supra.) Court are purely legal. (Gios-Samar, Inc. v.
Department of Transportation and Communications
NOTE: A direct resort to the Supreme Court and Civil Aviation Authority of the Philippines, supra.)
includes availing of the remedies of certiorari and
prohibition to assail the constitutionality of NOTE: The SC may disregard the principle of
actions of both legislative and executive branches hierarchy of courts if warranted by the nature and
of the government; importance of the issues raised in the interest of
speedy justice and to avoid future litigations. (Riano,
2. When the issues involved are of 2019)
transcendental importance
Failure to Comply with the Doctrine
NOTE: In these cases, the imminence and clarity
of the threat to fundamental constitutional rights Failure to comply with the Principle of Hierarchy of
outweigh the necessity for prudence. The Courts is sufficient cause for the dismissal of the
doctrine relating to constitutional issues of petition. (Gios-Samar, Inc. v. Department of
transcendental importance prevents courts from Transportation and Communications and Civil
the paralysis of procedural niceties when clearly Aviation Authority of the Philippines, supra.)
faced with the need for substantial protection;
Q: Senator Angara filed a Complaint for Damages
3. Cases of first impression (Ha Datu Tawahig, et against Palafox Jr. alleging that Palafox Jr.
al v. Hon. Cebu City Prosecutor I Lineth Lapinid, authorized an unsigned letter containing
et al., supra.); defamatory statements against him. Palafox Jr.
4. The constitutional issues raised are better filed a motion to dismiss on the ground of
decided by the Supreme Court; improper venue alleging that the Complaint was
5. Exigency in certain situations or when time is filed in the RTC of Pasay City, instead of Makati
of the essence; City where both parties reside. The Regional

2022 GOLDEN NOTES
General Principles
Trial Court denied his motion and held that courts. (Pacific Ace Finance Ltd. [PAFIN] v. Eiji
venue was proper since the filing of a separate Yanagisawa, G.R. No. 175303, 11 Apr. 2012)
civil action for damages where the public officer
holds office is allowed under Article 360. XPN: The doctrine does not apply where a third-
Aggrieved, Palafox Jr., filed a Petition for party claimant is involved. This is in consonance
Certiorari before the Supreme Court assailing with the well-established principle that no man
the order of the RTC. Is the petition meritorious? shall be affected by any proceeding to which he is a
stranger. (Sps. Crisologo v. Omelio, A.M. No. RTJ-12-
A: NO. The petition violates the hierarchy of courts. 2321, 03 Oct. 2012, citing Sec. 16, Rule 39, ROC, as
The Court may only act when absolutely necessary amended, and quoting Naguit v. CA, G.R. No. 137675,
or when serious and important reasons exist to 05 Dec. 2000)
justify an exception. Further, the Court held that
such serious and important reasons must be clearly Rationale
stated in the petition.
The rule is founded on the concept of jurisdiction: a
Here, Palafox, Jr. filed his Petition directly to the court that acquires jurisdiction over the case and
Supreme Court despite the concurrent jurisdiction renders judgment therein has jurisdiction over its
of the appellate court. Significantly, he did not judgment, to the exclusion of all other coordinate
bother to provide any reason or explanation to courts, for its execution and overall, its incidents,
justify his non-compliance to the rule on hierarchy and to control the conduct of ministerial officers
of courts. This constitutes a clear disregard of the acting in connection with this judgment. (United
hierarchy of courts and merits the dismissal of the Alloy vs UCPB, G.R. No. 179257, 23 Nov. 2015)
Petition. (Felino A. Palafox, Jr. v. Francisco Mendiola,
G.R No. 209551, 15 Feb. 2021) NOTE: The doctrine of non-interference likewise
applies with equal force to administrative bodies.
(Philippine Sinter Corporation v. Cagayan Electric
D. DOCTRINE OF NON-INTERFERENCE OR Power and Light Co., Inc., G.R. No. 127371, 25 Apr.
DOCTRINE OF JUDICIAL STABILITY 2002)
GR: Courts of equal and coordinate jurisdiction E. JURISDICTION

cannot interfere with each other’s orders. (Riano,
2019, citing Lapu-Lapu Development and Housing
Corporation v. Group Management Corporation, G.R. The power and authority of a court to try, hear,
Nos. 167000 and 169971, 8 Jun. 2011) decide a case and the power to enforce its
determination. (21 CJS, 9; Echagaray v. Secretary of
The principle also bars a court from reviewing or Justice, G.R. No. 132601, 19 Jan. 1999)
interfering with the judgment of a co-equal court
over which it has no appellate jurisdiction. (Riano, Jurisdiction is conferred by Substantive Law
2019)
Only jurisdiction over the subject matter is
No court can interfere by injunction with the conferred by substantive law. Jurisdiction over the
judgments or orders of another court of concurrent parties, issues and res is governed by procedural
jurisdiction. (Atty. Cabili v. Judge Balindog, A.M. No. laws. (Riano, 2019)
RTJ-10-2225, 6 Sept. 2011)
1. ORIGINAL vs. APPELLATE
Even in case of concurrent jurisdiction, the court
first acquiring jurisdiction excludes the other Original jurisdiction is the power of the Court to
take judicial cognizance of a case instituted for

Remedial Law
judicial action for the first time under conditions NOTE: Where there is a violation of basic
provided by law. Appellate jurisdiction is the constitutional rights, courts are ousted from
authority of a Court higher in rank to re-examine the their jurisdiction. The violation of a party’s due
final order or judgment of a lower Court which tried process raises a serious jurisdictional issue
the case now elevated for judicial review. (Garcia v. which cannot be glossed over or disregarded at
De Jesus, G.R. Nos. 88158 & 97108-09, 04 Mar. 1992) will. Where the denial of the fundamental right
is apparent, a decision rendered in disregard of
2. GENERAL vs. SPECIAL that right is void for lack of jurisdiction. (Apo
Cement Corporation v. Mingson Industries
Courts of general jurisdiction are those with Corporation, G.R. No. 206728, 12 Nov. 2014)
competence to decide on their own jurisdiction and
take cognizance of all cases, civil and criminal, of a 4. Where the statute expressly provides, or is
particular nature, while courts of special construed to the effect that it is intended to
jurisdiction are those which have jurisdiction only operate as to actions pending before its
for a particular purpose or are clothed with special enactment;
powers for the performance of special duties
beyond which they have no authority of any kind. 5. When the proceedings in the court acquiring
(Riano, 2019) jurisdiction is terminated, abandoned or
declared void;
3. EXCLUSIVE vs. CONCURRENT
6. Once appeal has been perfected; and
Exclusive jurisdiction is that possessed by a court to
the exclusion of others, while concurrent 7. Curative statutes. (Herrera, 2007)
jurisdiction is the power of different courts to take
cognizance of the same subject matter. (Riano, NOTE: The rule of adherence of jurisdiction
2019) until a cause is finally resolved or adjudicated
does not apply when the change in jurisdiction
4. CONTINUITY OF JURISDICTION is curative in character. (Abad, et al. v. RTC, G.R.
No. L-65505, 12 Oct. 1987)
GR: Jurisdiction, once attached, cannot be ousted by
subsequent happenings or events although of a Effect of Retroactivity of Laws on Jurisdiction
character which would have prevented jurisdiction
from attaching in the first instance, and the court Jurisdiction being a matter of substantive law, the
retains jurisdiction until it finally disposes of the established rule is that the statute in force at the
case. (Aruego, Jr., v. CA, G.R. No. 112193, 13 Mar. time of the commencement of the action determines
1996) jurisdiction. (Herrera, 2007)
XPNs: As a consequence, jurisdiction is not affected by a

1. Where a subsequent statute expressly new law placing a proceeding under the jurisdiction
prohibits the continued exercise of of another tribunal.
jurisdiction;
2. Where the law penalizing an act which is XPNs:

punishable is repealed by a subsequent law; 1. Where there is an express provision in the
3. When accused is deprived of his constitutional statute; and
right such as where the court fails to provide 2. The statute is clearly intended to apply to
counsel for the accused who is unable to obtain actions pending before its enactment. (PNB v.
one and does not intelligently waive his Tejano, G.R. No. 173615, 16 Oct. 2009)
constitutional right;

2022 GOLDEN NOTES
General Principles
5. ORIGINAL JURISDICTION OF VARIOUS PHILIPPINE COURTS
RTCs are courts of general jurisdiction.
1. Boundary dispute NOTE: Since there is no legal provision specifically governing jurisdiction over
between boundary disputes between a municipality and an independent component city
municipalities of the same province, it follows that RTCs have the power and authority to hear
and determine such controversy. (Municipality of Kananga v. Madrona, G.R. No.
141375, 30 Apr. 2003)
RTC because it is incapable of pecuniary estimation. It does not involve the
2. Expropriation recovery of sum of money. Rather, it deals with the exercise by the government
of its authority and right to take property for public use.
GR: An action for damages for abuse of right as an incident to dismissal is within
the exclusive jurisdiction of the labor arbiter.
XPNs:
1. The labor arbiter has no jurisdiction for claims of damages based on quasi-
delict which has no reasonable connection with the employer-employee
relations claims under the Labor Code. (Ocheda v. CA, G.R. No. 85517, 16 Oct.
3. Labor dispute
1992)
2. It is the regular courts that has jurisdiction where no employer-employee

relationship exists between the parties and no issue involved may be resolved
by reference to the Labor Code, other labor statutes or any collective bargaining
agreement. (Jaguar Security Investigation Agency v. Sales, G.R. No. 162420, 22 Apr.
2008)
The MTC has exclusive original jurisdiction. Under the Revised Rules on
Summary Procedure, MTCs, MTCCs, and MCTCs have jurisdiction over all cases
4. Forcible entry and
of forcible entry and unlawful detainer, irrespective of the amount of damages
unlawful detainer
or unpaid rentals sought to be recovered. (Sec. 1(A)(1), Revised Rules on Summary
Procedure)
5. Authority to conduct
administrative
investigations over It is entrusted to the Secretary of Local Government and concurrent with
local elective the Ombudsman upon enactment of R.A. No. 6770. There is nothing in the Local
officials and to Government Code of 1991 to indicate that it has repealed, whether expressly or
impose preventive impliedly, the pertinent provisions of the Ombudsman Act. (Hagad v. Dadole, G.R.
suspension over No. 108072, 12 Dec. 1995)
elective provincial or
city officials
The Ombudsman must yield to the Division School Superintendent in the
investigation of administrative charges against public school teachers.
6. Public school
teachers XPN: If the school superintendent is the complainant or an interested party, all
the members of the committee shall be appointed by the Secretary of Education.
(Ombudsman v. Galicia, G.R. No. 167711, 10 Oct. 2008)
7. Enforcement of a COA has the primary jurisdiction to pass upon the money claim. It is within
money claim against the COA's domain to pass upon money claims against the government or any

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a local government subdivision thereof as provided for under Sec. 26 of the Government Auditing
unit Code of the Philippines. Courts may raise the issue of primary jurisdiction sua
sponte (on its own will or motion; means to act spontaneously without
prompting from another party) and its invocation cannot be waived by the
failure of the parties to argue it as the doctrine exists for the proper distribution
of power between judicial and administrative bodies and not for the convenience
of the parties. (Euro-Med Laboratories, Phil., Inc. v. Province of Batangas, G.R. No.
148106, 17 Jul. 2006)
SUPREME COURT
Cases to be decided by Supreme Court En Banc
1. All cases involving the constitutionality of a treaty, international or executive agreement, or law (Sec. 4(2),
Art. VIII, 1987 Constitution); and
2. All other cases which under the Rules of Court are required to be heard en banc (Ibid.);
3. All cases involving the constitutionality, application or operation of presidential decrees, proclamations,
orders, instructions, ordinances and other regulations (Ibid.);
4. Cases where the required number of votes in a division is not obtained (Sec. 4(3), Art. VIII, 1987 Constitution);
5. Cases involving a modification or reversal of a doctrine or principle laid down previously in a decision
rendered en banc (Ibid.);
6. Cases involving the discipline of judges of lower courts (Sec. 11, Art. VIII, 1987 Constitution); and
7. Contests relating to the election, returns, and qualifications of the President or Vice-president. (Sec. 4, Art.
VII, 1987 Constitution)
CIVIL CASES CRIMINAL CASES

Exclusive Original
Petitions for issuance of writs of certiorari,

prohibition and mandamus against the following:
1. Court of Appeals;
2. Court of Tax Appeals;
3. Commission on Elections En Banc;
4. Commission on Audit;
5. Sandiganbayan.
NOTE: The certiorari jurisdiction of the SC has been

1. Court of Appeals;
rigorously streamlined, such as that Rule 65 admits
2. Sandiganbayan.
cases based on the specific grounds provided therein.
The Rule applies if there is no appeal or any other
plain, speedy, and adequate remedy in the ordinary
course of law. The independent action for certiorari
will lie only if grave abuse of discretion is alleged and
proven to exist. (Lagua v. CA, G.R. No. 173390, 27 Jun.
2012)

2022 GOLDEN NOTES
General Principles
Appellate
1. In cases where the CA imposes reclusion

perpetua, life imprisonment or a lesser penalty,
the judgment may be appealed to the SC by
notice of appeal filed with the CA;
2. Automatic review for cases of death penalty

rendered by the CA;
NOTE: Where the judgment also imposes a lesser

penalty for offenses committed on the same
1. Petitions for review on certiorari against:
occasion or which arose out of the same
occurrence that gave rise to the more severe
a. CA;
offense for which the penalty of death is
b. CTA en banc (Sec. 11, R.A. No. 9282) (2006
imposed, and the accused appeals, the automatic
BAR);
review from the CA to the SC shall include such
c. Sandiganbayan;
lesser offense.
d. RTC, in cases involving:
3. Petition for review on certiorari (Rule 45) from

i. If no question of fact is involved and the
the Sandiganbayan if penalty is less than death,
case involves:
life imprisonment or reclusion perpetua in
criminal cases, and, in civil cases;
a) Constitutionality or validity of
treaty, international or executive
4. Notice of appeal from the Sandiganbayan if it
agreement, law, presidential
imposes life imprisonment or reclusion perpetua
decree, proclamation, order,
or where a lesser penalty is imposed involving
instruction, ordinance or
offenses committed on the same occasion or
regulation;
which arose out of the same occurrence that
b) Legality of tax, impost,
gave rise to the more serious offense for which
assessments, or toll, or penalty in
the penalty of death, reclusion perpetua of life
relation thereto; or
imprisonment is imposed;
c) Cases in which jurisdiction of
lower court is in issue;
5. Automatic review of death penalty imposed by
the Sandiganbayan in the exercise of its original
ii. All cases in which only errors or
jurisdiction;
questions of law are involved;
6. Criminal cases from the Ombudsman are

2. Special civil action of certiorari – filed within 30
appealable to the Supreme Court (Sec. 14, R.A.
days against the COMELEC/COA.
No. 6770) (2006 BAR);
7. Automatic review whenever the

Sandiganbayan, in the exercise of its appellate
jurisdiction, finds that the penalty of death,
reclusion perpetua or life imprisonment should
be imposed; and
8. Appeals from RTC in which only errors or

questions of law are involved.

Remedial Law
Concurrent with CA
1. Petitions for issuance of writs of certiorari,
a. NLRC under the Labor Code;
NOTE: The petitions must first be filed

with the CA; otherwise, they shall be
dismissed (St. Martin Funeral Homes v. Petitions for issuance of writs of certiorari,
CA, G.R. No. 130866, 16 Sept. 1998). prohibition and mandamus against the RTC and
lower courts.
b. Civil Service Commission;
c. Quasi-judicial agencies (should be filed
with the CA first);
d. RTC and lower courts;
2. Petitions for issuance of writ of Kalikasan

(Sec. 3, Rule 7, A.M. No. 09-6-8-SC)
Concurrent with CA and RTC
1. Petitions for habeas corpus and quo warranto; and
prohibition and mandamus against the lower courts
prohibition and mandamus against the lower
or bodies.
courts or bodies.
Concurrent with CA, SB and RTC
1. Petitions for the issuance of writ of amparo;
and Petitions for the issuance of writ of amparo and writ
2. Petitions for writ of habeas data, where the of habeas data.
action involves public data or government office.
Concurrent with RTC
Actions affecting ambassadors and other public
ministers and consuls.
Concurrent with SB
Petitions for mandamus, prohibition, certiorari,
injunctions and ancillary writs in aid of its appellate
jurisdiction including quo warranto arising or that
may arise in cases filed under E.O. Nos. 1, 2, 14 and
14-A.

2022 GOLDEN NOTES
General Principles
COURT OF APPEALS

Exclusive Original
1. Actions for annulment of judgments of RTC
Actions for annulment of judgments of RTC based (Sec. 9, B.P. No. 129);
upon extrinsic fraud or lack of jurisdiction. (Sec. 9, B.P. 2. Crimes of Terrorism under the Human
No. 129; Rule 47, ROC, as amended) Security Act of 2007 or
R.A. No. 9372.
Appellate
Judgments or decisions of RTC via notice of appeal
(except those appealable to the SC or
Sandiganbayan):
1. Final judgments, decisions, resolutions, orders,
awards of: 1. Exercising its original jurisdiction;
2. Exercising its appellate jurisdiction; and
a. RTC (original or appellate jurisdiction); 3. Where the imposable penalty is:
b. Family Courts; RTC on the questions of
constitutionality, validity of tax, jurisdiction a. Life imprisonment or reclusion perpetua; or
involving questions of fact, which should be b. A lesser penalty for offenses committed on
appealed first to the CA; the same occasion or which arose from the
c. Appeals from RTC in cases appealed from same occurrence that gave rise to the
MTCs which are not a matter of right; offense punishable reclusion perpetua or life
imprisonment (Sec. 3, Rule 122, ROC, as
2. Appeal from MTC in the exercise of its delegated amended).
jurisdiction (R.A. No. 7691);
3. Appeals from Civil Service Commission; Automatic review in cases of death penalty rendered
4. Appeals from quasi-judicial agencies under Rule by the RTC, in which case, it may decide on whether
43; or not to affirm the penalty of death. If it affirms the
5. Appeals from the National Commission on penalty of death, it will render a decision but will not
Indigenous Peoples (NCIP); and enter the judgment because it will then be forwarded
6. Appeals from the Office of the Ombudsman in to the SC.
administrative disciplinary cases. (Mendoza-Arce
v. Office of the Ombudsman, G.R. No. 149148, 05 NOTE: Death penalty imposed by the RTC is elevated
Apr. 2002) (2006 BAR) to the CA by automatic review while death penalty
imposed by the Sandiganbayan whether in its
original or appellate jurisdiction is elevated to the SC
for automatic review.
Concurrent with SC
a. NLRC under the Labor Code;

b. Civil Service Commission;
prohibition and mandamus against the RTCs and
c. Quasi-judicial agencies; and
lower courts
d. RTCs and other lower courts;
2. Petitions for issuance of writ of Kalikasan.

(Sec. 3, Rule 7, A.M. No. 09-6-8-SC)

Remedial Law
Concurrent with SC and RTC

1. Petitions for habeas corpus and quo warranto; and
2. Petitions for the issuance of writs of certiorari,
prohibition and mandamus against the lower courts
prohibition and mandamus against the lower
or bodies
courts.
Concurrent with SC, SB and RTC
1. Petitions for the issuance of writ of amparo;
Petitions for the issuance of writ of amparo and writ
2. Petition for writ of habeas data, where the action
of habeas data
involves public data or government office.

2022 GOLDEN NOTES
General Principles
COURT OF TAX APPEALS
TAX CASES CRIMINAL CASES

Exclusive Original
All criminal cases arising from violation of the NIRC,
of the Tariff and Customs Code and other laws, part
In tax collection cases involving final and executory of laws, or special laws administered by the BIR or
assessments for taxes, fees, charges and penalties the BOC where the principal amount of taxes and
where the principal amount of taxes and fees, fees, exclusive of charges and penalties claimed is
exclusive of charges and penalties claimed is not less less that P1,000,000 or where there is no specified
than P1,000,000. amount claimed (the offenses or penalties shall be
tried by the regular courts and the jurisdiction of the
CTA shall be appellate).
,Appellate
1. Over appeals from the judgment, resolutions
or orders of the RTC in tax cases originally
decided by them, in their respective
In tax collection cases involving final and executory
territorial jurisdiction.
assessments for taxes, fees, charges and penalties
2. Over petitions for review of the judgments,
where the principal amount of taxes and fees,
resolutions or orders of the RTC in the
exclusive of charges and penalties claimed is less than
exercise of their appellate jurisdiction over
P1,000,000 tried by the proper MTC, MeTC and RTC.
tax cases originally decided by the MeTCs,
MTCs, and MCTCs in their respective
jurisdiction.
Exclusive Appellate Jurisdiction to Review by Appeal from Commissioner of Internal Revenue
1. Decisions 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 BIR;
2. Inaction by CIR in cases involving disputed assessments, refunds of IR taxes, fees or other charges,
penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR,
where the NIRC or other applicable law provides a specific period of action, in which case the inaction
shall be deemed an implied denial via Petition for Review under Rule 42.
Exclusive Appellate Jurisdiction to Review by Appeal from RTC
Decisions, orders or resolutions in local tax cases originally decided or resolved by them in the exercise of
their original or appellate jurisdiction via Petition for Review under Rule 43.
Exclusive Appellate Jurisdiction to Review by Appeal from Commissioner of Customs
1. Decisions in cases involving liability for customs duties, fees or other charges, seizure, detention or
release of property affected, fines, forfeitures or other penalties in relation thereto; or
2. Other matters arising under the Customs Law or other laws, part of laws or special laws administered
by BOC (via Petition for Review under Rule 42, ROC, as amended).
Exclusive Appellate Jurisdiction to Review by Appeal from Central Board of Assessment Appeals
Decisions 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 via Petition for Review
under Rule 43.
Exclusive Appellate Jurisdiction to Review by Appeal from Secretary of Finance
Decision on customs cases elevated to him automatically for review from decisions of the Commissioner of
Customs which are adverse to the government under Sec. 2315 of the TCC via Petition for Review under Rule
42.

Remedial Law
Exclusive Appellate Jurisdiction to Review by Appeal from Secretary of Trade and Industry and the
Secretary of Agriculture
Decisions of Secretary of Trade and Industry in the case of non-agricultural product, commodity or article,
and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping
duties and countervailing duties under Secs. 301 and 302, respectively, of the TCC, and safeguard measures
under RA 8800, where either party may appeal the decision to impose or not to impose said duties (via Petition
for Review under Rule 42).

2022 GOLDEN NOTES
General Principles
SANDIGANBAYAN
CRIMINAL CASES
Exclusive Original
A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices
Act, Republic Act No. 1379, 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:
1. 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 (R.A.
No. 6758), specifically including:
a. Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial

treasurers, assessors, engineers, and other provincial department heads:
b. City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors,
engineers, and other city department heads;
c. Officials of the diplomatic service occupying the position of consul and higher;
d. Philippine Army and Air Force colonels, naval captains, and all officers of higher rank;
e. Officers of the Philippine National Police while occupying the position of provincial director and
those holding the rank of senior superintendent and higher;
f. City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of
the Ombudsman and special prosecutor;
g. Presidents, directors or trustees, or managers of government-owned or controlled corporations,
state universities or educational institutions or foundations.
2. Members of Congress and officials thereof classified as Grade ‘27’ and higher under the Compensation
and Position Classification Act of 1989;
3. Members of the judiciary without prejudice to the provisions of the Constitution;
4. Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of the
Constitution; and
5. All other national and local officials classified as Grade ‘27’ and higher under the Compensation and
Position Classification Act of 1989.
B. 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.
C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986.
NOTE: RTC shall have exclusive original jurisdiction where the information:
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 P1,000,000. (Sec.4, P.D. 1606, as amended by R.A. No. 10660)
Exclusive original jurisdiction thereof shall be vested in the proper RTC, MeTC, MTC and MCTC, as the case
may be, in cases where none of the accused are occupying positions corresponding to Salary Grade ‘27’ or
higher, or military and PNP officers mentioned above. (Sec.4, P.D. 1606, as amended by R.A No. 10660)

Remedial Law
Appellate
Final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original
jurisdiction or of their appellate jurisdiction as herein provided.
Concurrent with SC
Petitions for mandamus, prohibition, certiorari, injunctions and ancillary writs in aid of its appellate
jurisdiction including quo warranto arising or that may arise in cases filed under E.O. Nos. 1, 2, 14 and 14-A.
Concurrent with SC, CA and RTC
Petitions for the issuance of writ of amparo and writ of habeas data.

2022 GOLDEN NOTES
General Principles
REGIONAL TRIAL COURT

Exclusive Original
1. In all civil actions in which the subject of the
1. Criminal cases not within exclusive
litigation is incapable of pecuniary estimation;
jurisdiction of any court, tribunal or body (Sec.
2. In all civil actions which involve the title to, or
20, B.P. No. 129):
possession of, real property, or any interest
a. Cases where the penalty provided by
therein, where the assessed value of the
law exceeds 6 years imprisonment
property involved exceeds P 400,000 except
irrespective of the fine (R.A. No. 7691);
actions for forcible entry into and unlawful
and
detainer of lands or buildings, original
b. Cases not falling within the exclusive
jurisdiction over which is conferred upon the
original jurisdiction of the
MeTCs, MTCs, and MCTCs; (BP 129, as amended
Sandiganbayan where the imposable
by R.A. No. 11576)
penalty is imprisonment more than 6
3. In all actions in admiralty and maritime
years and none of the accused is
jurisdiction where the demand or claim exceeds
occupying positions classified as
P 2,000,000; (B.P. No. 129, as amended by R.A. No.
“Grade 27” and higher (Sec. 4, P.D. No.
11576)
1606, as amended by R.A. No. 8249).
4. In all matters of probate, both testate and
intestate, where the gross value of the estate
2. Cases where the only penalty provided by
exceeds P 2,000,000; (B.P. No. 129, as amended
law is a fine exceeding P 4,000;
by R.A. No. 11576)
5. In all actions involving the contract of marriage
3. Other laws which specifically lodge
and marital relations;
jurisdiction in the RTC:
6. In all cases not within the exclusive jurisdiction
a. Law on written defamation or libel;
of any court, tribunal, person or body exercising
b. Decree on Intellectual Property; and
jurisdiction of any court, tribunal, person or
c. Violations of Dangerous Drugs Act
body exercising judicial or quasi-judicial
regardless of the imposable penalty
functions;
except when the offender is under 16
7. In all civil actions and special proceedings falling
and there are Juvenile and Domestic
within the exclusive original jurisdiction of a
Relations Court in the province;
Juvenile and Domestic Relations Court and of the
Court of Agrarian Relations as now provided by
4. Cases falling under the Family Courts in
law; and
areas where there are no Family Courts (Sec. 24,
8. In all other cases in which the demand, exclusive
B.P. No. 129); and
of interest, damages of whatever kind, attorney’s
fees, litigation expenses, and costs or the value of
5. Election offenses (Omnibus Election Code)
the property in controversy exceeds P
even if committed by an official with salary grade
2,000,000. (B.P. No. 129, as amended by R.A. No.
of 27 or higher.
11576)
Appellate
GR: All cases decided by lower courts in their respective territorial jurisdictions.
XPN: Decisions of lower courts in the exercise of delegated jurisdiction. (Sec. 22, B.P. No. 129)
Concurrent with SC, SB and CA

1. Writ of amparo; Petitions for the issuance of writs of amparo and
2. Writ of habeas data. habeas data.

Remedial Law
Concurrent with SC
Actions affecting ambassadors and other public
ministers and consuls. (Sec. 21(2), B.P. No. 129)
Concurrent with SC and CA
1. Certiorari, prohibition and mandamus against
lower courts and bodies;
2. Habeas corpus and quo warranto.
Concurrent with MTC
Cases involving enforcement or violations of
environmental and other related laws, rules and
regulations. (Sec. 2, Rule 1, A.M. No. 09-6-8-SC)
Special Jurisdiction
Supreme Court may designate certain branches of RTC to try exclusively:
1. Criminal cases;
2. Juvenile and domestic relations cases;
3. Agrarian cases;
4. Urban land reform cases not falling within the jurisdiction of any quasi-judicial body; and
5. Other special cases as the SC may determine in the interest of a speedy and efficient administration
of justice. (Sec. 23, B.P. No. 129)
Test to determine whether an action is capable Intra-corporate Controversies that are within
of pecuniary estimation the jurisdiction of the Special Commercial
Courts
The criterion is the nature of the principal action or
the remedy sought. If it is primarily for the recovery 1. Devices or schemes employed by, or any act of,
of a sum of money, the claim is considered capable the board of directors, business associates,
of pecuniary estimation, and whether jurisdiction is officers or partners, amounting to fraud or
in the MTCs or in the RTCs would depend on the misrepresentation which may be detrimental to
amount of the claim. the interest of the public and/or of the
stockholders, partners, or members of any
However, where the basic issue is something other corporation, partnership, or association;
than the right to recover a sum of money, where the
money claim is purely incidental to, or a 2. Controversies arising out of intra-corporate,
consequence of, the principal relief sought like partnership, or association relations, between
specific performance suits and in actions for and among stockholders, members, or
support, or for annulment of a judgment or associates; and between, any or all of them and
foreclosure of mortgage, such actions are incapable the corporation, partnership, or association of
of pecuniary estimation, and are cognizable which they are stockholders, members, or
exclusively by the RTCs. (Barangay Piapi v. Talip, associates, respectively;
G.R. No. 138248, 07 Sept. 2005)
3. Controversies in the election or appointment of
directors, trustees, officers, or managers of
corporations, partnerships, or associations;
4. Derivative suits; and
5. Inspection of corporate books. (Rule 1, IRR of

R.A. No. 8799).

2022 GOLDEN NOTES
General Principles
FAMILY COURTS

Exclusive Original
1. Where one or more of the accused is/are below

1. Petitions for guardianship, custody of children,
18 years of age but not less than 9 years of age;
habeas corpus in relation to minor;
2. When one or more of the victims is a minor at the

2. Petitions for adoption of children and its
time of the commission of the offense (R.A. No.
revocation;
8369, Act Establishing the Family Courts);
3. Complaints for annulment and declaration of

3. Cases against minors cognizable under the
nullity of marriage and those relating to marital
Dangerous Drugs Act, as amended;
status and property relations of spouses or those
living together under different status and
4. Violations of R.A. No. 7610 or the Special
agreements; and petitions for dissolution of
Protection of Children Against Child Abuse,
conjugal partnership of gains;
Exploitation and Discrimination Act, as amended
by R.A. No. 7658; and
4. Petitions for support and/or acknowledgment;
5. Cases of domestic violence against:

5. Summary judicial proceedings under the Family
Code of the Philippines;
a. Women – involving acts of gender-based
violence that result, or likely to result in
6. Petitions for declaration of status of children as
physical, sexual or psychological harm or
abandoned, dependent or neglected children,
suffering to women; and other forms of
petitions for voluntary or involuntary
physical abuse and coercion which violate a
commitment of children, the suspension,
woman’s personhood, integrity and freedom
termination, or restoration of parental authority
of movement; and
and other cases cognizable under P.D. No. 603, E.O.
No. 56 (Series of 1986) and other related laws; and
b. Children – which include the commission of
all forms of abuse, neglect, cruelty,
7. Petitions for the constitution of the family home
exploitation, violence and discrimination and
(rendered unnecessary by Art. 153, Family Code).
all other conditions prejudicial to their
(Sec. 5, R.A. No. 8369)
development. (Sec. 5, R.A. No. 8369)

Remedial Law
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS,
MUNICIPAL CIRCUIT TRIAL COURTS

Exclusive Original
1. Actions involving personal property where the
value of the property does not exceed P 1. All offenses punishable with imprisonment
2,000,000; (B.P. No. 129, as amended by R.A. No. not exceeding 6 years irrespective of the
11576) amount of fine and regardless of other
imposable accessory or other penalties;
2. Actions for claim of money where the demand
does not exceed P 2,000,000; (B.P. No. 129, as 2. In offenses involving damage to property
amended by R.A. No. 11576) through criminal negligence where the
imposable fine does not exceed P10,000
3. Probate proceedings, testate or intestate, where (Sec. 32, B.P. No. 129 as amended by R.A. No.
the value of the estate does not exceed P 7691);
2,000,000
3. Where the only penalty provided by law is a
NOTE: In the foregoing, claim is exclusive of fine not exceeding P4,000 (Admin. Circular
interest, damages, attorney’s fees, litigation No. 09-94, June 14, 1994);
expense, and cost. (B.P. No. 129, as amended by
R.A. No. 11576) 4. Those covered by the Rules on Summary
Procedure, i.e.:
4. Actions involving title to or possession of real
property or any interest therein where the value a. Violations of traffic laws, rules and
or amount does not exceed P 400,000 exclusive of regulations;
interest damages, attorney’s fees, litigation b. Violations of the rental law;
expense, and costs (2008 BAR); (B.P. No. 129, as c. Violations of municipal or city
amended by R.A. No. 11576) ordinances;
d. Violations of B.P. No. 22 (A.M. No. 00-
5. Maritime claims where the demand or claim does 11-01-SC); and
not exceed P 2,000,000 (B.P. No. 129, as amended e. All other criminal cases where the
by R.A. No. 11576); penalty is imprisonment not exceeding
6 months and/or a fine of P1,000
6. Inclusion or exclusion of voters (Sec. 138, B.P. No. irrespective of other penalties or civil
881); liabilities arising therefrom;
7. Those covered by the Rules on Summary 5. All offenses committed by public officers
Procedure: and employees in relation to their office,
including government-owned or –
8. Forcible entry and unlawful detainer; controlled corporations, and by private
individuals charged as co-principals,
9. Those covered by the Rules on Small Claims, i.e., accomplices or accessories, punishable with
actions for payment of money where the claim imprisonment not more than 6 years or
does not exceed P 400,000 exclusive of interest where none of the accused holds a position
and costs for the METCs and P 300,000 for the classified as “Grade 27” and higher. (Sec. 4,
MTCCs, MTCs, and MCTCs. (A.M. No. 08-8-7-SC, as P.D. No. 1606, as amended by R.A. No. 8249)
amended, effective April 1, 2019)

2022 GOLDEN NOTES
General Principles
Delegated
Cadastral or land registration cases covering lots
where:
1. There is no controversy or opposition;
2. Contested, but the value does not exceed
P100,000 (Sec. 34, BP 129, as amended by R.A. No.
7691)
NOTE: The value shall be ascertained by the affidavit

of the claimant or agreement of the respective
claimants. (Sec. 34, B.P. No. 129 as amended by R.A. No.
7691)
Special
Petition for habeas corpus in the absence of all RTC Application for bail in the absence of all RTC judges
judges in the province or city. (Sec. 35, B.P. No. 129) in the province or city.
with RTC
Cases involving enforcement or violations of
environmental and other related laws, rules and
regulations. (Sec. 2, Rule 1, A.M. No. 09-6-8-SC)

Remedial Law
SHARI’A COURTS
Exclusive Original
1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of
Muslim Personal Laws;
2. All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills,
issuance of letters of administration or appointment of administrators or executors regardless of the
nature or aggregate value of the property;
3. Petitions for the declaration of absence and death for the cancellation or correction of entries in the
Muslim Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws;
4. All actions arising from the customary contracts in which the parties are Muslims, if they have not
specified which law shall govern their relations;
NOTE: Shari’a District Courts have no jurisdiction over real actions where one of the parties is not a
Muslim. (Villagracia v. Fifth Sharia District Court and Mala, G.R. No. 188832, 23 Apr. 2014)
Muslim law will only apply in cases where all the parties are Muslims and when real action arises from
contracts customary to Muslims. In cases when the real action not arising from contracts customary to
Muslims, the Civil Code applies. (Ibid.); and
5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs
and processes in aid of its appellate jurisdiction.
Concurrent with all Civil Courts
1. Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane
person to an asylum;
2. All other personal and legal actions not mentioned in paragraph 1(d) wherein the parties involved are
Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive
jurisdiction of the Municipal Circuit Court; and
3. All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the
property involved belongs exclusively to Muslims.

2022 GOLDEN NOTES
General Principles
6. ASPECTS OF JURISDICTION Carballo v. Encarnacion, G.R. No. L-5675, 27 Apr.

1953)
Aspects of Jurisdiction (P-Su-I-P-R)

It is equivalent to service of summons. (Sec. 23, Rule
14, ROC, as amended)
1. Jurisdiction over the Parties;
2. Jurisdiction over the Subject matter;
The inclusion in a motion to dismiss of other
3. Jurisdiction over the Issues;
grounds aside from lack of jurisdiction over the
4. Jurisdiction over the res or Property in
person of the defendant shall be deemed a voluntary
litigation; and
appearance. (Sec. 23, Rule 14, ROC, as amended)
5. Jurisdiction over the Remedies.
An appearance in whatever form, without explicitly

a. JURISDICTION OVER THE PARTIES objecting to the jurisdiction of the court over the
person, is a submission to the jurisdiction of the
Jurisdiction over the person is the legal power of the court over the person. It may be made by simply
court to render a personal judgment against a party filing a formal motion, or plea or answer. If his
to an action or proceeding. (Black’s, 5th Edition) motion is for any other purpose than to object to the
jurisdiction of the court over his person, he thereby
The manner by which the court acquires submits himself to the jurisdiction of the court.
jurisdiction over the parties depends on whether (Busuego v. CA, No. L-48955, June 30, 1987; La Naval
the party is the plaintiff or the defendant. Drug Corp. v. CA, G.R. No. 103200, 31 Aug. 1994)
How Jurisdiction over the Plaintiff and XPN: Special Appearance

Defendant is acquired
When the defendant’s appearance is made precisely
PLAINTIFF DEFENDANT to object to the jurisdiction of the court over his
1. By his or her person, it cannot be considered as appearance in
voluntary court. (French Oil Mill Machinery, Inc v. CA, G.R. No.
appearance in court 126477, 11 Sept. 1998)
and his submission to
its authority; or An example is a special appearance in court
Acquired when the challenging the jurisdiction of the court on the
2. By valid service of
action is commenced ground of invalid service of summons. (Go v.
summons.
by the filing of the Cordero, G.R. No. 164703, 04 May 2010)
complaint. This
NOTE: Jurisdiction over
presupposes payment NOTE: Special appearance operated as an exception
the defendant is not
of the docket fees. to the general rule on voluntary appearance.
essential in actions in rem
or quasi in rem as long as Accordingly, objections to the jurisdiction of the
the court has jurisdiction court over the person of the defendant must be
over the res. (Herrera, explicitly made, i.e., set forth in an equivocal
2007) manner. Failure to do so constitutes voluntary
submission to the jurisdiction of the court. (Rapid
City Realty and Development Corp. v. Villa et. al., G.R.
Voluntary Appearance
No. 184197, 11 Feb. 2010)
Voluntary appearance is any appearance of the
defendant in court, provided he or she does not
raise the question of lack of jurisdiction of the court.
(Flores v. Zurbito, G.R. No. L-12890. 08 Mar. 1918;

Remedial Law
Filing of Pleadings seeking Affirmative Reliefs XPN: Estoppel by laches, by failure to object to the
constitutes Voluntary Appearance jurisdiction of the court for a long period of time and
by invoking its jurisdiction in obtaining affirmative
GR: Seeking affirmative relief constitutes voluntary relief. (Tijam v. Sibonghanoy, G.R. No. L-21450, 15
appearance, and the consequent submission of Apr. 1968)
one’s person to the jurisdiction of the court.
Q: BP BLG. 129, as amended states that if the
XPNs: In the case of pleadings whose prayer is assessed value of the real property subject
precisely for the avoidance of the jurisdiction of the matter of an action involving interest thereto is
court, which only leads to a special appearance. P 20,000.00 and more, then the RTC can validly
These pleadings are: take/assume jurisdiction over the case
otherwise it is the Metropolitan/Municipal Trial
1. In civil cases, motions to dismiss on the ground Court. The subject lot in a Complaint for
of lack of jurisdiction over the person of the Recovery of Real Estate Property and Recovery
defendant; of Possession has a total market assessed value
of P 11,120.00. 22 long years after the complaint
NOTE: The inclusion in a motion to dismiss of was filed, the petitioners raised the ground of
other grounds aside from lack of jurisdiction lack of jurisdiction before the SC. Is the
over the person of the defendant shall be contention tenable?
deemed a voluntary appearance (Sec. 23, Rule
14, ROC, as amended); A: NO. The Court finds that the circumstances
attendant in the instance case are actually much
2. In criminal cases, motions to quash an more grave than those present in Tijam. Same as in
Information on the ground of lack of Tijam, the petitioners Sps. Rebamonte utterly failed
jurisdiction over the person of the accused; and to invoke the ground of lack of jurisdiction despite
3. Motion to quash a warrant of arrest. having full knowledge of this ground, considering
that the assessed value of the subject lot was plainly
NOTE: The first two are consequences of the fact indicated in the Complaint, a copy of which was fully
that failure to file them would constitute a waiver of furnished to the petitioners. In fact, the petitioners
the defense of lack of jurisdiction over the person. Sps. Rebamonte filed an Answer and an Amended
The third is a consequence of the fact that it is the Answer in response to the categorical allegations in
very legality of the court process forcing the the Complaint. Yet, the petitioners Sps. Rebaminte
submission of the person of the accused that is the totally ignored the issue on jurisdiction in their
very issue in a motion to quash a warrant of arrest. responsive pleadings. They even sought affirmative
(Miranda v. Tuliao, G.R. No. 158763, 31 Mar. 2006) relief before the RTC by filing a counterclaim. A
Motion for Reconsideration was likewise filed by
b. JURISDICTION OVER THE SUBJECT MATTER the petitioners Sps. Rebamonte before the RTC.
Analogous to the factual circumstances in Tijam, the
petitioners Sps, Rebamonte were also able to file an
Jurisdiction over Subject Matter
appeal and Motion for Reconsideration before the
CA. Yet, even before the CA, the ground for lack of
It is the power to hear and determine cases of the
jurisdiction was never invoked. Therefore, the
general class to which the proceedings in question
petitioners Sps. Rebamonte estopped from invoking
belong. (Herrera, 2007)
the ground of lack of jurisdiction. (Sps. Rebamonte v.
Sps. Lucero, G.R. No. 237812, 02 Oct. 2019, J.
GR: Jurisdiction over the subject matter cannot be
Caguioa)
waived, enlarged or diminished by stipulation of the
parties. (Republic v. Estipular, G.R. No. 136588, 20 Jul.
2000)

2022 GOLDEN NOTES
General Principles
c. JURISDICTION OVER THE ISSUES 2. As a result of the institution of legal

proceedings, in which the power of the court is
recognized and made effective. (Biaco v.
Jurisdiction over the issues refers to the power of
Philippine Countryside Rural Bank, G.R. No.
the court to try and decide the issues raised in the
161417, 08 Feb. 2007).
pleadings of the parties. (Reyes v. Diaz, G.R. No. L-
48754, 26 Nov. 1941)
If the action is in rem or quasi in rem, jurisdiction
over the person of the defendant is not required.
How Jurisdiction over the Issues conferred
What is required is jurisdiction over the res,
although summons must be served upon the
GR: It is conferred and determined by the pleadings
defendant in order to satisfy the requirements of
of the parties that present the issues to be tried and
due process. (Gomez v. CA, G.R. No. 127692, 10 Mar.
determined whether or not the issues are of fact or
2004)
of law. (Riano, 2019)
In cases where jurisdiction over the person of a

XPNs: It may be conferred:
defendant cannot be acquired, the preliminary
seizure is to be considered necessary in order to
1. By stipulation of the parties, as when in the pre-
confer jurisdiction upon the court. In this case the
trial, the parties enter into stipulations of facts
lien on the property is acquired by the seizure; and
and documents or enter into an agreement
the purpose of the proceedings is to subject the
simplifying the issues of the case. (Sec. 2(b), Rule
property to that lien. (El Banco Español-Filipino v.
18, ROC, as amended);
Palanca, G.R. No. L-11390, 26 Mar. 1918) In this
instance, the action is converted from one in
2. By express or implied consent of the parties,
personam to one in rem. (Villareal v. CA, G.R. No.
when issues not raised by the pleadings are
107314, 17 Sept. 1998)
tried, such issues shall be treated in all respects
as if they had been raised in the pleadings. (Sec.
Jurisdiction over the Subject Matter vs.
5, Rule 10, ROC, as amended)
Jurisdiction over the Person
It is proper for the court to render judgment on the

JURISDICTION OVER JURISDICTION OVER
pleadings if the answer fails to tender an issue,
THE SUBJECT THE PERSON
except in actions for declaration of nullity of
MATTER
annulment of marriage or legal separation. (Sec. 1,
GR: Determined by the
Rule 34, ROC, as amended).
allegations of the
complaint. (Riano,
d. JURISDICTION OVER THE RES OR THE 2019)
PROPERTY IN LITIGATION Acquired by the filing
of the petition in case
XPN: Where the real
of the plaintiff or by
Jurisdiction over the res refers to the court’s issues are evident from
arrest (Rule 113, ROC,
jurisdiction over the thing or property which is the the record of the case,
as amended), by valid
subject of the action. (Riano, 2019) jurisdiction over the
service of summons or
subject matter cannot
voluntary submission
Jurisdiction over the res or property in litigation is be made to depend on
to the court’s authority
acquired either by: how the parties word
in case of the
or phrase their
defendant. (Ibid.)
1. Actual or constructive seizure of the property pleadings (Herrera,
under legal process, whereby it is brought into 2007), e.g., in
the custody of the law; or ejectment cases in
which the defendant

Remedial Law
averred the defense of irrespective of whether the plaintiff is entitled to all

the existence of or some of the claims averred. Jurisdiction is not
tenancy relationship affected by the pleas or the theories set up by the
between the parties. defendant in an answer to the complaint or a motion
(Ibid) to dismiss the same. (Republic v. Heirs of Paus, G.R.
Conferred by law It is sometimes made No. 201273, 14 Aug. 2019, J. Caguioa)
which may be either to depend, indirectly at
the Constitution or a least, on the party’s 7. JURISDICTION vs. EXERCISE OF JURISDICTION
statute. volition
EXERCISE OF
JURISDICTION
Q: Heirs of Ikang Paus represented by Elias Paus, JURISDICTION
filed a petition for identification, delineation It is any act of the court
and issuance of a Certificate of Ancestral Land pursuant to such
It is the authority to
Title (CALT) with respondent NCIP. They sought authority, which
hear and decide
the confirmation of their right to the ancestral includes making
cases. It does not
land at Baguio City. The Heirs of Mateo Cariño decisions. If there is
depend upon the
opposed the petition, and prayed for its jurisdiction over the
regularity of the
dismissal, cancellation and revocation. The said person and subject
exercise of that
protest was dismissed for lack of merit. OCT No. matter, the resolution of
power or upon the
0-CALT-37 covering the said lot in Baguio City, all other questions
rightfulness of the
was issued in the name of the Heirs of Paus. arising in the case is but
decision made. (Lim,
Republic, through the OSG, questioned OCT No. an exercise of
et al. v. Hon. Felipe
0-CALT-37 in the name of private respondents, jurisdiction. (Herrera v.
Pacquing, et al., G.R.
and filed a suit for Reversion, Annulment of Baretto, G.R. No. 8692, 10
No. 115044, 01 Sept.
Documents and Cancellation of Title with Prayer Sept. 1913; Palma v. Q&S,
1994)
for Issuance of Temporary Restraining Order Inc., G.R. No. L-20366, 16
(TRO) and Writ of Preliminary Injunction. It May 1966)
pointed out several irregularities in the
issuance of CALT in favor of Heirs of Paus. Heirs 8. JURISDICTION vs. VENUE
of Paus answered the complaint denying all its
material allegations. As special and affirmative VENUE JURISDICTION
defenses, they averred lack of jurisdiction and The place or
lack of cause of action. They pointed out that the geographical area
complaint assailed the CALT and the OCT issued where an action is to be
Power of the court to
on the basis of the CALT, which under the IPRA, filed and tried. (Manila
hear and decide a case.
falls within the jurisdiction of the NCIP, and not Railroad Company v.
the regular courts. They asserted that the RTC Attorney General, G.R
has no jurisdiction over the subject matter of the No. 6287, 01 Dec. 1911)
complaint; hence, the complaint must be Can only be objected to
Can be brought up at
dismissed for lack of jurisdiction. Is the before the other party
any stage of the
contention correct? files a responsive
proceedings.
pleading (answer).
A: NO. RTC has jurisdiction over cases for reversion May be waived by:
and cancellation of certificates of title. It is axiomatic
that the nature of an action and whether the 1. Failure to object
tribunal has jurisdiction over such action are to be Cannot be waived.
through a motion
determined from the material allegations of the to dismiss or
complaint, the law in force at the time the complaint through an
is filed, and the character of the relief sought

2022 GOLDEN NOTES
General Principles
affirmative
defense; or
Stipulation of the
parties.
Matter of procedural Matter of substantive
law. law.
Cannot be the subject
May be stipulated by
of the agreement of the
the parties.
parties.
Establishes a relation
between the plaintiff Establishes a relation
and defendant, or between the court and
petitioner and the subject matter.
respondent.
GR: Not a ground for a
It is a ground for a motu
motu proprio dismissal.
proprio dismissal in
(Riano, 2019)
case of lack of
jurisdiction over the
XPN: In cases subject
subject matter. (Sec. 1,
to summary
Rule 9, ROC)
procedure.

Remedial Law
9. JURISDICTION OVER CASES COVERED BY BARANGAY CONCILIATION, SMALL CLAIMS CASES AND
CASES COVERED BY SUMMARY PROCEDURE
RULE ON RULES ON
KATARUNGANG PAMBARANGAY LAW
SMALL CLAIMS CASES SUMMARY PROCEDURE
Purpose/Object
To effect an amicable settlement of

To provide a simpler and more To achieve an expeditious and
disputes among family and barangay
inexpensive and expeditious inexpensive determination of
members at the barangay level without
means of settling disputes the cases defined to be
judicial recourse and consequently help
involving purely money claims governed by the Rules on
relieve the courts of docket congestion.
than the regular civil process. Summary Procedure.
(Preamble of P.D. No. 1508) (1999 BAR)
Where to file
1. For disputes between residents of
the same barangay: the dispute must
be brought for settlement in the said
barangay;
2. For disputes between residents of

different but adjoining barangays and
the parties agree to submit their
differences to amicable settlement:
within the same city or municipality
where any of the respondents reside
at the election of the complainant;
1. MeTC 1. MeTC
3. For disputes involving real property
2. MTCC 2. MTCC
or any interest when the parties
3. MTC 3. MTC
thereto agree to submit their
4. MCTC 4. MCTC
differences to amicable settlement by
an appropriate lupon therein shall be
brought in the barangay where the
real property or larger portion
thereof is situated; and
4. For disputes arising at the workplace

where the contending parties are
employed or at the institution where
such parties are enrolled for study
shall be brought in the barangay
where such workplace or institution
is located.
Civil Cases covered
All disputes involving parties who Purely civil in nature where the a. All cases of forcible entry
actually reside in the same city or claim or relief prayed for by the and unlawful detainer
municipality may be the subject of the plaintiff is solely for payment or irrespective of the amount
proceedings for amicable settlement in reimbursement of sum of of damages or unpaid
the barangay. money, and the value of the rentals sought to be

2022 GOLDEN NOTES
General Principles
claim does not exceed P recovered. Where

The requirement of undergoing 400,000 for the MeTCs and P attorney’s fees are
barangay conciliation proceedings 300,000 for the MTCCs, MTCs, awarded, the same shall
applies only to cases involving natural and MCTCs (A.M. No. 08-8-7-SC, not exceed P 20,000; and
persons, and not where any of the parties as amended by OCA Circular No. b. All other civil cases, except
is a juridical person such as a 45-2019). probate proceedings,
corporation, partnership, corporation where the total amount of
sole, testate or intestate estate, etc. (Vda. a. For money owed under any plaintiff’s claim does not
De Borromeo v. Pogoy, G.R. No. L-63277, of the following: exceed Two Hundred
29 Nov. 1983) Thousand Pesos (P
i. Contract of Lease; 200,000.00) exclusive of
If the only contending party is the ii. Contract of Loan; interest and costs. (A.M.
government or its instrumentality or iii. Contract of Services; No. 08-8-7-SC)
subdivision the case is exempted from iv. Contract of Sale; or
the requirement of barangay conciliation v. Contract of Mortgage;
proceedings but when it (government or
its instrumentality or subdivision) is only b. For liquidated damages
one of the contending parties, a arising from contracts; and
confrontation should still be undertaken c. The enforcement of a
among the other parties. (Gegare v. CA, barangay amicable
G.R. No. 83907, 13 Sept. 1989) settlement or an arbitration
award involving a money
NOTE: Barangay conciliation process is claim
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. Such defense shall be raised
in the answer, otherwise, such objection
will be deemed waived. (Aquino v. Aure,
G.R. No. 153567, 18 Feb. 2008)
Cases not covered by Barangay

Conciliation
1. Where one party is the government

or any subdivision or
instrumentality thereof;
2. Where one party is a public officer or
employee, and the dispute relates to
the performance of his official
functions;
3. Offenses punishable by
imprisonment exceeding one (1)
year or a fine exceeding P 5,000.00;
4. Where the dispute involves real
properties located in different cities
or municipalities unless the parties

Remedial Law

differences to amicable settlement
by an appropriate lupon;
5. Where the dispute involves real
properties located in different cities
or municipalities unless the parties
6. Disputes involving parties who
actually reside in barangays of
different cities or municipalities,
except where such barangay units
adjoin each other and the parties
7. Such other classes of disputes which
the President may determine in the
interest of justice or upon the
recommendation of the Secretary of
Justice (Sec. 408, Local Government
Code);
8. Any complaint by or against
corporations, partnerships, or
juridical entities, since only
individuals shall be parties to
barangay conciliation proceedings
either as complainants or
respondents;
9. Disputes where urgent legal action is
necessary to prevent injustice from
being committed or further
continued, specifically:
10.
a. A criminal case where the
accused is under police custody
or detention
b. A petition for habeas corpus by a
person illegally detained or
deprived of his liberty or one
acting on his behalf
c. Actions coupled with
provisional remedies, such as
preliminary injunction,
attachment, replevin, and
support pendent lite.
d. Where the action may be barred
by the Statute of Limitations.

2022 GOLDEN NOTES
General Principles
11. Labor disputes or controversies

arising from employer-employee
relationship;
12. Where the dispute arises from the
CARL;
13. Actions to annul judgment upon a
compromise which may be directly
filed in court. (S.C. Administrative
Circular No. 14-93)
Criminal Cases covered
1. Violations of traffic laws,
rules and regulations;
2. Violations of the rental
law;
3. Violations of municipal or
city ordinances;
4. Violations of B.P. 22 or the
Bouncing Checks Law
(A.M. No. 00-11-01-SC,
April 15, 2003);
5. All other criminal cases
When punishable by imprisonment of
where the penalty is
not more than 1 year or fine of not more
imprisonment not
than P 5,000. (Sec. 408, LGC)
exceeding 6 months
and/or a fine of P1,000
irrespective of other
penalties or civil liabilities
arising therefrom; and
6. Offenses involving
damage to property
through criminal
negligence where the
imposable fine is not
exceeding P 10,000.

Civil Procedure
It can be instituted by filing the complaint by

II. CIVIL PROCEDURE personal service, by registered mail, by accredited
courier, by electronic mail or other electronic
means as may be authorized by the Court. (Sec. 3, in
relation to Section 14(a), Rule 13, ROC, as amended)
A. GENERAL PROVISIONS (RULE 1) NOTE: It is not simply the filing of the complaint or
appropriate initiatory pleading, but the payment of
the prescribed docket fee that vests a trial court
Applicability with jurisdiction over the subject matter or nature
of the action. (Heirs of Hinog v. Melicor, G.R. No.
The Rules of Court shall apply in all the courts, 140954, 12 Apr. 2005)
except as otherwise provided by the Supreme Court.
(Sec. 2, Rule 1, ROC, as amended) Construction
Actions or Proceedings governed by the Rules of The Rules shall be liberally construed in order to
Court promote their objective of securing a just, speedy
and inexpensive disposition of every action and
1. Civil actions; proceeding. (Sec. 6, Rule 1, ROC, as amended)
2. Criminal actions; and
3. Special Proceedings. (Sec. 3, Rule 1, ROC, as Ordinary Civil Actions
amended)
It is one in which a party sues another for the
Actions or Proceedings NOT governed by the enforcement or protection of a right or the
Rules of Court prevention or redress of a wrong. (Sec. 3(a), Rule 1,
ROC, as amended)
1. Election cases;
2. Land registration cases; It is governed by ordinary rules. (Bouvier’s Law
3. Cadastral cases; Dictionary, 8th ed.; Words and Phrases, Vol. 2)
4. Naturalization cases; and
5. Insolvency proceedings. Subject Matter of an Action
NOTE: The Rules may still apply to the cases above It is the physical facts, the thing, real or personal, the
by analogy or in suppletory character and whenever money, lands, chattels, and the like, in relation to
practicable and convenient. (Sec. 5, Rule 1, ROC, as which the suit is prosecuted. (Iniego v. Purganan,
amended) G.R. No. 166876, 24 Mar. 2006)
Commencement of Civil Action Special Civil Actions
A civil action is commenced by the filing of the It is one in which a party sues another for the
original complaint in court. If an additional enforcement or protection of a right or the
defendant is impleaded in a later pleading, the prevention or redress of a wrong wherein it has
action is commenced with regard to him on the date special features not found in ordinary civil actions.
of the filing of such later pleading, irrespective of It is governed by ordinary rules but subject to
whether the motion for its admission, if necessary, specific rules prescribed under Rules 62-71. (Riano,
is denied by the court. (Sec. 5, Rule 1, ROC, as 2019)
amended)

2022 GOLDEN NOTES
Remedial Law
Criminal Actions (Ching v. Rodriguez,

G.R. No. 192828, 28
It is one by which the State prosecutes a person for Nov. 2011)
an act or omission punishable by law. (Sec. 3(b), Rule Procedure
1, ROC, as amended) Initiated by an
Initiated by a pleading
application and
and parties respond
Civil Actions vs. Special Proceedings parties respond
through an answer.
through an opposition.
A civil action is one by which a party sues another
for the enforcement or protection of a right, or the Personal Actions v. Real Actions
prevention or redress of a wrong. (Sec. 3(a), Rule 1,
ROC, as amended) REAL ACTION PERSONAL ACTION
Scope
A special proceeding is a remedy by which a party Recovery of personal
seeks to establish a status, a right, or a particular property, the
fact. (Sec. 3(c), Rule 1, ROC, as amended) When it affects title to
enforcement of a
or possession of real
contract or the
Action vs. Special Proceeding (1999 BAR) property, or interest
recovery of damages.
therein. (Sec. 1, Rule 4,
(Chua v. TOPROS, G.R.
SPECIAL ROC, as amended)
ACTION No. 152808, 30 Sept.
PROCEEDING 2005)
Purpose Basis
To establish a: (SRP) When it is founded
Civil action: upon the privity of a
1. Status; real estate. The realty
1. To protect a right; 2. Right; or or interest therein is
or 3. Particular fact. the subject matter of
2. To prevent or (Sec. 3, Rule 1, ROC, the action.
redress a wrong. as amended)
NOTE: It is important
Criminal action: Rules of special that the matter in Founded on privity of
proceedings are litigation must also contract such as
Prosecute a person for provided for under involve any of the damages, claims of
an act or omission Sec. 1 of Rule 72 of the following issues: money, etc. (Paper
punishable by law. Rules of Court (e.g., Industries Corporation
(Sec. 3, Rule 1, ROC, as settlement of estate, 1. Title of the Philippines v.
amended) escheat, guardianship, 2. Ownership Samson, G.R. No. L-
etc.). (Riano, 2019) 3. Possession 30175, 28 Nov. 1975)
Governing Law 4. Partition
Requires the 5. Condemnation
application of specific (Albano, 2017)
Ordinary rules rules as provided for 6. Foreclosure of
supplemented by in the Rules of Court. mortgage
special rules. (Natcher v. CA, et al., 7. Any interest in real
G.R. No. 133000, 02 Oct. property (Riano,
2001) 2019)
Court Venue
Heard by courts of Heard by courts of A real action is ‘local’ – Venue of action is
general jurisdiction. limited jurisdiction. i.e., its venue depends transitory – i.e., the

Civil Procedure
upon the location of the place where the initially determining the nature of the action, i.e., if
property involved in plaintiff or any of the the action is personal or real. (Riano, 2019)
the litigation. principal plaintiffs
resides, or where the Local Actions v. Transitory Actions
Venue of action shall be defendant or any of
commenced and tried the principal TRANSITORY
LOCAL ACTIONS
in the proper court defendants resides, or ACTIONS
which has jurisdiction in the case of a non- Venue
over the area wherein resident defendant Must be brought in a Dependent on the
the real property where he may be particular place where place where the party
involved, or a portion found, at the election the subject property is resides regardless of
thereof is situated. of the plaintiff. (Sec. 2, located, unless there is where the cause of
(Sec. 1, Rule 4, ROC, as Rule 4, ROC, as an agreement to the action arose. Subject to
amended) amended) contrary. (Sec. 4, Rule Sec. 4, Rule 4.
4, ROC, as amended)
Importance of distinction between Real and Privity of Contract
Personal Actions Founded on privity of
No privity of contract contract between the
The distinction between a real action and a personal and the action is parties whether debt
action is important for the purpose of determining founded on privity of or covenant. (Paper
the venue of action. estate only. (Riano, Industries Corporation
2019) of the Philippines v.
NOTE: Questions involving the propriety or Samson, supra.)
impropriety of a particular venue are resolved by

2022 GOLDEN NOTES
Remedial Law
Difference of Actions In Rem, In Personam, and Quasi in Rem
ACTIONS IN REM, IN PERSONAM AND QUASI IN REM

ACTIONS IN REM ACTIONS IN PERSONAM ACTIONS QUASI IN REM
As to their Nature
A proceeding to subject the
property of the named defendant
or his interests therein to the
A proceeding to determine title, A proceeding to enforce personal
obligation or lien burdening the
status or condition of property rights and obligations brought
property. (Riano, 2019, citing
within its borders. against the person. (Riano, 2019)
Asiavest Limited v. CA, G.R. No.
128803, September 25, 1998 25
Sept. 1998)
As to their Purpose
Deals with the status, ownership

A proceeding to bar indifferently or liability of a particular property
To impose through the judgment
all who might be minded to make but which are intended to operate
of a court, some responsibility or
any objection against the right on these questions only as
liability directly upon the person
sought to be enforced, hence the between the particular parties to
of the defendant. (Domagas v.
judgment therein is binding the proceedings and not to
Jensen, G.R. No. 158407, January 17,
theoretically upon the whole ascertain or cut-off the rights or
2005 17 Jan. 2005)
world. interests of all possible claimants.
(Domagas v. Jensen, supra)
As to their Scope
Directed against the thing itself Directed against particular
Directed against particular
instead of against the person. persons. (Domagas v. Jensen,
persons with respect to the res.
(Riano, 2019) supra)
As to the Required Jurisdiction
Jurisdiction over the person of the Jurisdiction over the person of the
defendant is not required. defendant is not required as long
Jurisdiction over the res is as jurisdiction over the res is
acquired either (1) by the seizure Jurisdiction over the person of the acquired. (Biaco v. Philippine
of the property under legal defendant is required. (Biaco v. Countryside Rural Bank, supra)
process; or (2) as a result of the Philippine Countryside Rural Bank,
institution of legal proceedings. supra.) NOTE: Summons must be served
(Biaco v. Philippine Countryside upon the defendant in order to
Rural Bank, G.R. No. 161417, 08 satisfy due process requirements.
Feb. 2007) (Riano, 2019)
As to the Effect of Judgment
Judgment will be binding only

Judgment is binding only upon upon the litigants, their privies,
Judgment is binding upon the
parties impleaded or their and their successors-in-interest,
whole world. (Muñoz v. Yabut, Jr.,
successors-in-interest, but not but the judgment shall be executed
G.R. No. 142676 & 146718, 6 June
upon strangers. (Muñoz v. Yabut, against a particular property. The
2011)
Jr., supra) res involved will answer for the
judgment.

Civil Procedure
Examples
1. Probate proceedings (Alaban
1. Action for partition;
v. Court of Appeals, G.R. No. 1. Action for specific
2. Action for accounting (Riano,
156021, 23 Sept. 2005); performance (Jose v. Boyon,
2019, citing Valmonte v. CA, G.R.
2. Cadastral proceedings (In re G.R. No. 147369, 23 Oct. 2005);
No. 108538, 22 Jan. 1996);
Estate of Johnson, 39 Phil 156); 2. Action for breach of contract;
3. Attachment; or
or or
4. Foreclosure of mortgage
3. Land registration proceedings 3. Action for a sum of money or
(Sahagun v. CA, G.R. No. 78328,
(Republic v. Herbieto, G.R. No. damages (Riano, 2019)
03 June 1991)
156117, 26 May 2005)
NOTE: The distinction between actions in rem, in Under the Revised Rules of Criminal Procedure, only
personam, and quasi in rem is important in the civil liability of the accused arising from the
determining the following: crime charged is deemed included in the criminal
action. Thus, the civil actions referred to in the
1. Whether jurisdiction over the person of the above stated provisions of the law shall remain
defendant is required; and separate, distinct and independent of any criminal
2. The type of summons to be employed (Gomez v. prosecution which may be based on the same act.
CA, G.R. No. 127692, 10 Mar. 2004) (Riano, 2019, citing Philippine Rabbit Bus Lines, Inc.
v. People, G.R. No. 147703, 14 Apr. 2004)
Importance of Classification of Actions
Two Separate Civil Liabilities that may arise
The following matters are dependent on the nature from a Single Act or Omission
of the action:
1. Civil liability ex –delicto; or
1. The law on jurisdiction; 2. Independent civil liabilities such as those:
2. The rules on venue and prescription;
3. Defenses against the action; a. Not arising from an act or omission
4. Payment of docket fee; and complained of as felony (e.g., culpa
5. Service of summons (Herrera, 2007) contractual or obligations arising from law;
intentional torts; and culpa aquiliana); or
Independent Civil Action b. Where the injured party is granted a right to
file an action independent and distinct from
These are actions based on provisions of the Civil the criminal action. (L.G. Foods Corporation v.
Code, namely Articles 32, 33, 34 that arise from law Pagapong-Agraviador, G.R. No. 158995, 26
and Article 2176 that arises from quasi-delicts. They Sept. 2006)
shall proceed independently of the criminal action
and shall require only a preponderance of evidence. The remedies are alternative in case the obligation
has the possibility of arising indirectly from the
In no case, however, may the offended party recover delict/crime or directly from quasi-delict/tort.
damages twice for the same act or omission charged
in the criminal action. (Sec. 3, Rule 111, ROC, as Victims of negligence or their heirs have a choice
amended) between an action to enforce the civil liability
arising from culpa criminal under Article 100 of the
The responsibility arising from quasi-delict is Revised Penal Code, and an action for quasi-delict
entirely separate and distinct from the civil liability (culpa aquiliana) under Articles 2176 to 2194 of the
arising from negligence under the Penal Code. Civil Code.

2022 GOLDEN NOTES
Remedial Law
Q: Lily Lim filed a criminal complaint for estafa

against Co for allegedly failing to return the B. CAUSE OF ACTION (RULE 2)
former’s money in consideration of the
withdrawal authorities Lim bought from Co.
Trial ensued and Co was acquitted of the estafa
Meaning of Cause of Action
charge for insufficiency of evidence. After the
trial on the civil aspect of the criminal case, the
It is the act or omission by which a party violates a
Pasig City RTC also relieved Co of civil liability to
right of another. (Sec. 2, Rule 2, ROC, as amended)
Lim. Her motion for reconsideration having
been denied, Lim filed her notice of appeal on
The question as to whether a plaintiff has a cause of
the civil aspect of the criminal case. Meanwhile,
action is determined by the averments in the
Lim filed a civil complaint for specific
pleadings pertaining to the acts of the defendant.
performance and damages before another RTC.
Whether such acts give him a right of action is
The defendants in the civil case were Co and all
determined by substantive law. (Herrera, 2007)
other parties to the withdrawal authorities
including FRCC. The complaint asserted two
It is axiomatic that the nature of an action and
common causes of action: breach of contract and
whether the tribunal has jurisdiction over such
abuse of rights. Did Lim commit forum shopping
action are to be determined from the material
in filing the civil case for specific performance
allegations of the complaint, the law in force at the
and damages during the pendency of her appeal
time of the complaint is files, and the character of
on the civil aspect of the criminal case for estafa?
the relief sought irrespective of whether the
plaintiff is entitled to all or some of the claims
A: NO. The filing of the collection case after the
averred. Jurisdiction is not affected by the pleas or
dismissal of the estafa cases against the offender did
the theories set up by the defendant in an answer to
not amount to forum-shopping. Although the cases
the complaint or a motion to dismiss the same.
filed by the offended party arose from the same act
(Republic v. Heirs of Paus, G.R. No. 201273, 14 Aug.
or omission of the offender, they are, however,
2019, J. Caguioa)
based on different causes of action. There can be no
forum-shopping in the instant case because the law
Every ordinary civil action must be based on a cause
expressly allows the filing of a separate civil action
of action. (Sec. 1, Rule 2, ROC, as amended)
which can proceed independently of the criminal
action. The two cases herein involve different kinds
Elements of a Cause of Action (L-A-C)
of civil obligations such that they can proceed
independently of each other. The civil complaint for
1. A legal right in favor of the plaintiff;
specific performance and damages involves only the
obligations arising from contract and from tort
2. A correlative legal duty of the defendant to
(culpa contractual), whereas the appeal in the estafa
respect such rights; and
case involves only the civil obligations of Co arising
from the offense charged (civil action ex delicto).
3. An act or omission on the part of such
The action filed by petitioner is an independent civil
defendant in violation of the right of the
action, which remains separate and distinct from
plaintiff; or constituting a breach of the
any criminal prosecution based on the same act. Not
obligation of the defendant to the plaintiff for
being deemed instituted in the criminal action
which the latter may maintain an action for
based on culpa criminal, a ruling on the culpability
recovery of damages or other appropriate relief
of the offender will have no bearing on said
with a resulting injury or damage which the
independent civil action based on an entirely
latter may maintain an action for the recovery
different cause of action. (Lim v. Kou Co Ping, G.R. No.
of relief from the defendant. (Riano, 2019, citing
175256, 23 Aug. 2012)
Metropolitan Bank and Trust Company v. Ley

Civil Procedure
Construction and Development Corporation, G.R. Cause of Action in Administrative Case

No. 185590, 3 Dec. 2014)
In an administrative case, the issue is not whether
NOTE: A party may not institute more than one suit the complainant has a cause of action against the
for a single cause of action. Otherwise, there will be respondent, but whether the respondent has
splitting of a single cause of action, which is breached the norms and standards of the office.
prohibited. (Riano, 2019)
Cause of Action in Different Cases
CASE CAUSE OF ACTION

a. The existence of a contract; and
Breach of Contract
b. The breach thereof.
The employer’s liability is presumed. (Art. 2180, NCC) It shall only
Liability of Employer based on the
cease if the employer successfully proves the diligence required of
Negligence of his Employee
a good father of a family to prevent damage.
Collection of Sum of Money based on a. Requires an allegation that a debt exists; and
a Promissory Note b. That such debt is due and demandable.
a. Initially, the possession of the property by the defendant was
by contract with or by tolerance of the plaintiff;
b. Eventually, such possession became illegal upon notice of the
plaintiff;
c. Thereafter, the defendant remained in possession of the
Unlawful Detainer
property and deprived the plaintiff of the enjoyment thereof;
and
d. Within one (1) year from the last demand on defendant to
vacate the property, the plaintiff instituted the complaint for
ejectment.
a. Prior physical possession of the property;
b. Deprivation of possession either by force, intimidations,
strategy, threat, or stealth (F-I-S-T-S); and
Forcible Entry
c. The action must be filed within one (1) year from the time the
owners or legal possessors learned of their deprivation of
physical possession of the land or building.
a. Prosecution did occur, and the defendant was himself the
prosecutor or that he instigated its commencement;
b. The criminal action finally ended with an acquittal;
Malicious Prosecution c. In bringing the action, the prosecutor acted without probable
cause; and
d. The prosecution was impelled by legal malice – that is, an
improper or sinister motive.
a. Statement that it is an environmental case; and
Environmental Cases
b. The law involved.

2022 GOLDEN NOTES
Remedial Law
Right of Action vs. Cause of Action
CAUSE OF ACTION RIGHT OF ACTION

As to their definition
Right of a plaintiff to bring an action and to prosecute
It is the act or omission by which a party violates the
that action until final judgment. (Marquez v. Varela,
rights of another. (Sec. 2, Rule 2, ROC, as amended)
G.R. No. L-4845, 24 Dec. 1952)
As to their requisites
1. The existence of a legal right of the plaintiff; 1. There must be a good cause (existence of a cause
2. A correlative duty of the defendant to respect one’s of action);
right; and 2. A compliance with all the conditions precedent to
3. An act or omission of the defendant in violation of the bringing of the action; and
the plaintiff’s right. (Agrarian Reform Beneficiaries 3. Right to bring and maintain the action must be in
Association v. Nicolas, G.R. No. 168394, 6 Oct. 2008) the person instituting it. (Albano, Remedial Law
Reviewer, 2014)
As to their nature
It is procedural in character and is the consequence
It is predicated upon substantive law on quasi-delicts
of the violation of the right of the plaintiff. (Riano,
under the NCC. (Riano, 2019)
2019)
As to their basis
Based on the allegations of the plaintiff in the Basis is the plaintiff’s cause of action. There is no right
complaint. of action where there is no cause of action. (Ibid.)
As to the effect of their affirmative defense
May be taken away by the running of the statute of
Not affected by affirmative defenses (fraud, limitation, estoppel or other circumstances which do
prescription, estoppel, etc.) not at all affect the cause of action. (Turner v. Lorenzo
Shipping Corporation, G.R. No. 157479, 24 Nov. 2010)
NOTE: The rule is “there is no right of action where there is no cause of action.” (Ibid.)
Failure to State a Cause of Action vs. Lack of Cause of Action (2019 BAR)
FAILURE TO STATE CAUSE OF ACTION LACK OF CAUSE OF ACTION

As to their definition
Where the evidence does not sustain the cause of
Insufficiency of allegation in the pleading. (Dabuco v.
action. (Domondon v. Lopez, A.M. No. RTJ-02-1696, 20
Court of Appeals, G.R. No. 133775, 20 Jan. 2000)
June 2002)
As to how it is interposed
Raised in a demurrer to evidence under Rule 33 after

May be raised as an affirmative defense in the
the plaintiff has rested his case. (Enojas v. Comelec,
defendant’s answer. (Sec. 12, Rule 8, ROC, as amended)
G.R. No. 129938, 12 Dec. 1997)
As to how it was determined
Determined only from the allegations of the pleading Resolved only on the basis of the evidence he
and not from evidentiary matters. (Riano, 2019, citing presented in support of his claim. (Riano, 2019 citing
Domondon v. Lopez, supra) Domondon v. Lopez, supra)

Civil Procedure
As to when it is made
Made after questions of fact have been resolved on
Can be made at the earliest stages of an action
the basis of stipulations, admissions, or evidence
(Dabuco v. CA, G.R. No. 133775, 20 Jan. 2000), i.e., filed
presented. (Dabuco v. CA, G.R. No. 133775, 20 Jan.
in an answer.
2000)
As to whether dismissal amounts to res judicata
No, dismissal due to the failure to state a cause of
action does not constitute res judicata.
Yes, because dismissal on the ground of lack of cause
Dismissal of a complaint for failure to state a cause of of action is a decision on the merits.
action does not bar the subsequent re-filing of the
complaint. (Sec. 13, Rule 15, ROC, as amended)
Effect of Lack of Cause of Action on the considered as parts of the complaint. (Riano, 2019,
Jurisdiction of the Court citing Agrarian Reform Beneficiaries Association v.
Nicolas, G.R. No. 168394, 6 Oct. 2008; Sps. Zepeda v.
Lack of cause of action does not affect the authority China Banking Corporation, G.R. No. 172175, 9 Oct.
of a court to hear and decide a given case, if the court 2006)
has jurisdiction over its subject matter, over the NOTE: The truth or falsity of the allegations is
parties therein, and, in an action in rem, over the res. beside the point because the allegations in the
(Herrera, 2007) complaint are hypothetically admitted. (Riano,
2019, citing PNB v. Court of Appeals, G.R. No. 121251,
Test of the Sufficiency of a Cause of Action 26 June 1998; Sta. Clara Homeowner’s Association v.
Gaston, G.R. No. 141961, 23 Jan. 2002)
Whether or not admitting the facts alleged, the court
could render a valid verdict in accordance with the Q: Spouses Bernabe and Rhodora Pamaran
prayer of the complaint. (Misamis Occidental II owned adjacent lots respectively. Rosa Pamaran
Coop., Inc. v. David, G.R. No. 129928, 25 Aug. 2005) built her residential house on these lots with the
consent of Rhodora and spouses Bernabe.
GR: The sufficiency of the statement of cause of Rhodora and Spouses Bernabe constituted real
action must appear on the face of the complaint, and mortgages over their lots as security for loans
its existence is only determined by the allegations of obtained from the Bank of Commerce
the complaint. (Viewmaster Construction Corp. v. (Bankcom). Rosa claimed that Bankcom neither
Roxas, G.R. No. 133576, 13 July 2000) included her house in determining the loan
amount nor obtained her consent to the real
NOTE: Under the 2019 amendments to the ROC, estate mortgage. Later, Bankcom filed petitions
that every pleading shall contain not only the for issuance of writs of possession, which were
statement of ultimate facts but including the granted by the RTC of Muntinlupa City. Rosa
evidence on which a party relies for his or her claim. prayed that Bankcom be ordered to pay her
(Sec. 1, Rule 8, ROC, as amended) damages as she was dispossessed of her house
by reason of the writs. The RTC Olongapo
Moreover, documentary and object evidence in granted Bankcom’s motion to dismiss and
support of the allegations must be contained in the accordingly, dismissed the Complaint on the
pleading. (Sec. 6, Rule 7, ROC, as amended) grounds of lack of cause of action and of
improper venue. How should Bankcom’s Motion
XPN: In some cases, the Court considered, in to Dismiss be resolved?
addition to the complaint, the appended annexes or
documents, other pleadings of the plaintiff, or A: Bankcom’s motion to dismiss must be resolved
admissions in the records so that such annexes are with reference to the allegations in the Complaint

2022 GOLDEN NOTES
Remedial Law
assuming them to be true. The RTC Olongapo does 5. Generates unnecessary expenses to the parties.
not need to inquire on the truthfulness of these (Riano, 2019) (1999, 2005 BAR)
allegations and declare them to be false. If it does,
such court would be denying the plaintiff of her NOTE: The rule against splitting causes of action is
right to due process of law. In determining whether not altogether one of original right but is one of
a complaint states or does not state a cause of interposition based upon principles of public policy
action, the court must hypothetically admit the and of equity to prevent the inconvenience and
truth of the allegations and determine if it may grant hardship incident to repeated and unnecessary
the relief prayed for based on them. (Rosa Pamaran litigation. (BPI Family Savings Bank, Inc. v. Vda de
v. Bank of Commerce, G.R. No. 205753, 04 July 2016) Coscolluela, G.R. No. 167724, 27 June 2006)
Tests to Ascertain whether two Suits relate to a
Single or Common Cause of Action (E-D-E) Effect of Splitting a Cause of Action
1. Evidence – Whether the same evidence would If two or more suits are instituted on the basis of the
support and sustain both the first and second same cause of action, the filing of one or a judgment
causes of action (Same Evidence Test); upon the merits in any one is available as a ground
for the dismissal of the others. (Sec. 4, Rule 2, ROC, as
2. Defenses – Whether the defenses in one case amended)
may be used to substantiate the complaint in
the other; and Remedies against Splitting Cause of Action
3. Existence – Whether the cause of action in the The defendant may file a motion to dismiss based on
second case existed at the time of the filing of either of the following grounds:
the first complaint (Umale v. Canoga Park
Development. Corporation, G.R. No. 167246, 20 1. Litis pendentia – that there is another action
July 2011) pending between the same parties for the same
cause; or
SPLITTING A SINGLE CAUSE OF ACTION
AND ITS EFFECTS 2. Res judicata - if the first action has already
been terminated – that the cause of action is
Splitting of Cause of Action barred by a prior judgment or by the statute of
limitations. (Section 12(a), Rule 15, ROC, as
It is the act of instituting two or more suits on the amended)
basis of the same cause of action. (Sec. 4, Rule 2, ROC,
as amended) It is the act of dividing a single or Rationale
indivisible cause of action into several parts or
claims and bringing several actions thereon. (Riano, 1. Prevent repeated litigation between the same
2019, citing Quadra v. Court of Appeals, G.R. No. parties in regard to the same subject or
147593, 31 July 2006) This practice, which applies controversy;
not only to complaints but also to counterclaims and 2. Protect the defendant from unnecessary
crossclaims, is discouraged. vexation. Nemo debet vexare pro una et eadem
causa (No man shall be twice vexed for one and
Rationale the same cause); and
3. Avoid the costs and expenses incident to
1. Breeds multiplicity of suits; numerous suits. (City of Bacolod v. SM Brewery,
2. Clogs the court dockets; G.R. No. L-25134, 30 Oct. 1969)
3. Leads to vexatious litigation;
4. Operates as an instrument of harassment; and NOTE: Litis pendentia and forum shopping have
similar elements, so it is best for the counsel to move

Civil Procedure
for the dismissal based on forum shopping under Joinder of Claims in Small Claims cases
Sec. 5, Rule 7 instead, and show that the party or his
counsel willfully and deliberately resorted to forum The plaintiff may join, in a single statement of claim,
shopping. This is because the effect is a dismissal one or more separate small claims against a
with prejudice, in addition to the sanction for direct defendant provided that the total amount claimed,
contempt as well as a cause for administrative exclusive of interest and costs, does not exceed
sanctions. P1,000,000.00. (Rules on Expedited Procedures in
First Level Courts, A.M. No. 08-8-7-SC, as amended)
Joinder of Causes of Action (2005 BAR) Misjoinder of Causes of Action
It is the assertion of as many causes of action a party There is a misjoinder when two or more causes of
may have against another in one pleading alone. action were joined in one complaint when they
(Sec. 5, Rule 2, ROC, as amended) It is the process of should not be so joined.
uniting two or more demands or rights of action in
one action. (Riano, 2019, citing Unicapital, Inc. v. This is not a ground for dismissal of an action. A
Consing, Jr., G.R. No. 192073, 11 Sept. 2013) misjoined cause of action may, on motion of a party
or on the initiative of the court, be severed and
Requisites of Joinder of Causes of Action proceeded with separately by filing a motion in
relation thereto. (Sec. 6, Rule 2, ROC, as amended)
1. The party shall comply with the rules on joinder There is no sanction against non-joinder of separate
of parties (Sec. 6, Rule 3, ROC, as amended): causes of action.
a. Right to relief exists in favor of or against
several persons; However, if the plaintiff refuses to sever the
b. Right to relief arises out of the same misjoined cause of action, the complaint may be
transaction or series of transaction; and dismissed pursuant to Sec. 3, Rule 17. (ROC, as
c. There is a common question of law of law amended)
or fact.
Q: P sued A and B in one complaint in the RTC-
2. The joinder shall not include special civil Manila, the cause of action against A being an
actions governed by special rules; overdue promissory note for P300,000 and that
against B being an alleged balance of P300,00 on
3. Where the causes of action are between the the purchase of goods sold on credit. Does the
same parties but pertain to different venues or RTC-Manila have jurisdiction over the case?
jurisdictions, the joinder may be allowed in the (2002 BAR)
RTC provided one of the causes of action falls
within the jurisdiction of said court and venue A: NO, the RTC-Manila has no jurisdiction over the
lies therein; and case. The joinder of the causes of action against A
and B is not proper. For a joinder of causes of action
4. Totality Test - Where claims in all causes of against several defendants to be proper, the joinder
action are principally for recovery of money, the must comply with the rules on joinder of the parties
aggregate amount claimed shall be the test for under Sec. 6 of Rule 3. This rule requires that the
jurisdiction. (Sec. 5, Rule 2, ROC, as amended) causes of action joined should arise out of the same
(2002 BAR) transactions and there exists a question of law or
facts common to both. These requirements are not
NOTE: A joinder of causes of action is only met under the facts.
permissive, not compulsory; hence, a party may
desire to file a single suit for each of his claims. Since the causes of action cannot be joined, each
(Riano, 2019) action must be the subject of a separate action. The
totality rule has no application under the facts of the

2022 GOLDEN NOTES
Remedial Law
case. The amount of each claim falls within the there exists no bar in the simultaneous adjudication
jurisdiction of the MTC. of all the erroneously joined causes of action.
Q: Can there be a valid judgment in case of The foregoing rule only applies if the court trying
misjoined causes of action? the case has jurisdiction over all of the causes of
action therein notwithstanding the misjoinder of
A: YES. Misjoinder of causes of action is not a ground the same. If the court trying the case has no
for dismissal. The courts have the power, acting jurisdiction over a misjoined cause of action, then
upon the motion of a party to the case or sua sponte, such misjoined cause of action has to be severed,
to order the severance of the misjoined cause of any adjudication rendered by the court with respect
action to be proceeded with separately. However, if to the same would be a nullity. (Ada v. Baylon, G.R.
there is no objection to the improper joinder or the No. 182435, 13 Aug. 2012)
court did not motu proprio direct a severance, then
Splitting of Cause of Action vs. Joinder of Causes of Action
SPLITTING OF CAUSE OF ACTION JOINDER OF CAUSES OF ACTION

It is the practice of dividing one cause of action into
Assertion of as many causes of action as a party may
different parts and making each part the subject of a
have against another in one pleading alone. (Sec. 5,
separate complaint. (Bachrach v. Icaringal, G.R. No. L-
Rule 2, ROC, as amended)
45350, 29 May 1939)
Prohibited. A party may not institute more than one Encouraged. No sanction against non-joinder of
suit for a single cause of action. (Sec. 3, Rule 2, ROC, as separate causes of action since a plaintiff needs only
amended) a single cause of action to maintain an action.
It causes multiplicity of suits and double vexation on It minimizes multiplicity of suits and inconvenience
the part of the defendant. (Riano, 2019) on the parties.
The filing of one (litis pendentia) or a judgment upon
the merits in any one (res judicata) is available as a
No adverse effect on the action.
ground for the dismissal of the others. (Sec. 4, Rule 2,
ROC, as amended)
Joinder of Causes of Action vs. Joinder of Parties
JOINDER OF CAUSES OF ACTION JOINDER OF PARTIES

It refers to the procedural device
whereby a party who asserts various It may be employed when there are various causes of actions that
claims against the same or several accrue in favor of one or more plaintiffs against one or more
parties, file all his claims against them defendants i.e., there is plurality of parties.
in a single complaint.
It will not necessarily involve a It may or may not be involved in a joinder of causes of actions. (Riano,
joinder of parties. 2019)
Indispensable parties – required to be joined either as plaintiffs or

Merely permissive, as evidenced by defendants. (Sec. 7, Rule 3, ROC, as amended)
the use of the word “may” instead of
“shall.” (Sec. 5, Rule 2, ROC, as Necessary party – one who is not indispensable but ought to be joined
amended; Riano, 2019) (1999 BAR) if complete relief is to be accorded, or for a complete determination
or settlement of the action. (Sec. 8, Rule 3, ROC, as amended)

Civil Procedure
ii. The suits are in connection with the

C. PARTIES TO CIVIL ACTIONS (RULE 3) settlement and closure of its affairs.
(Sec. 112, Corporation Code)
NOTE: A deceased person or his estate may not be

Who may be Parties to a Civil Action
impleaded as defendant in a civil action as they lack
legal personality. When a person dies, his legal
1. Natural persons;
personality ceases and he could no longer be
2. Juridical persons:
impleaded as respondent in an ordinary civil suit for
a. The State and its political subdivisions;
collection. (Gaffney v. Butler, G.R. No. 219408, 8 Nov.
b. Other corporations, institutions and
2017, J. Caguioa)
entities for public interest or purpose,
created by law; and
Action if the Party Impleaded is NOT Authorized
c. Corporations, partnerships and
to be a Party
associations for private interest or purpose
to which the law grants a juridical
It can be raised as an affirmative defense based on
personality, separate and distinct from that
the following grounds:
of each shareholder, partner or member
(Art. 44, NCC);
1. Plaintiff not authorized – the ground that “the
plaintiff has no legal capacity to sue.” (Sec.12(a),
3. Entities authorized by law:
a. Corporation by estoppel is precluded from
2. Defendant not authorized – the ground that
denying its existence and the members
the “pleading asserting a claim states no cause
thereof can be sued and be held liable as
of action.” (Sec.12(a), Rule 8, ROC, as amended)
general partners (Sec. 21, Corporation
Code);
NOTE: A complaint cannot possibly state a cause of
b. A contract of partnership having a capital of
action against one who cannot be a party to a civil
three thousand pesos or more but which
action. (Riano, 2019)
fails to comply with the registration
requirements is nevertheless liable as a
Lack of Legal Capacity to Sue vs. Lack of Legal
partnership to third persons (Art. 1772 in
Personality to Sue
relation to Art. 1768, NCC);
c. Estate of a deceased person (Limjoco v.
LACK OF LEGAL
Intestate Estate of Fragante, G.R. No. L-770, LACK OF LEGAL
PERSONALITY TO
27 Apr. 1948); CAPACITY TO SUE
SUE
d. A legitimate labor organization may sue
It refers to plaintiff’s
and be sued in its registered name (Art.
general disability to
242[e], Labor Code of the Philippines);
sue such as on account
e. The Roman Catholic Church may be a party
of minority, insanity,
and as to its properties, the archbishop or
incompetence, lack of
diocese to which they belong (Versoza v. The plaintiff is not the
juridical personality or
Hernandez, G.R. No. L-25264, 22 Nov. 1926); real party in interest.
any other general
and (Columbia Pictures, Inc.
disqualifications of a
f. A dissolved corporation may prosecute and v. CA, supra.)
party. (Columbia
defend suits by or against it provided that
Pictures, Inc. v. CA, G.R.
the suits:
No. 110318, 28 Aug.
i. Occur within three (3) years after its
1996)
dissolution; and

2022 GOLDEN NOTES
Remedial Law
Remedy: File an NOTE: Husband and wife shall sue and be sued
Remedy: File an
answer and raise as an jointly inasmuch as both are co-administrators of
answer and raise as an
affirmative defense the community property under the system of
affirmative defense
that the complaint absolute community of property, as well as the
lack of capacity to sue.
states no cause of conjugal partnership property. (Feria & Noche,
(Sec. 12, Rule 8, ROC, as
action. (Sec. 12, Rule 8, 2013)
amended)
supra.)
XPNs:
Rules with regard to the Right of a Foreign
Corporation to bring Suit in Philippine Courts 1. Arts. 101 & 108, Family Code (FC) - A spouse
without just cause abandons the other or fails to
1. If it does business in the Philippines with the comply with his or her obligations to the family
required license, it can sue before Philippine with respect to marital, parental or property
courts on any transaction. (Agilent Technologies relations;
v. Integrated Silicon, G.R. No. 154618, 14 Apr.
2004) 2. Art. 111, FC - A spouse of age mortgages,
encumbers, alienates or otherwise disposes of
2. If it does business in the Philippines without a his or her exclusive property;
license, it cannot sue before the Philippine
courts. (Id.) 3. Art. 145, FC - The regime of separation of
property governs the property relations
3. If it is not doing business in the Philippines, it between spouses.
needs no license to sue before Philippine courts
on an isolated transaction or on a cause of NOTE: In the foregoing exceptions, the
action entirely independent of any business presentation of the final judgment against the
transaction. (Id.) guilty or absent spouse shall be sufficient basis
for the grant of the decree of judicial separation
4. If it is without license to do business and is not of property.
doing business in the Philippines is not
disqualified from filing and prosecuting an Despite the separation of property, one spouse
action for unfair competition and may be sued may end up being sued and held answerable for
for acts done against a person or persons in the the liabilities incurred by the other spouse
Philippines, or may be sued in Philippine because “the liability of the spouses to creditors
Courts. for family expenses, however, be solidary.”
(Riano, 2019, citing Art. 146, Family Code of the
5. If it does business in the Philippines without Philippines)
license, a Philippine citizen or entity which has
contracted with said corporation may be 4. Art. 135 - Any of the following shall be
estopped from challenging the foreign considered sufficient cause for judicial
corporation’s corporate personality in a suit separation of property:
brought before Philippine courts. (Herrera,
2007) a. That the spouse of the petitioner has been
sentenced to a penalty which carries with it
Rule on Spouses as Parties civil interdiction;
b. That the spouse of the petitioner has been
GR: Husband and wife shall sue or be sued jointly, judicially declared an absentee;
except as provided by law. (Sec. 4, Rule 3, ROC, as c. That loss of parental authority of the
amended) spouse of petitioner has been decreed by
the court;

Civil Procedure
d. That the spouse of the petitioner has REAL PARTY-IN-INTEREST

abandoned the latter or failed to comply
with his or her obligations to the family as He or she is the party who stands to be: (B-I-E)
provided for in Art. 101;
e. That the spouse granted the power of 1. Benefited;
administration in the marriage settlements 2. Injured by the judgment in the suit; or
has abused that power; and 3. The party entitled to the avails of the suit
f. That at the time of the petition, the spouses (Sec. 2, Rule 3, ROC, as amended)
have been separated in fact for at least one
year and reconciliation is highly NOTE: The interest must be ‘real,’ which is a present
improbable. substantial interest as distinguished from a mere
expectancy or a future, contingent subordinate or
5. Art. 142 - The administration of all classes of consequential interest. (Rayo v. Metrobank, G.R. No.
exclusive property of either spouse may be 165142, 10 Dec. 2007) It is an interest that is
transferred by the court to the other spouse: material and direct, as distinguished from a mere
incidental interest in the question. (Samaniego v.
a. When one spouse becomes the guardian of Aguila, G.R. No. 125567, 27 June 2007)
the other;
b. When one spouse is judicially declared an Reasons why Actions should be filed under the
absentee; Name of the Real Party-in-Interest
c. When one spouse is sentenced to a penalty
which carries with it civil interdiction; or 1. To prevent the prosecution of actions by
d. When one spouse becomes a fugitive from persons without any right, title or interest in the
justice or is in hiding as an accused in a case;
criminal case. 2. To require that the actual party entitled to legal
relief be the one to prosecute the action;
NOTE: If the other spouse is not qualified by reason 3. To avoid multiplicity of suits; and
of incompetence, conflict of interest, or any other 4. To discourage litigation and keep it within
just cause, the court shall appoint a suitable person certain bounds, pursuant to sound public
to be the administrator. policy. (Albano, 2022, citing Oco v. Limbaring,
G.R. No. 161298, 31 Jan. 2006; Stronghold Ins. Co.,
REAL PARTIES-IN-INTEREST; INDISPENSABLE v. Cuenca, G.R. No. 173297, 6 Mar. 2013)
PARTIES; REPRESENTATIVES AS PARTIES;
NECESSARY PARTIES; INDIGENT PARTIES; NOTE: The mere failure to include the name of a
ALTERNATIVE DEFENDANTS party in the title of the complaint is not fatal because
the Rules of Court requires the courts to pierce the
Kinds of Parties in a civil action (R-I-R-N-I-P) form and go into the substance and not be misled by
a false or wrong name in the pleadings. Hence, if the
1. Real parties in interest; body indicates the defendant as a party to the
2. Indispensable parties; action, his omission in the title is not fatal. (Vlason
3. Representatives as parties; Enterprises v. CA, 310 SCRA 26, 58-59, G.R. Nos.
4. Necessary parties; 121662-64, 6 July 1999)
5. Indigent parties; and
6. Pro-forma parties. Q: Miñoza is a duly licensed owner operator of a
cockpit. His temporary license to operate a new
cockpit was revoked. Thereafter, a public
bidding for a 25-year franchise of the cockpit
operation was opened. Among four of the
qualified parties that submitted their cash bids

2022 GOLDEN NOTES
Remedial Law
were Marcelo Epe and Miñoz’s uncle, Jose Uy. purchase of a house and lot and issued two
Miñoza did not personally join the bidding. checks in favor of the latter. When Conpil
Marcelo won in the public bidding and was deposited the checks, the same were dishonored
granted the franchise. Miñoza filed a case to and stamped as "Account Closed." On February
annul the bidding process and grant of franchise 4, 2000, a criminal complaint for violation of B.P.
to Marcelo. The trial court dismissed the 22 was filed before the MTC. The criminal case
complaint. Can Miñoza file the suit? was titled, "People of the Philippines v. Mary
Ann Resurreccion," and was docketed as Crim.
A: NO. Miñoza, not being one of the bidders clearly Case No. 35066. Although the checks were
has no personality to contest the alleged rigged issued in favor of Conpil, the criminal complaint
bidding and grant of the franchise to Marcelo. Every for B.P. 22 was signed by petitioner Alfredo C.
action must be prosecuted or defended in the name Pili, Jr. (petitioner) as "Complainant." Petitioner
of the real party-in-interest, who stands to be was, at that time, the President of Conpil. After
benefited or injured by the judgment in the suit, or trial, the MTC rendered a judgment acquitting
the party entitled to the avails of the suit. By real respondent. However, it ordered respondent to
interest is meant a present substantial interest, as pay an amount by way of civil indemnity.
distinguished from a mere expectancy or a future, Respondent appealed the MTC's ruling on her
contingent, subordinate, or consequential interest” civil liability to the RTC under Rule 122 in
(Miñoza v. Lopez, G.R. No. 170914, 13 Apr. 2011). relation to Rule 40 of the Rules of Court. The
appeal that respondent filed was titled, "People
Q: The heirs of Hilaria and Elena affirmed the of the Philippines v. Mary Ann Resurreccion"
waiver of rights over a property in favor of and was docketed as Crim. Case No. 11-7661-
Francisca. However, some of the heirs refused to SPL. The RTC, however, affirmed the Judgment
do so. This prompted Francisca to file an action of the MTC. Respondent filed a motion for
for quieting of title. Estanislao De Vera, not a reconsideration, which was, however, likewise
named defendant in the case, filed an answer, denied. Respondent thus filed a petition for
presenting himself as the real party-in-interest review under Rule 122, Section 3(b) in relation
on the ground that some of the named to Rule 42 of the Rules of Court with the CA,
defendants executed a Deed of Renunciation of which was docketed as CA-G.R. CR No. 35178.
Rights in his favor. The RTC admitted his answer While the criminal case was originally
but, later on, set it aside and ordered him to file captioned, "People of the Philippines v. Mary
a pleading-in-intervention. Can De Vera Ann Resurreccion," respondent's petition for
participate in the case without filing a pleading- review was captioned by her as "Mary Ann
in-intervention? Resurreccion v. Alfredo Pili, Jr." Nevertheless,
Paragraph 12 of petitioner's Memorandum filed
A: YES. De Vera is not a stranger to the action but a with the CA in the petition for review alleged
transferee pendente lite. His interest cannot be that "Conpil authorized its President to file cases
considered and tried separately from the interest of for violation of BP 22" in order to enforce its
the named defendants as his rights were derived right. The CA held that the criminal case was not
from them. De Vera’s interest is not independent of prosecuted in the name of the real party in
the interest of the named defendants. There may be interest as Conpil was not included in the title of
no need for the transferee pendente lite to be the case even if it was the party: 1) that signed
substituted or joined in the case because, in legal the contract and 2) in whose favor the checks
contemplation, he is not really denied protection as were issued. On the other hand, it was petitioner
his interest is one and the same as his transferors, who signed the complaint and it was his name
who are already parties to the case (Medrano v. De that appeared in the title of the case, even
Vera, G.R. No. 165770, 2010 9 Aug. 2010). though he was not a party to any of the
Q: Respondent entered into an agreement with documents or checks. Is the decision of the CA
Conpil Realty Corporation (Conpil) for the correct?

Civil Procedure
A: NO. It has long been settled that “in criminal of Conpil. This same set of undisputed and admitted
cases, the People is the real party-in-interest x x x facts totally belies the CA’s claim that the criminal
[and] the private offended party is but a witness in complaint was not filed or prosecuted in the name
the prosecution of offenses, the interest of the of the real party-in-interest. (Pili, Jr. v. Resurreccion,
private offended party is limited only to the aspect G.R. No. 222798. June 19, 2019, J. Caguioa)
of civil liability.” While a judgment of acquittal is
immediately final and executory, “either the Sole Proprietorship has No Juridical Personality
offended party or the accused may appeal the civil Separate and Distinct from the Personality of
aspect of the judgment despite the acquittal of the the Owner
accused. x x x The real parties-in-interest in the civil
aspect of a decision are the offended party and the The law merely recognizes the existence of a sole
accused.” proprietorship as a form of business organization
conducted for profit by a single individual and
There is no doubt that the People is the real party- requires its proprietor or owner to secure licenses
in-interest in criminal proceedings. As the criminal and permits, register its business name, and pay
complaint for violation of B.P. No. 22 was filed in the taxes to the national government. The law does not
MTC, necessarily the criminal case before it was vest a separate legal personality on the sole
prosecuted “in the name of the People of the proprietorship or empower it to file or defend an
Philippines.” This very basic understanding of what action in court. The proprietor or proprietress can
transpired shows ineluctably the egregious error by be considered as a real party-in-interest and has a
the CA in ruling that the Conpil should have been standing to file a case. (Stanley Fine Furniture, Elena
“included in the title of the case.” As discussed in v. Gallano, G.R. No. 190486, 26 Nov. 2014)
Magallanes, the private complainant is the real
party-in-interest only as regards the civil aspect Pro forma Party
arising from the crime. A review of the records of
the instant case unequivocally shows that the civil One who is joined as a plaintiff or defendant, not
aspect of the criminal case was, in fact, appealed by because such party has any real interest in the
respondent and that it was Conpil, being the victim subject matter or because any relief is demanded,
of the fraud, that was the private complainant but merely because the technical rules of pleadings
therein. This is clear from the following facts: 1) a require the presence of such party on the record.
Secretary’s Certificate, which stated that the Board (Samaniego v. Agulia, G.R. No. 125567, 27 June 2000)
of Directors of Conpil resolved, at a special meeting
on January 21, 2000, to initiate all legal action INDISPENSABLE PARTY
against respondent and to authorize its President to
represent the Corporation in all civil and criminal Party in interest without whom no final
cases against Ms. Mary Ann C. Resurreccion and to determination can be had of an action. (Sec. 7, Rule
sign the Complaint, Affidavit of Complaint and all 3, ROC, as amended) An indispensable party is one
necessary pleadings, 2) the Affidavit of Complaint whose interest in the subject matter of the suit and
subscribed before the Office of the Prosecutor in the relief sought are so inextricably intertwined
February of 2000 concludes that the complaint with other parties that his legal presence as a party
affidavit was filed because “Conpil Realty Corp. has to the proceeding is an absolute necessity. (Riano,
extended its generosity and kind understanding to 2019, citing Benedicto-Muñoz v. Cacho-Olivares, G.R.
the limit and cannot anymore extend its patience,” No. 179121, 9 Nov. 2015)
and 3) both the Affidavit and the Secretary’s NOTE: The joinder of indispensable parties is
Certificate were formally offered as evidence for the mandatory. The presence of indispensable parties is
purpose of proving that Alfredo Pili was the necessary to vest the court with jurisdiction, which
authorized representative of the complainant is "the authority to hear and determine a cause, the
corporation, and that he was authorized to file the right to act in a case". (Lotte Phil. Co., Inc. v. Dela Cruz,
instant case, adduce evidence and testify on behalf et al., G.R. No. 166302, 28 July 2005) The absence of

2022 GOLDEN NOTES
Remedial Law
an indispensable party renders all subsequent This prompted Santiago to file a Complaint for
actions of the court null and void for want of judicial partition and for receivership. The RTC
authority to act, not only as to the absent parties but ordered the partition of the subject land
even as to those present. (Riano, 2019) between Santiago and the heirs of Conrado who
did not sign on the said Deed. On appeal, the CA
The joinder of all indispensable parties is a set aside the ruling of the RTC and held that the
condition sine qua non for the exercise of judicial heirs of Conrado who did not sign on the said
power. While the failure to implead an Deed are indispensable parties to the judicial
indispensable party is not per se a ground for the partition of the subject land and, thus, their non-
dismissal of an action, the absence of an inclusion as defendants in Santiago’s complaint
indispensable party renders all subsequent actions would necessarily result in its dismissal. Is the
of the court null and void for want of authority to CA correct in dismissing Santiago’s complaint
act, not only as to the absent parties but even as to for his failure to implead all the heirs of
those present. The judgment is vulnerable to attack Conrado?
even when no appeal has been taken and does not
become final in the sense of depriving a party of his A: NO. Although the heirs of Conrado who are not
right to question its validity. (TESDA v. Abragar, G.R. impleaded in the complaint are indispensable
No. 201022, 17 Mar. 2021) parties to the case, the non-joinder of indispensable
parties is not a ground for the dismissal of an action.
Tests to determine whether a _Party is an With regard to actions for partition, Section 1, Rule
Indispensable Party 69 of the Rules of Court requires that all persons
interested in the property shall be joined as
1. Can relief be afforded to the plaintiff without defendants. Thus, all the co-heirs and persons
the presence of the other party? having an interest in the property are indispensable
2. Can the case be decided on its merits without parties; as such, an action for partition will not lie
prejudicing the rights of the other party? without the joinder of the said parties. However, the
(Republic v. Sandiganbayan, G.R. No. 152154, 15 CA erred in ordering the dismissal of the complaint
July 2003) because of Santiago’s failure to implead all the
indispensable parties in his complaint. The Court
Unwilling Co-Plaintiff definitively explained that in instances of non-
joinder of indispensable parties, the proper remedy
A party who is supposed to be a plaintiff but whose is to implead them and not to dismiss the case.
consent to be joined cannot be obtained, as when he (Divinagracia v. Parilla, et al., G.R. No. 196750, 11
refuses to be a party to the action. He may be made Mar. 2015)
a defendant, and the reasons therefor shall be stated
in the complaint. (Sec. 10, Rule 3, ROC, as amended) REPRESENTATIVE AS PARTIES
Q: Conrado Nobleza, Sr. owned a 313-square Where the action is allowed to be prosecuted and
meter parcel of land located in Iloilo City defended by a representative or someone acting in
covered by (TCT) No. T- 12255. Upon Conrado’s a fiduciary capacity, the beneficiary shall be
death some of his children sold their respective included in the title of the case and shall be deemed
interests over the subject land to a certain to be the real property in interest. (Sec. 3, Rule 3,
Santiago for a consideration of 447,695.66, as ROC, as amended)
embodied in a Deed of Extrajudicial Settlement
or Adjudication with Deed of Sale which was, Who may be representatives:
however, not signed by the other heirs who did
not sell their respective shares. Because of this, 1. A trustee of an express trust;
he was not able to have TCT No. T-12255 2. An executor or administrator; and
cancelled and the subject document registered. 3. A party authorized by law or the Rules. (Ibid.)

Civil Procedure
NOTE: An agent acting in his own name and for the his interest is
benefit of an undisclosed principal may sue or be separable from that of
sued without joining the principal except when the indispensable party.
contract involves things belonging to the principal. (Ibid.)
The case may be
NECESSARY PARTY determined in court
but the judgment
No valid judgment if
Those who are not indispensable but ought to be therein will not afford
they are not joined.
joined as parties: a complete relief in
favor of the prevailing
1. If complete relief is to be accorded to those party.
already parties; or
2. For a complete determination or settlement of Rule when the Defendant’s Name or Identity is
the claim subject of the action. (Sec. 8, Rule 3, Unknown
ROC, as amended)
He may be sued as the unknown owner, heir,
NOTE: Whenever in any pleading in which a claim is devisee, or by such other designation as the case
asserted a necessary party is not joined, the pleader may require. However, when his identity or true
shall set forth his name, if known, and shall state name is discovered, the pleading must be amended
why he is omitted. (Sec 9, Rule 3, ROC, as amended) accordingly. (Sec. 14, Rule 3, ROC, as amended)
Indispensable Party vs. Necessary Party INDIGENT PARTY (2016 BAR)
INDISPENSABLE He or she is one:

NECESSARY PARTIES
PARTIES 1. Whose gross income and that of his immediate
A necessary party is family do not exceed an amount double the
one who is not monthly minimum wage of an employee
indispensable but who
ought to be joined as a NOTE: The term "immediate family" includes
Parties in interest party if: those members of the same household who are
without whom no final bound together by ties of relationship but does
determination can be 1. Complete relief is not include those who are living apart from the
had of an action shall to be accorded as particular household of which the individual is
be joined either as to those already a member (Tokio Marine Malaya v. Valdez, G.R.
plaintiffs or parties; or No. 150107-08, 28 Jan. 2008); and
defendants. (Sec. 7, 2. For a complete
Rule 3, ROC, as determination or 2. Who does not own real property with a fair
amended) settlement of the market value as stated in the current tax
claim subject of declaration of more than Php 300,000.00. (Sec.
Must be joined under the action. (Sec. 8, 19, Rule 141, as amended by A.M. No. 04-2-04-SC)
any and all conditions Rule 3, ROC, as
because the court amended) He or she is one who has no money or property
cannot proceed sufficient and available for food, shelter and
without him or her. Necessary parties basic necessities for himself and his family. (Sec.
(Riano, 2019) should be joined 21, Rule 3, ROC, as amended)
whenever possible;
however, the action NOTE: He or she shall be exempt from the
can proceed even in payment of legal fees.
their absence because

2022 GOLDEN NOTES
Remedial Law
For purposes of a suit in forma pauperis, an indigent ALTERNATIVE DEFENDANTS

litigant is not really a pauper, but is properly a
person who is an indigent although not a public Where the plaintiff is uncertain against who of
charge, meaning that he has no property or income several persons he is entitled to relief, he or may
sufficient for his support aside from his labor, even join any or all of them in the alternative, although a
if he is self-supporting when able to work and in right to relief against one may be inconsistent with
employment. (Tokio Marine Malaya v. Valdez, a right to relief against the other. (Sec. 13, Rule 3,
supra.) ROC, as amended)
Rule on Indigent Litigants COMPULSORY AND PERMISSIVE

JOINDER OF PARTIES
If the applicant for exemption meets the salary and
property requirements under Sec. 19, Rule 141, Compulsory Joinder of Parties (2009 BAR)
then the grant of the application is mandatory.
The joinder of parties becomes compulsory when
However, if the trial court finds that one or both the one involved is an indispensable party. (Riano,
requirements have not been met, then it would set a 2019)
hearing to enable the applicant to prove that the
applicant has “no money or property sufficient and The plaintiff is mandated to implead all the
available for food, shelter and basic necessities for indispensable parties, considering that the absence
himself and his family”, as provided in Sec. 21, Rule of one such party renders all subsequent action of
3. In that hearing, the adverse party may adduce the court null and void for want of authority to act,
countervailing evidence to disprove the evidence not only as to the absent parties but even as to those
presented by the applicant; after which the trial present. One who is a party to a case is not bound by
court will rule on the application depending on the any decision of the court; otherwise, he will be
evidence adduced. deprived of his right to due process. (Sepulveda, Sr.
v. Pelaez, G.R. No. 152195, 31 Jan. 2005)
In addition, Sec. 21, Rule 3 also provides that the
adverse party may later still contest the grant of Effect of Failure to Join an Indispensable Party
such authority at any time before judgment is (2015, 2017 BAR)
rendered by the trial court, possibly based on newly
discovered evidence not obtained at the time the The presence of indispensable parties is a condition
application was heard. (Algura v. LGU of Naga, G.R. for the exercise of juridical power and when an
No. 150135, 30 Oct. 2006) indispensable party is not before the court, the
action should be dismissed. (Riano, 2019, citing
Authority as an Indigent Party to Litigate Lucman v. Malawi, G.R. No. 159794, 19 Dec. 2006)
includes an Exemption from the Payment of:
However, an outright dismissal is not the immediate
1. Docket fees and other lawful fees; and remedy authorized because, under the Rules,
2. Transcript of stenographic notes. (Sec. 21, Rule misjoinder/non-joinder of parties is NOT a ground
3, ROC, as amended) for dismissal. It is when the order of the court to
implead an indispensable party goes unheeded
NOTE: The amount of the docket and other lawful may the case be dismissed. In such a case, the
fees which the indigent was exempted from paying court may dismiss the complaint due to the fault of
shall be a lien on any judgment rendered in the case the plaintiff as when he does not comply with any
favorable to the indigent, unless otherwise order of the court (Sec. 3, Rule 17, ROC, as amended)
provided. (Sec. 21, Rule 3, ROC, as amended) such as an order to join indispensable parties.
(Riano, 2019, citing Plasabas v. CA, G.R. No. 166519,
31 Mar. 2009)

Civil Procedure
Effect of Non-Joinder of a Necessary Party Q: When may the court order the joinder of a
necessary party? (1998 BAR)
1. The court may order the inclusion of the
omitted necessary party if jurisdiction over his A: If the reason given for the non-joinder of the
person may be obtained; necessary party is found by the court to be
unmeritorious, it may order the pleader to join the
2. The failure to comply with the order for his omitted party if jurisdiction over his person may be
inclusion, without justifiable cause, shall be obtained. The failure to comply with the order of the
deemed a waiver of the claim against such court to include a necessary party, without
party; justifiable cause, shall be deemed a waiver of the
claim against such party. (Sec. 9, Rule 3, ROC, as
3. The non-inclusion of a necessary party does not amended)
prevent the court from proceeding in the action,
and the judgment rendered therein shall be MISJOINDER AND NON-JOINDER OF PARTIES
without prejudice to the rights of such
necessary party. (Sec. 9, Rule 3, ROC, as The Rules prohibit the dismissal of a suit on the
amended) ground of non-joinder or misjoinder of parties and
allows the amendment of the complaint at any stage
Requisites of Permissive Joinder of Parties of the proceedings, through motion or on order of
(2002 BAR) the court on its own initiative. (Sec. 11, Rule 3, ROC,
as amended; Republic. v. Sandiganbayan, G.R. No.
1. Right to relief arises out of the same transaction 152154, 15 July 2003)
or series of transactions (connected with the
same subject matter of the suit); and However, when the order of the court to implead an
2. There is a question of law or fact common to all indispensable party goes unheeded, the court may
the plaintiffs or defendants. order the dismissal of the case. The court is fully
clothed with the authority to dismiss a complaint
NOTE: There is a question of law in a given case due to the fault of the plaintiff as when, among
when the doubt or difference arises as to what the others, he does not comply with the order of the
law is on a certain state of facts; there is a question court. (Riano, 2019, citing Sec. 3, Rule 17, ROC, as
of fact when doubt arises as to the truth or the amended; Plasabas v. CA, G.R. No. 166519, 21 Mar.
falsehood of alleged facts. (Manila Bay Club Corp. v. 2009)
CA, et al., G.R. No. 110015, 11 Jan. 1995)
MISJOINDER OF NON-JOINDER OF
Rationale of Permissive Joinder of Parties PARTIES PARTIES
He or she is made a
He or she is supposed
The purpose and aim of the principle is to have party to an action
to be joined but is not
controversies and the matters directly related although he should not
impleaded in the
thereto settled once and for all once they are be impleaded. (Riano,
action. (Riano, 2019)
brought to the courts for determination. Litigation 2019)
is costly both to litigants and to the State, and the Whenever in any
If there is a claim
objective of procedure is to limit its number or pleading in which a
against a party
extent. In consonance with the above principle, we claim is asserted, a
misjoined, the same
have the rules against multiplicity of suits, the rule necessary party is not
may be severed and
of estoppel by judgment (Sec. 44, Rule 39, ROC, as joined, the pleader
proceeded with
amended), and the rule of res judicata. (Sec. 45, Rule shall set forth his
separately. (Sec. 11,
39, ROC, as amended; Fajardo v. Bayano, G.R. No. L- name, if known, and
Rule 3, ROC, as
8314, 23 Mar. 1956) shall state why he is
amended)
omitted. Should the

2022 GOLDEN NOTES
Remedial Law
court find the reason CLASS SUITS

unmeritorious, it may
order the inclusion of It is an action where one or some of the parties may
the omitted necessary sue for the benefit of all if the requisites for said
party if jurisdiction action are complied with. (Riano, 2019)
over his person may be
obtained. (Sec. 9, Rule Requisites of Class Suit (S-I-N-B) (2005 BAR)
3, ROC, as amended)
Neither misjoinder nor non-joinder of parties is a 1. Subject matter of the controversy is one of
ground for the dismissal of an action. Parties may common or general interest to many persons;
be dropped or added by the court on motion of 2. Parties affected are so numerous that it is
any party or motu proprio at any stage of the impracticable to bring them all before the court;
action and on such terms as are just. (Sec. 11, Rule 3. Parties bringing the class suit are sufficiently
3, ROC, as amended) (2015, 2017 BAR) numerous or representative of the class and can
fully protect the interests of all concerned; and
However, even if neither is a ground for dismissal 4. Representatives sue or defend for the benefit of
of the action, the failure to obey the order of the all. (Sec. 12, Rule 3; Sulo ng Bayan v. Araneta, G.R.
court to drop or add a party is a ground for the No. L-31061, 17 Aug. 1976)
dismissal of the complaint based on the failure of
the plaintiff to comply with a court order. (Sec. 3, A civil case instituted for the cancellation of existing
Rule 17, ROC as amended; Riano, 2019) timber license agreements in the country by
petitioners on behalf of themselves and others who
Q: Strauss filed a complaint against Wagner for are equally concerned about the preservation of the
cancellation of title. Wagner moved to dismiss country’s resources is indeed a class suit. The
the complaint because Grieg, to whom he subject matter of the complaint is of common and
mortgaged the property as duly annotated in the general interest not just to several, but to all citizens
TCT, was not impleaded as defendant. a.) Should of the Philippines. (Oposa v. Factoran, G.R. No.
the complaint be dismissed? b.) If the case 101083, 30 July 1993)
should proceed to trial without Grieg being
impleaded as a party to the case, what is his Instances where the Requisite of Common
remedy to protect his interest? (2015 BAR) Interest is NOT present:
A: NO. The complaint should not be dismissed. The 1. Suit brought by a non-stock corporation to
Supreme Court has held that non-joinder of an recover property of its members (Sulo ng Bayan
indispensable party is not a ground of a motion to v. Araneta, supra.);
dismiss. (Vesagas v. CA, G.R. No. 142924. 05 Dec.
2001) Here although Grieg, the registered 2. Recovery of damages for personal reputation,
mortgagee, is an indispensable party (Metrobank v. i.e., in a libel case on behalf of a specific
Alejo, G.R. No. 141970. 10 Sept. 2001), his non- individual (Newsweek, Inc. v. IAC G.R. No. L-
joinder does not warrant the dismissal of the 63559, 30 May 1986); or
complaint.
3. In an action for recovery of real property
The remedy of Grieg is to file a motion for leave to individually held i.e., where each of the
intervene. Under Rule 19, a person who has a legal defendants has an interest only in the particular
interest in the matter in litigation may intervene in portion of the land he is actually occupying, and
the action. Here Grieg is a mortgagee and such fact not in the portions individually occupied by the
was annotated in the title. Hence, he has a legal other defendants. (Ortigas & Company, Limited
interest in the title subject-matter of the litigation Partnership v. Hon. Vivencio M. Ruiz et. al., G.R.
and may thus intervene in the case. No. L-33952, 9 Mar. 1987)

Civil Procedure
NOTE: Even if the parties are numerous, there must against the estate of a deceased person (Rule 86,
be a community of interest for a class suit because ROC). (Sec. 20, Rule 3, ROC, as amended)
the subject matter of the controversy must be of
common interest among all of them. If the class suit NOTE: Since the action survives the death of the
is not proper, the remedy of the parties is either to defendant, the case shall not be dismissed and the
bring suit individually or join them all as parties Court shall merely order the substitution of the
under the rule on permissive joinder of parties. deceased defendant. (Atty. Sarsaba v. Vda. De Te, G.R.
No. 175910, 30 July 2009) (2014 BAR)
SUITS AGAINST ENTITIES
WITHOUT JURIDICAL PERSONALITY The substitute defendant need not be summoned.
The order of substitution shall be served upon the
When two or more persons not organized as an parties substituted for the court to acquire
entity with juridical personality enter into a jurisdiction over the substitute party (Riano, 2019).
transaction, they may be sued under the name by If there is notice of death, the court should await the
which they are generally or commonly known. In appointment of a legal representative; otherwise,
the answer of such defendant, the names and subsequent proceedings are void. (1999 BAR)
addresses of the persons composing said entity
must all be revealed. (Sec. 15, Rule 3, ROC, as Claims that Survive vs. Claims that DO NOT
amended) Survive
NOTE: Persons associated in an entity without CLAIMS/ACTIONS

CLAIMS/ACTIONS
juridical personality, however, cannot sue under THAT DO NOT
THAT SURVIVE
such name, because, as stated in the Rules, its SURVIVE
authority to be a party is confined only to being a 1. Recovery of 1. Purely Personal
defendant, as is evident from the words “they may contractual money (e.g., Legal
be sued.” (Riano, 2019) /claims (oral or Separation);
written) (1999 2. Performance
EFFECT OF DEATH OF PARTY LITIGANT BAR); that cannot be
2. Recovery/protection purely
Effect of the Death of a Party upon a Pending of property rights; delegated; and
Action (1999 BAR) 3. Recovery of real or 3. Claim that
personal property or cannot be
1. Purely personal action – the death of either of interest; instituted by
the parties extinguishes the claim and the 4. Enforcement of lien; executor or
action is dismissed. 5. Recovery of damages administrator.
for an injury to
2. Action that is not purely personal – claim is person or property
not extinguished and the party should be and suits by reason
substituted by his heirs, executor or of the alleged
administrator. In case of minor heirs, the court tortuous acts of the
may appoint a guardian ad litem for them. defendant (Board of
Liquidators v. Kalaw,
3. Action for recovery of money arising from G.R. No. L-18805, 14
contract and the defendant dies before entry Aug. 1967);
of final judgment – it shall not be dismissed but 6. Actions and
shall instead be allowed to continue until entry obligations arising
of judgment. A favorable judgment obtained by from delicts (Aguas
the plaintiff shall be enforced in the manner v. Llemos, G.R. No. L-
provided in the rules for prosecuting claims

2022 GOLDEN NOTES
Remedial Law
18107, 30 Aug. 1997; Vda. De Salazar v. CA, G.R. No. 121510 23 Nov.
1962); and 1995)
7. Ejectment case
(Tanhueco v. Aguilar, Effect of Non-Compliance with the Rules on
G.R. No. L-30369, 29 Substitution (1999 BAR)
May 1970)
GR: It renders the proceedings of the trial court
NOTE: The question as to whether an action infirm because the court acquired no jurisdiction
survives or not depends on the nature of the action over the person of the legal representative. (Brioso
and the damage sued for. In the causes of action v. Rili-Mariano, G.R. No. 132765, 31 Jan. 2003)
which survive, the wrong complained [of] affects Non-compliance therewith results in the undeniable
primarily and principally property and property violation of the right to due process of those who,
rights, the injuries to the person being merely though not duly notified of the proceedings, are
incidental, while in the causes of action which do not substantially affected by the decision rendered
survive, the injury complained of is to the person, therein. (Vda. De Salazar v. CA, G.R. No. 121510, 23
the property and rights of property affected being Nov. 1995)
incidental. (Cruz v. Cruz, G.R. No. 173292, 01 Sept.
2010) XPNs: (Where the non-compliance does NOT
deprive the court of jurisdiction)
Purpose of Non-Survival of Claims 1. When the heirs themselves voluntarily
appeared, participated in the case and
The reason for the dismissal of the case is that upon presented evidence in defense of the deceased
the death of the defendant a testate or intestate defendant (Vda. De Salazar v. CA, G.R. No.
proceeding shall be instituted in the proper court 121510, 23 Nov. 1995); or
wherein all his creditors must appear and file their 2. In ejectment cases, where the counsel fails to
claims which shall be paid proportionately out of inform the court of the death of his client and
the property left by the deceased. (1 Moran, 1979) thereby results in the non-substitution of the
deceased by his legal representatives.
Duty of Counsel
NOTE: The decision of the court is binding upon the
Whenever a party to a pending action dies, it shall successors-in-interest of the deceased. A judgment
be the duty of his counsel to inform the court within in an ejectment case may be enforced not only
thirty (30) days after such death of the fact thereof, against defendants but also against the members of
and to give the name and address of his legal their family, their relatives, or privies who derived
representative or representatives. Failure of their right of possession from the deceased
counsel to comply with his duty shall be a ground defendant. (Vda. De Salazar v. CA, G.R. No. 121510,
for disciplinary action. (Rule 3, Section 16, ROC, as November 23, 1995 23 Nov. 1995 citing Florendo Jr.
amended) v. Coloma, G.R. No. L-60544, 19 May 1984)
Purpose and Importance of Substitution of the Death of Counsel; Duty of Party Litigant
Deceased (2014 BAR)
It is the party's duty to inform the court of its
The purpose behind the rule on substitution of counsel's demise, and failure to apprise the court of
parties is the protection of the right of every party such fact shall be considered negligence on the part
to due process. It is to ensure that the deceased of said party. For failure of petitioner to notify the
would continue to be properly represented in the CA of the death of its counsel of record and have said
suit through the duly appointed legal representative counsel substituted, then service of the CA Decision
of the estate. (Torres v. CA, G.R. No. 120138, 5 Sept. at the place or law office designated by its counsel
of record as his address, is sufficient notice. The case

Civil Procedure
then became final and executory when no motion 1. Taxpayers – there must be a claim of illegal
for reconsideration or appeal was filed within the disbursement of public funds, or that the tax
reglementary period therefor. (Ventanilla v. Tan, measure is unconstitutional;
G.R. No. 180325, 20 Feb. 2013 citing Mojar, et al. v. 2. Voters – there must be a showing of obvious
Agro Commercial Security Service Agency, Inc.,) interest in the validity of the law in question;
3. Concerned citizens – there must be a showing
Death or Separation of a Party who is a Public that the issues raised are of transcendental
Officer importance, which must be settled early; and
4. Legislators – there must be a claim that the
The action may be continued and maintained by or official action complained of infringes on their
against the successor in the public office if the prerogative as legislators. (Funa v. Agra, G.R. No.
following requisites are present: 191644, 19 Feb. 2013)
1. The public officer is a party to an action in his Real Party-in-Interest vs. Locus Standi
official capacity;
2. During the pendency of the action, he either REAL PARTY-IN-
LOCUS STANDI
dies, resigns or ceases to hold office; INTEREST
3. It is satisfactorily shown to the court by any A party that:
party, within 30 days after the successor takes
office, that there is a substantial need for 1. Stands to be
continuing or maintaining the action; benefited or injured
Right of appearance
4. That the successor adopts or continues or by the judgment in
in a court of justice
threatens to adopt or continue the action of his the suit; or
on a given question.
predecessor; 2. Is entitled to the
5. The party or officer affected has been given avails of the suit
reasonable notice of the application therefor (Sec. 2, Rule 3, ROC,
and accorded an opportunity to be heard. (Rule as amended)
3, Sec. 17, ROC, as amended) The one who sues
must show that he
The interest must be
Doctrine of Locus Standi has sustained injury
‘real’, which is a present
or will sustain a
substantial interest, as
This doctrine requires a litigant to have a material direct injury as a
distinguished from a
interest in the outcome of the case. It refers to a result of a
mere expectancy or a
personal and substantial interest in a case such that government action,
future, contingent
the party has sustained or will sustain direct injury or has a material
subordinate or
because of the challenged governmental act. (Riano, interest in the issue
consequential interest.
2019, citing Osmeña III v. Abaya, G.R. No. 211737, 13 affected by the
(Rayo v. Metrobank, G.R.
Jan. 2016) challenged official
No. 165142, 10 Dec.
act. (Funa v. Agra,
2007)
However, since the rule is a mere procedural G.R. No. 191644,
technicality, the Court has waived or relaxed the 19 Feb. 2013)
rule, allowing persons who may not have been Unless otherwise Significant in cases
personally injured by the operation of a law or a authorized by law or by involving questions
governmental act. The Court has laid out the bare the Rules, every action of constitutionality,
minimum norm to extend the standing to sue to the must be prosecuted or because it is one of
“non-traditional suiters” as such: defended in the name of the essential
the real party in interest. requisites before
(Sec. 2, Rule 3, ROC, as such questions may
amended; Stronghold be judicially

2022 GOLDEN NOTES
Remedial Law
Insurance Company v. entertained. (Riano, anguish suffered being a material element of the
Cuenca, G.R. No. 173297, 2019) offense. (AAA v. BBB, G.R. No. 212448, 11 Jan. 2018)
6 Mar. 2013)
Venue of Real Actions
D. VENUE (RULE 4) The venue is local; hence the venue is the place
where the real property involved or, any portion
thereof, is situated. (Sec. 1, Rule 4, ROC, as amended)
(2008 BAR)
Venue is the place, or geographical area, in which a
court with jurisdiction may hear and determine a
NOTE: An action for annulment of mortgage is a real
case. (Black’s Law Dictionary, 5th Ed., 1936)
action if there has already been a foreclosure sale.
(Chua v. Total Office Products and Services, G.R. No.
Purpose of Rules on Fixing Venue
152808, 30 Sept. 2005) (2016 BAR)
The situs for bringing real and personal actions is

Venue of Personal Actions
fixed by the rules to attain the greatest convenience
possible to the party litigants by taking into
The venue is transitory; hence the venue is the
consideration the maximum accessibility to them of
residence of the plaintiff or defendant, at the option
the courts of justice. (Bartiua v. CA, G.R. No. 100748,
of the plaintiff. (Sec. 2, Rule 4, ROC, as amended)
3 Feb. 1997)
NOTE: The residence of a person must be his
Q: Can a complaint be dismissed by the court
personal, actual or physical habitation or his actual
motu proprio based on improper venue?
residence or abode. It does not mean fixed
permanent residence to which when absent, one has
A: NO. Improper venue is not one of the grounds
the intention of returning. Actual residence may in
wherein the court may dismiss an action motu
some cases be the legal residence or domicile, but
proprio. (Universal Corp. v. Lim, G.R. No. 154338, 05
for purposes of venue, actual residence is the place
Oct. 2007) Improper venue is an affirmative defense
of abode and not necessarily legal residence or
which the defendant may raise in his or her answer
domicile. Actual residence signifies personal
seasonably, else it is deemed waived. (Sec. 12, Rule
residence, i.e., physical presence and actual stay
8, ROC, as amended; Marcos-Araneta, et al. v. CA, G.R.
thereat. This physical presence, nonetheless, must
No. 154096, 22 Aug. 2008)
be more than temporary and must be with
continuity and consistency. (Jose Baritua v. CA, et al.
NOTE: In civil cases, venue is not a matter of
G.R. No. 108547, 3 Feb. 1997)
jurisdiction. (Heirs. of Lopez v. de Castro, G.R. No.
112905, 3 Feb. 2000)
In personal actions, if the plaintiff does not reside in
the Philippines, the complaint in such case may only
Venue becomes jurisdictional only in a criminal
be filed in the court of the place where the defendant
case. Where the Information is not filed in the place
resides. There can be no election as to the venue of
where the offense was committed, the information
the filing of a complaint when the plaintiff has no
may be quashed for lack of jurisdiction over the
residence in the Philippines. (Theodore and Nancy
offense charged. (Sec. 3, Rule 117, ROC, as amended)
Ang v. Spouses Alan and Em Ang G.R. No. 186993, 22
Aug. 2012)
NOTE: For Philippine courts to have jurisdiction
when the abusive conduct or act of violence under
Personal actions include those filed for recovery of
Section 5(i) of R.A. No. 9262 in relation to Section
personal property, or for enforcement of contract or
3(a), Paragraph (C) was committed outside
recovery of damages for its breach, or for the
Philippine territory, the victim be a resident of the
recovery of damages for injury committed to a
place where the complaint is filed in view of the

Civil Procedure
person or property (Pamaran v. Bank of Commerce,

G.R. No. 205753, 04 July 2016).
Principal Residence
The venue of personal actions is the court where the

plaintiff or any of the principal plaintiffs resides, or
where the defendant or any of the principal
defendants resides, or in the case of a non-resident
defendant where he may be found, at the election of
the plaintiff. (Marcos-Araneta, et al. v. CA, G.R. No.
154096, 22 Aug. 2008, supra.)
Sec. 2 of Rule 4 indicates quite clearly that 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. (Ibid.)
Rationale for the Addition of the Word

‘Principal’
According to the late Justice Jose Y. Feria, "the word

'principal' has been added [in the uniform
procedure rule] 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,
to borrow from Justice Regalado, "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." (Ibid.)

2022 GOLDEN NOTES
Remedial Law
Venue of Actions against Non-Residents
VENUE OF ACTIONS AGAINST NON-RESIDENTS

Defendant does not reside but IS FOUND in the Philippines
Personal actions
The venue is where the plaintiff or any of the principal plaintiffs resides, or where the non-resident defendant
may be found, at the election of the plaintiff. (Riano, 2019, citing Sec. 2, Rule 4, ROC, as amended)
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. (Id. citing Sec. 1, Rule 4, ROC, as amended)
Defendant does not reside and IS NOT FOUND in the Philippines
The action may be commenced and tried in the court of the place where the plaintiff resides or where the
property or any portion thereof is situated or found. (Sec. 3, Rule 4, ROC, as amended)
NOTE: Unless the Court declares otherwise, it is submitted that a liberal interpretation of Sec. 3, Rule 4 – giving
the plaintiff a choice of venue in actions affecting any property of a non-resident defendant who is not found
in the Philippines – would well serve the interest of a resident plaintiff rather than of the possible absconding
non-resident defendant. (Riano, 2019)
RATIONALE: A more liberal interpretation of the rule would save the plaintiff from going through the rigors
of travelling to a distant place to file and prosecute the action. A contrary interpretation would lead to an
unfortunate situation wherein the defendant who refuses to pay a just debt would have the capacity to cause
so much inconvenience to an aggrieved plaintiff. (Riano, 2019)
When the Rules on Venue do not apply (Universal Robina Corp. v. Lim, G.R. No. 154338, 5 Oct.
2007)
1. In cases where a specific rule or law provides
otherwise (e.g., an action for damages arising NOTE: A stipulation on venue is void and
from libel); or unenforceable when it is contrary to public policy.
2. Where the parties have validly agreed in (Sweet Lines v. Teves, G.R. No. 28324, 19 Nov. 1978)
writing before the filing of the action on the
exclusive venue. (Sec. 4, Rule 4, ROC, as Written Stipulations as to Venue are either
amended) Mandatory or Permissive
EFFECTS OF STIPULATIONS ON VENUE In interpreting stipulations, an inquiry must be

made as to whether or not the agreement is
Stipulations on Venue (W-E-B) restrictive in the sense that the suit may be filed only
in the place agreed upon, or permissive in that the
The parties may stipulate on the venue as long as parties may file their suits not only in the place
the agreement is: agreed upon, but also in the places fixed by the
Rules. (Supena v. De la Rosa, A.M. No. RTJ-93-1031,
1. In writing; 28 Jan. 1997)
2. Exclusive as to the venue; and
3. Made before the filing of the action. (Sec. 4(b), When Venue is Exclusive
Venue is exclusive when the stipulation clearly
The parties may agree on a specific venue which indicates, through qualifying and restrictive words
could be in a place where neither of them resides. that the parties deliberately exclude causes of

Civil Procedure
actions from the operation of the ordinary NOTE: Although venue may be changed or
permissive rules on venue and that they intended transferred from one province to another by
contractually to designate a specific venue to the agreement of the parties in writing pursuant to Rule
exclusion of any other court also competent and 4, Section 3 of the Rules of Court, such an agreement
accessible to the parties under the ordinary rules on will not be held valid where it practically negates
venue of actions. (Philippine Banking Corp. v. the action of the claimants. (Sweet Lines, Inc. v. Hon.
Tensuan, G.R. No. 106920, 10 Dec. 1993) Bernardo Teves, GR. No. L-37750, 19 May 1978)
In the absence of restrictive words, the stipulation Q: Nutri-Asia purchased plastic containers from
should be deemed as merely an agreement on an Hygienic Packaging Corporation (Hygienic). The
additional forum, not as limiting venue. While they sale was evidenced by Sales Invoice and
are considered valid and enforceable, venue Purchase Orders signed by the employee of
stipulations in a contract do not, as a rule, supersede Nutri-Asia.
the general rule set forth in Rule 4 in the absence of
qualifying or restrictive words. If the language is Subsequently, Hygienic filed a complaint for
restrictive, the suit may be filed only in the place sum of money before the RTC of Manila pursuant
agreed upon by the parties. (Spouses Lantin v. to the stipulation in the sales invoice that “any
Lantion, G.R. No. 160053, 28 Aug. 2006) action arising from the transaction should be
filed with the City of Manila.” Nutri-Asia argued
Example of Words with Restrictive Meaning that the venue was improperly laid since the
complaint should have been filed either before
1. Only; the RTC of San Pedro, Laguna or RTC of Pasig City
2. Solely; where the principal business of Hygienic and
3. Exclusively in this court; Nutri-Asia are located. The venue stated in the
4. In no other court save - ; Sales Invoice could not bind Nutri-Asia since it
5. Particularly; did not give its express conformity to the
6. Nowhere else but/except; stipulation. Is the venue improperly laid?
7. Words of similar import. (Pacific Consultants
International Asia, Inc. v. Schonfeld, G.R. No. A: YES. There is lack of any written contract of sale
166920, 19 Feb. 2007) containing the specific terms and conditions agreed
upon by the parties. They failed to provide evidence
NOTE: In cases where the complaint assails only the of any contract which could have contained
terms, conditions, and/or coverage of a written stipulations on the venue. The Court cannot
instrument and not its validity, the exclusive venue consider Sales Invoice and the Purchase Orders as
stipulation contained therein shall still be binding contracts that would bind the parties as to the venue
on the parties, and thus, the complaint may be of the dispute resolution.
properly dismissed on the ground of improper
venue. (Briones v. CA, G.R. No. 204444, 14 Jan. 2015) The signing of the Purchase Orders by Nutri-Asia’s
employee was limited to acknowledging Hygienics’s
Conversely, therefore, a complaint directly assailing order and facilitating the payment. Since there is no
the validity of the written instrument itself should contractual stipulation that can be enforced on the
not be bound by the exclusive venue stipulation venue, the rules on venue under the Rules of Court
contained therein and should be filed in accordance shall govern. (Hygienic Packaging Corporation v.
with the general rules on venue. To be sure, it would Nutri-Asia, Inc., doing business under the name and
be inherently consistent for a complaint of this style of UFC Philippines, G.R. No. 201302, 23 Jan.
nature to recognize the exclusive venue stipulation 2019)
when it, in fact, precisely assails the validity of the
instrument in which such stipulation is contained.
(Ibid.)

2022 GOLDEN NOTES
Remedial Law
Evidentiary Facts
E. PLEADINGS
Those facts which are necessary for determination
of the ultimate facts; they are the premises upon
which conclusions of ultimate facts are based.
Pleadings are the written statements of the
(Tantuico v. Republic, G.R. No. 89114, 2 Dec. 1991)
respective claims and defenses of the parties
submitted to the court for appropriate judgment.
Ultimate Facts
(Sec. 1, Rule 6, ROC, as amended) (2007 BAR)
It is the essential facts constituting the plaintiff's

Functions:
cause of action. A fact is essential if it cannot be
stricken out without leaving the statement of the
1. To inform the defendant clearly and definitely
cause of action insufficient. A pleading should state
of the claims made against him so that he may
the ultimate facts essential to the rights of action or
be prepared to meet the issues at trial;
defense asserted, as distinguished from mere
conclusion of fact, or conclusion of law. An
2. To inform the defendant of all material facts on
allegation that a contract is valid, or void, as in the
which the plaintiff relies to support his demand;
instant case, is a mere conclusion of law. (Remitere
and
v. Yulo, G.R. No. L-19751, 28 Feb. 1966)
3. To state the theory of a cause of action which

NOTE: The allegations of the complaint must be
forms the bases of plaintiff’s claim of liability.
based on the ultimate facts, including the
(Tantuico v. Republic, G.R. No. 89114, 2 Dec.
evidence on which the party pleading relies for his
1991)
claims or defenses which need to be attached to the
complaint. (Sec. 1 Rule 8, ROC, as amended)
1. KINDS OF PLEADINGS (RULE 6)
NOTE: Basic is the rule that it is the allegations of
1. Complaint; the complaint and not the prayer that determines
2. Answer; the basis of the plaintiff’s relief. In the same vein, the
3. Counterclaim; prayer will not be construed as enlarging the
4. Cross-claim; complaint so as to embrace a cause of action not
5. Reply; pleaded therein. (Republic v. Capital Resources Corp.,
6. Rejoinder; G.R. No. 217210, 7 Nov. 2016, J. Caguioa)
7. Third party (fourth-party etc.) complaint
Counter-claim; ANSWER
8. Counter-cross-claim; and
9. Complaint-in-intervention. It is the pleading in which the defending party sets
forth his or her affirmative or negative defenses.
COMPLAINT (Sec. 4, Rule 6, ROC, as amended)
Pleading alleging the plaintiff’s or claiming party’s It may likewise be the response to a counterclaim or
cause or cause of action. (Sec. 3, Rule 6, ROC, as a crossclaim. It may be an answer to the complaint,
amended) an answer to a counterclaim, or an answer to a
NOTE: The names and residences of the plaintiff cross-claim. (Riano, 2019)
and defendant, if known, must be stated. (Sec. 3, Rule
6, ROC, as amended)

Civil Procedure
Two Kinds of Defenses that may be set forth in Negative Pregnant

the Answer
It is a negative implying also an affirmative and
1. Negative defenses; and which, although is stated in negative form, really
2. Affirmative defenses admits the allegations to which it relates. (Riano,
2019) It is a form of a negative expression which
NEGATIVE DEFENSES carries with it an affirmation or at least an
implication of some kind favorable to the adverse
The specific denial of the material fact or facts party. (Valdez v. Dabon, A.C. No. 7353, 16 Nov. 2015)
alleged in the pleading of the claimant essential to
his or her cause or causes of action. (Sec. 5(a), Rule NOTE: It does not qualify as a specific denial. It is
6, ROC, as amended) conceded to be actually an admission. Otherwise
stated, it refers to a denial which implies its
Kinds of Specific Denials affirmative opposite by seeming to deny only a
qualification or an incidental aspect of the allegation
1. Absolute denial - the defendant specifies each but not the main allegation itself. (Riano, 2019)
material allegation of fact the truth of which he
or she does not admit and, whenever A denial in the form of a negative pregnant is an
practicable, sets forth the substance of the ambiguous pleading, since it cannot be ascertained
matters upon which he relies to support his whether it is the fact, or only the qualification that is
denial; intended to be denied. (Galofa v. Nee Bon Sing, G.R.
No. L-22018, 17 Jan. 1968)
2. Partial denial – the defendant denies only a
part of the averment, whereby he or she Example: An assertion of a defendant which
specifies that part the truth of which he admits questions the amount of money involved in a bank
and denies only the remainder; and account but does not deny its existence, when such
is the issue in the case, is said to have admitted the
3. Denial by disavowal of knowledge - the existence of such bank account. The denial of the
defendant alleges that he or she is without amount of money deposited is pregnant with an
knowledge or information sufficient to form a admission of the existence of the bank account.
belief as to the truth of a material averment (Republic of the Philippines v. Sandiganbayan, G.R.
made in the complaint. (Sec. 10, Rule 8, ROC, as No. 152154, 15 July 2003)
amended)
AFFIRMATIVE DEFENSES
This form of denial must be availed of with sincerity
and good faith, not for the purpose of confusing the It is an allegation of a new matter which, while
other party, nor for purposes of delay. (Warner hypothetically admitting the material allegations in
Barnes v. Reyes, G.R. No. L-9531, 14 May 1958) the pleading of the claimant, would nevertheless
prevent or bar recovery by him or her. (Sec. 5(b),
Insufficient Denials or Denials amounting to an Rule 6, ROC, as amended)
Admission
An affirmative defense is an allegation of a new
1. General denial - an admission of the material matter which, while hypothetically admitting the
averments in a pleading asserting a claim or material allegations in the pleading of the claimant,
claims (Sec. 11, Rule 8, ROC, as amended); and would nevertheless prevent or bar recovery by him.
2. Denial in the form of a negative pregnant The affirmative defenses include fraud, statute of
(Riano, 2019) limitations, release, payment, illegality, statute of
frauds, estoppel, former recovery, discharge in
bankruptcy, and any other matter by way of

2022 GOLDEN NOTES
Remedial Law
confession and avoidance. (Delgado v. GQ Realty Ltd. V. Lepanto Consolidated Mining Co., G.R. No.
Development Corp., G.R. No. 241774, 25 Sept. 2019, J. 175799, 28 Nov. 2011)
Caguioa)
According to Rule 6, Section 5(b) of the Rules of
Kinds of Affirmative Defenses Court, an affirmative defense is an allegation of a
new matter which, while hypothetically admitting
A defendant shall raise his or her affirmative the material allegations in the pleading of the
defenses in his or her answer, which shall be limited claimant, would nevertheless prevent or bar
to the following recovery by him. The affirmative defenses include
fraud, statute of limitations, release, payment,
A. Under Sec. 5(b), Rule 6, 2019 Revised Rules illegality, statute of frauds, estoppel, former
on Civil Procedure recovery, discharge in bankruptcy, and any other
matter by way of confession and avoidance.
1. Fraud; (Francisco C. Delgado, represented by Jose Mari
2. Statute of Limitations; Delgado v. GQ Realty Corp. G.R. No. 241774, 25 Sept.
3. Release; 2019, J. Caguioa)
4. Payment;
5. Illegality; COUNTERCLAIMS
6. Statute of Frauds;
7. Estoppel; It is any claim which a defending party may have
8. Former Recovery; against an opposing party. (Sec. 6, Rule 6, ROC, as
9. Discharge of Bankruptcy; amended) It partakes of a complaint by the
10. Any other matter by way of confession or defendant against the plaintiff. (Pro-Line Sports Inc.
avoidance; and v. CA, G.R. No. 118192, 23 Oct. 1997) (1999 BAR)
11. Grounds for the dismissal of the complaint:
a. The court has no jurisdiction over the NOTE: A counterclaim is in itself a distinct and
subject matter; independent cause of action. When filed, there are
b. There is another action pending between two simultaneous actions between the same parties.
the same parties for the same cause; or (Riano, 2019, citing Padilla v. Globe Asiatique Realty
c. The action is barred by a prior judgment. Holdings Corporation, G.R. No. 207376, 06 Aug. 2014)
B. Under Sec. 12, Rule 8 of the 2019 Revised COMPULSORY COUNTERCLAIM;

Rules on Civil Procedure PERMISSIVE COUNTERCLAIM
1. The court has no jurisdiction over the person Two kinds of Counterclaims (2007 BAR)
of the defending party;
2. The venue is improperly laid; COMPULSORY PERMISSIVE
3. The plaintiff has no legal capacity to sue; COUNTERCLAIM COUNTERCLAIM
4. That the pleading asserting the claim states One which arises out It does not arise out of
no cause of action; and of or is necessarily nor is it necessarily
5. That a condition precedent for filing the claim connected with the connected with the
has not been complied with. (Sec. 12(a), Rule transaction or subject matter of the
8, ROC, as amended) occurrence that is the opposing party’s
subject matter of the claim. There is an
NOTE: Raising affirmative defenses does not opposing party’s absence of a logical
amount to acceptance of the jurisdiction of the claim. (Sec. 7, Rule 6, connection with the
court, but praying for affirmative reliefs is ROC, as amended) subject matter of the
considered voluntary appearance and acquiescence (1999, 2004 BAR) complaint.
to the court’s jurisdiction. (NM Rothschild & Sons

Civil Procedure
It does not require for GR: The court has

its adjudication the It may require for its jurisdiction to Must be within the
presence of third adjudication the entertain both as to jurisdiction of the
parties of whom the presence of third the amount and court where the case
court cannot acquire parties over whom nature. is pending and
jurisdiction. (Sec. 4, the court cannot XPN: In an original cognizable by regular
Rule 6, ROC, as acquire jurisdiction. action before the courts of justice
amended) RTC, the otherwise, defendant
GR: Barred if not set counterclaim may be will have to file it in
up in the same action. considered separate proceeding
(Sec. 7, Rule 6; Sec. 2, compulsory which requires
Rule 9, ROC, as regardless of the payment of docket
amended) amount. (Sec. 7, Rule fee.
6, ROC, as amended)
XPN: Unless
otherwise allowed by Test to Determine whether the Counterclaim is
the Rules (Sec. 7, Rule Compulsory (I-R-E-L)
6, ROC, as amended):
Not barred even if not
1. Issues - Are the issues of fact and law raised by
set up in the action.
a. Counterclaim the claim and the counterclaim largely the
arising after same?
answer (Sec. 9,
Rule 11, ROC, as 2. Res judicata - Would res judicata bar a
amended); and subsequent suit on the defendant’s claims,
b. Omitted absent the compulsory counterclaim rule?
counterclaim.
(Sec. 9, Rule 11, 3. Evidence - Will substantially the same evidence
ROC, as support or refute the plaintiff’s claim, as well as
amended) the defendant’s counterclaim?
Need not be Must be answered;
answered; No default Otherwise, default 4. Logical relation - Is there any logical relation
(Gojo v. Goyala, G.R. (Sarmiento v. Juan, between the claim and the counterclaim?
No. L-26768, 30 Oct. G.R. No. L-56605, 28
1970) Jan. 1983) A positive answer to all four questions would
Not an initiatory indicate that the counterclaim is compulsory.
Initiatory pleading.
pleading. (Buncayao v. Fort Ilocandia Property, G.R. No.
Must be accompanied 170483, 19 Apr. 2010; GSIS v. Heirs of Caballero, G.R.
by a certification No. 158090, 4 Oct. 2010)
against forum
Need not be shopping and NOTE: The rule that a compulsory counterclaim not
accompanied by a whenever required by set up is barred, when applied to the municipal trial
certification against law, also a certificate court, presupposes that the amount involved is
forum shopping and to file action by the within the said court's jurisdiction. Otherwise,
certificate to file Lupong there would be an absurd situation where a claim
action by the Lupong Tagapamayapa must be filed with the municipal court which it is
Tagapamayapa. (Santo Tomas prohibited from taking cognizance of, being beyond
University v. Surla, G.R. its jurisdiction. (Calo v. Ajax International, Inc., G.R.
No. 129718, 17 Aug. No. L-22485, 13 Mar. 1968)
1998)

2022 GOLDEN NOTES
Remedial Law
For, even if the counterclaim in excess of the amount Effect if a Crossclaim was not Set Up
cognizable by the inferior court is set up, the
defendant cannot obtain positive relief. The Rules GR: Barred if not set up. (Sec.2, Rule 9, ROC, as
allow this only for the defendant to prevent the amended)
plaintiff from recovering from him. This means that
should the court find both plaintiff's complaint and XPN:
defendant's counterclaim (for an amount exceeding 1. Crossclaim arising after answer (Sec. 9, Rule 11,
said court's jurisdiction) meritorious, it will simply ROC, as amended); and
dismiss the complaint on the ground that defendant 2. Omitted crossclaim. (Ibid.)
has a bigger credit. Since the defendant still has to
institute a separate action for the remaining balance Counterclaim vs. Crossclaim (1999 BAR)
of his counterclaim, the previous litigation did not
really settle all related controversies. (Ibid.) COUNTERCLAIM CROSSCLAIM
It is a claim against an
It is a claim against a
Effect on Counterclaim when Complaint is opposing party, (Sec.
co-party. (Sec. 8, Rule
Dismissed 6, Rule 6, ROC, as
6, ROC, as amended)
amended)
Notwithstanding the dismissal of the action, the It may or may not
It must arise from the
counterclaim shall not be dismissed in the following arise out of the subject
transaction or
instances: matter of the
occurrence that is the
complaint, as it may
subject matter of the
1. If a counterclaim has been pleaded by the be permissive or
original complaint.
defendant prior to the service upon him or her compulsory. (Sec. 7,
of the plaintiff’s motion to dismiss (Sec. 2, Rule Rule 6, ROC, as
amended)
17, ROC, as amended); and amended)
2. If the dismissal is due to the fault of the plaintiff.
(Sec. 3, Rule 17, ROC, as amended) THIRD (FOURTH, ETC.)-PARTY COMPLAINT
CROSSCLAIM A third (fourth, etc.) party complaint is a claim that

a defending party may, with leave of court, file
Any claim by one party against a co-party arising out against a person not a party to the action, called the
of the transaction or occurrence that is the subject third (fourth, etc.) party defendant, for contribution,
matter of either the original action, or a indemnity, subrogation or any other relief, in
counterclaim therein. Such crossclaim may cover all respect of his or her opponent's claim. (Sec. 11, Rule
or part of the original claim. (Sec. 8, Rule 6, ROC, as 6, ROC, as amended)
amended)
Instances when Third-Party Complaint shall be
Requisites of Crossclaim (1999 BAR) Denied and Separate Action must be Instituted
1. A claim by one party against a co-party; The complaint shall be denied and the defendant
2. It must arise out of the subject matter of the should then institute a separate action, where:
complaint or of the counterclaim; and
3. The cross-claimant is prejudiced by the claim a. The third (fourth, etc.) –party defendant cannot
against him by the opposing party. (Sec. 8, Rule be located within thirty (30) calendar days from
6, ROC, as amended) the grant of such leave;
b. Matters extraneous to the issue in the principal
case are raised; or

Civil Procedure
c. The effect would be to introduce a new and or may have to the plaintiff’s claim. (Capayas v.
separate controversy into the action. (Sec. 11, CFI of Albay, G.R. No. L-475, 31 Aug. 1946)
NOTE: Where the trial court has jurisdiction over
NOTE: Leave of court is necessary in order to the main case, it also has jurisdiction over the third-
obviate delay in the resolution of the complaint, party complaint, regardless of the amount involved
such as when the third-party defendant cannot be as a third-party complaint is merely auxiliary to and
located, or when unnecessary issues may be is a continuation of the main action. (Republic v.
introduced, or when a new and separate Central Surety & Insurance Co., G.R. No. L-27802, 26
controversy is introduced. (Herrera, 2007) Oct. 1968)
When a third-party complaint is filed, it need not be Q: Abby obtained a favorable judgment against
based on the same theory as that in the main UNICAP for a sum of money. For failure to get full
complaint. It can be a different theory altogether. payment, Abby went after UNICAP’s debtor, Ben.
(Philtranco Service Enterprises v. CA, G.R. No. 161909, Ben is a policy holder of Insular. The court’s
25 Apr. 2012) sheriff then served a notice of garnishment to
Insular over several account receivables due to
Third-Party Complaint vs. Rules on Bringing in Ben. Insular refused to comply with the order
New Parties alleging adverse claims over the garnished
amounts. The trial court ordered Insular to
THIRD-PARTY RULES ON BRINGING release to Abby the said account receivables of
COMPLAINT IN NEW PARTIES Ben under the policies. Insular then filed a
If one or more of the petition for certiorari with the CA alleging that
defendants in a the trial judge gravely abused his discretion
counterclaim or when he issued the garnishment order despite
It is proper when
crossclaim is already its adverse claim on the garnished amounts. The
none of the third-
a party to the action, CA gave due course to the petition and annulled
party defendants
then the other the order of the trial court. Is the CA correct?
therein is a party to
necessary parties
the main action.
may be brought in A: NO. Neither an appeal nor a petition for certiorari
(Riano, 2019)
under the rules on is the proper remedy from the denial of a third-
bringing in new party claim. Since the third-party claimant is not
parties. (2004 BAR) one of the parties to the action, he could not, strictly
speak, appeal from the order denying its claim, but
Tests to Determine Whether the Third-Party should file a separate reinvindicatory action against
Complaint is in respect of Plaintiff’s Claim the execution creditor or a complaint for damages
against the bond filed by the judgment creditor in
1. Whether it arises out of the same transaction on favor of the sheriff. The rights of a third-party
which the plaintiff’s claim is based, or, although claimant should be decided in a separate action to
arising out of another or different transaction, be instituted by the third person. (Solidum v. CA, G.R.
is connected with the plaintiff’s claim; No. 161647, 22 June 2006)
2. Whether the third-party defendant would be COMPLAINT-IN-INTERVENTION

liable to the plaintiff or to the defendant for all
or part of the plaintiff’s claim against the It is a pleading filed for the purpose of asserting a
original defendant; and claim against either or all of the original parties.
(Sec. 3, Rule 19, 2019, ROC, as amended)
3. Whether the third-party defendant may assert
any defenses which the third-party plaintiff has

2022 GOLDEN NOTES
Remedial Law
NOTE: Intervention is a remedy by which a third e. Intervention will not unduly delay or
party, not originally impleaded in a proceeding, prejudice the adjudication of the rights of
becomes a litigant therein to enable him to protect original parties; and
or preserve a right or interest which may be affected f. Intervenor’s rights may not be fully
by such proceeding. (Restaurante Las Conchas v. protected in a separate proceeding. (Sec. 1,
Llego, G.R. No. 119085, 09 Sept. 1999, citing First Rule 19, ROC, as amended)
Philippine Holdings Corporation v. Sandiganbayan,
G.R. No. 88345, 01 Feb. 1996) NOTE: In general, an independent controversy
cannot be injected into a suit by intervention, hence,
Kinds of Pleadings-in-Intervention such intervention will not be allowed where it
would enlarge the issues in the action and expand
1. Complaint-in-intervention – If intervenor the scope of the remedies. It is not proper where
asserts a claim against either or all of the there are certain facts giving the intervenor’s case
original parties. an aspect peculiar to himself and differentiating it
2. Answer-in-intervention – If intervenor unites clearly from that of the original parties; the proper
with the defending party in resisting a claim course is for the would-be intervenor to litigate his
against the latter (Sec. 3, Rule 19, ROC, as claim in a separate suit. (Mactan-Cebu International
amended) Airport Authority v. Heirs of Minoza, G.R. No. 186045,
02 Feb. 2011)
NOTE: Intervention is never an independent action,
but is ancillary and supplemental to an existing How to Intervene
litigation, and in subordination to the main
proceeding. (Saw v. CA, G.R. No. 90580, 08 Apr. 1991) 1. With leave of court, the court shall consider the
An intervention is merely an interlocutory requisites mentioned in Section 1, Rule 19;
proceeding dependent or subsidiary to the main 2. Motion to intervene may be filed at any time
action. If the main action ceased to exist, there is no before rendition of judgment by the trial court
pending proceeding wherein the intervention may (Sec. 2, Rule 19, ROC, as amended); and
be based. A judgment approving a compromise 3. Copy of the pleadings-in-intervention shall be
agreement is final and immediately executory. attached to the motion and served on the
Continuance of an intervention in this case would original parties. (Sec. 2, Rule 19, ROC, as
serve no purpose at all. (Ordoñez v. Gustillo, G.R. No. amended)
81835, 20 Dec. 1990)
When to Intervene
Requisites for an Intervention by a non-party in
an action pending in court (2000 BAR) GR: The motion to intervene must be filed at any
time before rendition of judgment by the trial court.
1. There must be a motion for leave to intervene (Sec.2, Rule 19, ROC, as amended)
filed before rendition of judgment by the trial
court. XPNs:
2. Movant must show that he or she has a:
1. With respect to indispensable parties,
a. Legal interest in the matter in controversy; intervention may be allowed even on appeal
b. Legal interest in the success of either of the (Falcasantos v. Falcasantos, G.R. No. L-4627, 29
parties; or Mar. 1952);
c. Legal interest against both; or 2. When the intervenor is the Republic (Lim v.
d. So situated as to be adversely affected by a Pacquing, G.R. No. 115044, 27 Jan. 1995); and
distribution or other disposition of 3. Intervention may be allowed after judgment
property in the custody of the court or of an where necessary to protect some interest which
officer thereof. cannot otherwise be protected, and for the

Civil Procedure
purpose of preserving the intervenor’s right to When a Reply may be filed

appeal. (Pinlac v. CA, G.R. No. 91486, 10 Sept.
2003) The plaintiff may file a reply ONLY if the defending
party attaches an actionable document to his
Remedies for Denial of Motion for Intervention answer. (Sec. 10, Rule 6, supra.)
Where the lower court’s denial of a motion for Necessity of Filing a Reply under Oath
intervention amounts to a final order, an appeal is
the proper remedy, as when the denial leaves the Where the defense in the answer is based on an
intervenor without further remedy or resort to actionable document, a reply under oath pursuant
judicial relief. to Sec. 8 of Rule 8 may be made. Otherwise, the
genuineness and due execution of the document
A prospective intervenor’s right to appeal applies shall be deemed admitted.
only to the denial of his intervention. Not being a
party to the case, a person whose intervention the REJOINDER
court denied has no standing to question the
decision of the court. (Foster-Gallego v. Sps. Galang, A rejoinder is the defendant’s answer to the
G.R. No. 130228, 27 July 2004) plaintiff’s replication. (Bouvier, 6th ed., 1856)
Answer to Complaint-in-Intervention When a Rejoinder may be filed
The original parties are required to file an answer to In the event of an actionable document attached to
the complaint-in-intervention within 15 days from the reply, the defendant may file a rejoinder if the
notice of the order admitting the same, unless a same is based solely on an actionable document.
different period is fixed by the court. (Sec. 4, Rule 19, (Sec. 10, Rule 6, ROC, as amended) Therefore, the
ROC, as amended) rejoinder is limited to said actionable document.
NOTE: Failure to file the required answer can give
rise to default. (Lim v. National Power Corporation, PLEADINGS ALLOWED UNDER THE 2016
G.R. No. 178789, 14 Nov. 2012) REVISED RULES OF PROCEDURE FOR SMALL
CLAIMS CASES AND THE 1991 REVISED RULES
REPLY ON SUMMARY PROCEDURE
A pleading, the office or function of which is to deny, Pleadings allowed in Small Claims Cases
or allege facts in denial, or avoidance of new matters
alleged in, or relating to, said actionable document. 1. Statement of Claim (Form 1-SSC);
(Sec. 10, Rule 6, ROC, as amended)
NOTE: It must be accompanied by a
It is a responsive pleading to an answer. certification of non-forum shopping. If his
claim is based on an actionable document, he is
NOTE: All new matters alleged in the answer are also required to attach two duly certified
deemed controverted. If the plaintiff wishes to copies of such document as well as affidavits of
interpose any claims arising out of the new matters witnesses and other evidence to support the
so alleged, such claims shall be set forth in an claim. This is a mandatory requirement. No
amended or supplemental complaint. (Sec. 4, Rule evidence shall be allowed during the hearing
19, ROC, as amended) which was not attached to the claim unless
good cause is shown for the admission of the
evidence. (Sec. 6, A.M. No. 08-8-7-SC)
2. Response;

2022 GOLDEN NOTES
Remedial Law
3. Counterclaim: Pleadings allowed in Cases covered by the Rules

a. Compulsory counterclaim on Summary Procedure
i. Is within the coverage of the Rule,
exclusive of interest and costs; 1. Complaint;
ii. Arises out of the same transaction or 2. Compulsory counterclaim;
event that is the subject matter of the
plaintiff’s claim; NOTE: While in small claims cases, permissive
iii. Does not require for its adjudication counterclaim is allowed as long as the amount
the joinder of third parties; and and nature thereof are within the coverage of
iv. Is not a subject of another pending the Rules of Procedure for Small Claims cases,
action. (Sec. 15, A.M. No. 08-8-7-SC) the same is not allowed under the Rules on
Summary Procedure.
b. Permissive counterclaim
3. Crossclaims pleaded in the answer; and
Counterclaim against the plaintiff that does not 4. Answer to these pleadings (Sec. 3, Rules on
arise out of the same transaction or occurrence, Summary Procedure)
provided that the amount and nature thereof
are within the coverage of the Rule and the Prohibited Pleadings, Motions and Petitions in
prescribed docket and other legal fees are paid. Small Claims and Summary Procedure
(Sec. 15, A.M. No. 08-8-7-SC)
1. GR: Motion to dismiss the complaint (2016
Civil Cases covered by the Rule on Small Claims BAR)
Claims or demands may be: XPNs: In cases covered by summary procedure, a

Motion to Dismiss may be filed only either on
1. For money owed under any of following: the ground of:
a. Lack of jurisdiction over the subject matter;
a. Contract of lease; or
b. Contract of loan; b. Failure to refer the dispute to the Lupon
c. Contract of services; Tagapamayapa, as required by the LGC.
d. Contract of sale; or
e. Contract of mortgage; In cases covered by small claims, a Motion to
Dismiss is a prohibited pleading which admits
NOTE: On February 27, 2019, A.M. No. 08-8-7- no exceptions. (SC En Banc Resolution dated
SC was amended by the SC, which increases the October 27, 2009 in A.M. No. 08-8-7-SC)
amount of small claims from P 300,000.00 to P
400,000.00 in MeTC, and from P 200,000.00 to 2. Motion for a bill of particulars;
P 300,000.00 in MTCC, MTC and MCTC. (A.M. 3. Motion for new trial, or for reconsideration of a
No. 08-8-7-SC, as amended, effective April 1, judgment, or for reopening of trial;
2019)
NOTE: Judgment referred herein is a judgment
2. For liquidated damages arising from contract; on the merits.
and
3. For the enforcement of a barangay amicable 4. Petition for relief from judgment;
settlement or an arbitration award involving a 5. Motion for extension of time to file pleadings,
money claim covered by this rule pursuant to affidavits, or any other paper;
Sec. 417 of the Local Gov’t Code. (Sec. 4, A.M. No. 6. Memoranda;
08-8-7-SC)

Civil Procedure
7. Petition for certiorari, mandamus, or CAPTION

prohibition against any interlocutory order
issued by the court; The caption sets forth the: (N-T-D)
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement; 1. Name of the court;
10. Reply; 2. Title of the action; and
11. Third-party complaints; and 3. Docket number, if assigned (Sec. 1, Rule 7, ROC,
12. Interventions (Sec.14, A.M. No. 08-8-7-SC) as amended).
2. PARTS AND CONTENTS OF A PLEADING OF A The title of the action indicates the names of the
PLEADING (RULE 7) parties. They shall all be named in the original
(Ca-Bo-Si-Ve-C-Na-Su-D) complaint or petition but in subsequent pleadings,
it shall be sufficient if the name of the first party on
1. Caption; each side be stated with an appropriate indication
2. Body – sets forth its designation, the allegations when there are other parties. (Ibid.)
of the party’s claims or defenses, the relief
prayed for, and the date of the pleading: Their respective participation in the case shall be
indicated. (Ibid.)
a. Paragraphs
b. Headings BODY
c. Relief
d. Date; Sets forth the pleading’s designation, the allegations
of party's claims or defenses, the relief prayed for,
3. Signature and address; and its date.
4. Verification (whenever required);
5. Certification against forum shopping; 1. Paragraphs – The allegations in the body of a
6. Names of witnesses who will be presented to pleading shall be divided into paragraphs so
prove a party’s claim or defense; numbered as to be readily identified, each of
7. Summary of the witnesses’ intended which shall contain a statement of a single set of
testimonies, provided that the judicial affidavits circumstances so far as that can be done with
of said witnesses shall be attached to the convenience. A paragraph may be referred to by
pleading and form an integral part thereof. its number in all succeeding pleadings.
NOTE: Only witnesses whose judicial affidavits 2. Headings

are attached to the pleading shall be presented by a. When two or more causes of action are
the parties during trial. Except if a party presents joined, the statement of the first shall be
meritorious reasons as basis for the admission of prefaced by the words “first cause of
additional witnesses, no other witness or affidavit action," of the second by "second cause of
shall be heard or admitted by the court; and action," and so on for the others.
b. When one or more paragraphs in the
8. Documentary and object evidence in support of answer are addressed to one of several
the allegations contained in the pleading. (Sec. 6, causes of action in the complaint, they shall
Rule 7, ROC, as amended) be prefaced by the words "answer to the
first cause of action" or "answer to the
second cause of action" and so on; and
when one or more paragraphs of the
answer are addressed to several causes of
action, they shall be prefaced by words to
that effect.

2022 GOLDEN NOTES
Remedial Law
3. Relief – The pleading shall specify the relief any attorney, law firm, or party that violated the
sought, but it may add a general prayer for such rule, or is responsible for the violation. (Ibid.)
further or other relief as may be deemed just or
equitable. NOTE: Absent exceptional circumstances, a law firm
4. Date. (Sec. 2, Rule 7, ROC, as amended) shall be held jointly and severally liable for a
violation committed by its partner, associate, or
SIGNATURE AND ADDRESS employee. (Ibid.)
Every pleading and other written submissions to Sanctions for Non-Compliance

the court must be signed by the plaintiff or counsel
representing him or her. (Sec. 3, Rule 7, ROC, as Sanction shall include, but shall not be limited to:
amended)
1. Non-monetary directive or sanction;
Effect of Counsel’s Signature 2. An order to pay a penalty in court; or
3. If imposed on motion and warranted for
The signature of counsel constitutes a certificate by effective deference, an order directing
him that: payment to the movant of part or all the
reasonable attorney’s fees and other expenses
1. He has read the pleading and document; directly resulting from the violation, including
2. To the best of his knowledge, information, and attorney’s fees for the filing of the motion for
belief, formed after an inquiry reasonable sanction. (Sec. 3, Rule 7, ROC, as amended)
under the circumstances:
VERIFICATION
a. It is not being presented for any improper
purpose, such as to harass, cause How Pleadings are verified
unnecessary delay, or needlessly increase
the cost of litigation; It is verified by an affidavit of an affiant duly
b. The claims, defenses, and other legal authorized to sign said verification. The
contentions are warranted by existing law authorization of the affiant to act on behalf of a
or jurisprudence, or by a nonfrivolous party, whether in the form of a secretary’s
argument for extending, modifying, or certificate of special power of attorney, should be
reversing existing jurisprudence; attached to the pleading, and shall allege the
c. The factual contentions have evidentiary following attestations:
support or, if specifically so identified, will
likely have evidentiary support after 1. The allegations in the pleading are true and
availment of the modes of discovery under correct based on his or her personal
these rules; and knowledge, or based on authentic documents;
d. The denials of factual contentions are 2. The pleading is not filed to harass, cause
warranted on the evidence or, if specifically unnecessary delay, or needlessly increase the
so identified, are reasonably based on belief cost of litigation; and
or a lack of information. (Sec. 3, Rule 7, ROC, 3. The factual allegations therein have
as amended) evidentiary support or, if specifically so
identified, will likewise have evidentiary
Effect of Violation of the Rule on Signature and support after a reasonable opportunity for
Address discovery.
If the court determines, on motion or motu proprio The signature of the affiant shall further serve as a
and after notice and hearing, that this rule has been certification of the truthfulness of the allegations in
violated, it may impose an appropriate sanction, on the pleading. (Sec. 4, Rule 7, ROC, as amended)

Civil Procedure
NOTE: Pleadings need not be under oath, verified or Effects of Lack of or Defective Verification
accompanied by affidavit, except when so required
by law or a rule (Ibid.) A pleading required to be verified that contains a
verification based on “information and belief,” or
Significance of Verification upon “knowledge, information and belief,” or lacks
the proper verification shall have the following
It is intended to secure an assurance that the effects:
allegations in a pleading are true and correct and
not the product of the imagination or a matter of 1. It shall be treated as an unsigned pleading.
speculation, and that the pleading is filed in good (Sec. 4, Rule 7, ROC, as amended)
faith. (Riano, 2019, citing Sarmiento v. Zaratan, G.R.
No. 167471, 05 Feb. 2007; BPI vs CA, G.R. No. 170625, 2. It does not necessarily render the pleading
17 Oct. 2008) defective. It is only a formal and not a
jurisdictional requirement. The requirement is
Example of Pleadings that must be verified a condition affecting only the form of the
pleading (Benguet Corp. v. Cordillera Caraballo
1. Petition for relief from judgment; Mission, Inc., G.R. No. 155343, 02 Sept. 2005) and
2. Petition for review from the RTCs to the CA; non-compliance therewith does not
3. Petition for review from the CTA and quasi- necessarily render it fatally defective.
judicial agencies to the CA; (Sarmiento v. Zaranta, G.R. No. 167471, 05 Feb.
4. Appeal by certiorari from the CA to the SC; 2007)
5. Petition for annulment of judgments or final
orders and resolutions; 3. The absence of verification may be corrected
6. Complaint for injunction; by requiring an oath. The rule is in keeping
7. Application for appointment of receiver; with the principle that rules of procedure are
8. Application for support pendente lite; established to secure substantial justice and
9. Petition for certiorari against the judgments, that technical requirements may be dispensed
final orders or resolutions of constitutional with in meritorious cases. (Pampanga Sugar
commissions; Development Co., Inc. v. NLRC, G.R. No. 112650,
10. Petition for certiorari, prohibition, mandamus, 29 May 1997)
quo warranto
11. Complaint for expropriation; CERTIFICATION AGAINST FORUM SHOPPING
12. Complaint for forcible entry or unlawful
detainer; Forum Shopping (2006 BAR)
13. Petition for indirect contempt;
14. Petition for appointment of general guardian; It is an act of a party against whom an adverse
15. Petition for leave to sell or encumber property judgment has been rendered in one forum, seeking
of an estate by a guardian; and possibly getting a favorable opinion in another
16. Petition for the declaration of competency of a forum, other than by appeal or the special civil
ward; action of certiorari. (Sps. Carpio v. Rural Bank of Sto.
17. Petition for habeas corpus; Tomas Batangas, G.R. No. 153171, 04 May 2006)
18. Petition for change of name;
19. Petition for voluntary judicial dissolution of a Elements of Forum Shopping:
corporation;
20. Petition for correction or cancellation of 1. Identity of parties, or at least such parties
entries in Civil Registry (Sec.1, Rule 108, ROC, as representing the same interests in both actions;
amended); and 2. Identity of rights asserted and reliefs prayed for,
21. All other initiatory pleadings, e.g., Complaint the relief being founded on the same facts; and

2022 GOLDEN NOTES
Remedial Law
3. The identity of two preceding particulars, such relief being founded on the same facts; and (c) the
that any judgment rendered in the other action identity of the two preceding particulars is such that
will, regardless of which party is successful any judgment rendered in the pending case,
amount to res judicata in the action under regardless of which party is successful would
consideration. (Buan v. Lopez, G.R. No. 75349, 13 amount to res judicata.
Oct. 1986)
While there was identity of rights asserted and relief
Q: Yu Han Yat subdivided the subject property prayed for, there was no identity of parties in the
into 60 lots as part of his plan to develop and case at bar. Granted that both Mejia and Bernas
convert the subject property. As a consequence, trace their title from Nava, this does not, by itself,
derivative titles were issued in his name. make their interests identical. Bernas' and Mejia's
Subsequently, it was discovered that Yu Han Yat interests remain separate, and a judgment on one
TCTs overlapped with the boundaries covered will not amount to res judicata on the other as, for
by another title registered in the name of instance, Bernas could, and did, raise the defense
Esperanza Nava. Petitioners Jose A. Bernas and that he was an innocent purchaser for value of the
Felomena S. Mejia claimed ownership over the subject property and thus should not be bound by
subject property. Bernas discovered that there any adverse judgment should Mejia's title be found
was another title covering about three hectares defective. The same reasoning applies to
which overlapped a portion of the property. respondent's assertion that Mejia's and Bernas'
Bernas filed an Affidavit of Adverse Claim on Yu claims were now barred by res judicata because the
Han Yat's TCTs. The Register of Deeds of Quezon Heirs of Nava did not appeal. The heirs of Nava hold
City refused to record the subject mortgages an interest separate from Mejia's and Bernas', and
affecting the Yu Han Yat TCTs. This prompted Yu the latter could not be adversely affected by the fact
Han Yat to file another consulta with the LRA that the Heirs of Nava no longer filed an appeal. (Jose
which ordered the registration of the mortgage A. Bernas v. Estate of Felipe Yu Han Yat, G.R. No.
to the properties. Afterwards, Yu Han Yat filed a 195908, 15 Aug. 2018, J. Caguioa)
Petition for Quieting of Title before the RTC of
Quezon City. Bernas also filed an Answer with Nature of the Certification against Forum
Application for Injunctive Relief to restrain Yu Shopping
Han Yat from undertaking development works
on the subject property. Respondent claims that It is a mandatory requirement in filing a complaint
petitioners violated the rule against forum and other initiatory pleadings asserting a claim or
shopping when petitioner Bernas failed to relief. (Sec. 5, Rule 7, ROC, as amended)
inform the Court that a similar case was pending
because Mejia had filed an appeal of the assailed NOTE: This rule also applies to special civil actions
CA Decision subsequent to the filing by Bernas. since a special civil action is governed by the rules
This failure supposedly constitutes a violation for ordinary civil actions, subject to the specific
of Section 5, Rule 7 of the Rules of Court. In rules prescribed for special civil action. (Riano,
addition, respondent also asserts that since the 2019, citing Wacnang v. COMELEC, G.R. No. 178024,
heirs of Esperanza Nava (Heirs of Nava) did not 17 Oct. 2008)
appeal the CA Decision, then the same
constitutes res judicata as regards petitioners Res judicata may also be applied to decisions
Bernas and Mejia. Thus, the case should be rendered by agencies in judicial or quasi-judicial
dismissed. proceedings and not to purely administrative
proceedings. Thus, shopping, in the concept of res
A: NO. Forum shopping where there exist: (a) judicata, is applicable to judgments or decisions of
identity of parties, or at least such parties as administrative agencies performing judicial or
represent the same interests in both actions; (b) quasi-judicial functions. (Malixi v. Baltazar, G.R. No.
identity of rights asserted and relief prayed for, the 208224, 22 Nov. 2017)

Civil Procedure
NOTE: The dismissal of all cases involved in forum Motion for Reconsideration was pending
shopping is a punitive measure against the resolution. Is Braña’s fact of iling of three
deplorable practice of litigants resorting to different successive petitions with the Court of Appeals
fora to seek similar reliefs, so that their chances of violated the rule against forum shopping?
obtaining a favorable judgment is increased. This
results in the possibility of different competent A: NO. Forum shopping is the act of a litigant who
tribunals arriving at separate and contradictory repetitively availed of several judicial remedies in
decisions. Moreover, it adds to the congestion of the different courts, simultaneously or successively, all
heavily burdened dockets of the courts. To avoid substantially founded on the same transactions and
this grave evil, the Court has held that the rules on the same essential facts and circumstances, and all
forum shopping must be strictly adhered to. (The raising substantially the same issues, either pending
Heirs of Inocentes and Raymundo Mampo v. Josefina in or already resolved adversely by some other
Morada, G.R. No. 214526, 03 Nov. 2020, J. Caguioa) court, to increase his chances of obtaining a
favorable decision if not in one court, then in
Q: Department of Finance-Revenue Integrity another.
Protection Service (DOF-RIPS) filed a Joint
Complaint-Affidavit charging Emelita Maraasin The circumstances in the filing of the pleadings
Braña with violation of Sections 7 and 8 of R.A. negate forum shopping. Braña, in filing the Petition
No. 3019 and Section 8 of R.A. No. 6713, Articles for Certiorari, sought to prevent the
171 (4) and 183 of the RPC, Grave Misconduct, implementation of the assailed Decision of the
and Serious Dishonesty. The DOF-RIPS alleged petitioner pending resolution of her Motion for
that Braña acquired illegal wealth amounting to Reconsideration. The Petition for Review, on the
P8,708,025.98 from the year 2001 to 2013, other hand, is an appeal on the assailed Order of the
which were disproportionate to her and her Ombudsman which dismissed the Motion for
husband's lawful income. The amount was Reconsideration.
determined after DOF-RIPS found irregularities
in her SALN in which she failed to disclose The reliefs sought for in the pleadings are
several real and personal properties and made dissimilar such that the judgment in one of the
misleading and inconsistent declarations. petitions is not a claim preclusion to the other.
Braña, thereafter, filed several pleadings Furthermore, the CA, upon consolidation of the
assailing the Decision of the Office of petitions, dismissed the Petition for Certiorari for
Ombudsman. Braña initially filed a Motion for being moot and academic; thus, negating the
Reconsideration of the Decision on April 19, existence of forum shopping. (Office of the
2016 on grounds of errors of facts or law that are Ombudsman v Emelita Brana, G.R. 238903, 24 Mar.
prejudicial to her interest. Several days 2021)
thereafter, she filed a Petition for Injunction
(with Urgent Application for Issuance of Q: Danes Sanchez filed a complaint for damages
Temporary Restraining Order [TRO] or Status against the University of Santo Tomas for their
Quo Ante Order and/or Writ of Preliminary refusal to release his Transcript of Records. UST
Injunction [WPI]) which sought to enjoin the filed a motion to dismiss on the ground that
Ombudsman from implementing the Decision. Danes Sanchez sought administrative recourse
On April 28, 2016, the CA issued a Resolution before the Commission on Higher Education
denying the Petition for Injunction by reason of (CHED), thus, it had primary jurisdiction to
lack of jurisdiction. Undeterred, Braña filed a resolve matters pertaining to school
Petition for Certiorari (with Urgent Application controversies, and not the Regional Trial Court.
for Issuance of TRO or Status Quo Ante Order UST claims that Danes is guilty of forum
and/or WPI) under Rule 65, docketed as CA-G.R. shopping as it sought recourse with both the
SP No. 07429-MIN, assailing the implementation CHED and the RTC. Will UST’s claim prosper?
of the January 27, 2016 Decision, while her

2022 GOLDEN NOTES
Remedial Law
A: NO. There is no forum shopping in this case counsel of record to sign on his behalf. (Vda. De
because CHED is without quasi-judicial power and Formoso v. Philippine National Bank, G.R. No.
cannot make any disposition of the case whether 154704, 01 June 2011)
favorable or otherwise. Forum shopping only exists
when a party seeks favorable opinion in another Execution of Certificate against Forum Shopping
court after an adverse decision or instituting two or when there are Two or More Plaintiffs
more actions grounded on the same case hoping for
a favorable decision. (University of Santo Tomas, et GR: All of them must execute the certification of
al., v. Sanchez, G.R. No. 165569, 29 July 2010) non-forum shopping. (Loquias v. Office of the
Ombudsman, G.R. No. 139396, 15 Aug. 2000)
When the Execution of Certification against
Forum Shopping is required NOTE: Those who did not sign will be dropped as
parties to the case. (Vda. De Formoso v. Philippine
The certification against forum shopping is only National Bank, G.R. No. 154704, 01 June 2011)
required in a complaint or other initiatory pleading,
namely: Permissive counterclaim, Crossclaim, Third XPN: Under reasonable or justifiable circumstances,
(fourth, etc.) party complaint, and Complaint-in- as when all the plaintiffs or petitioners share a
intervention. (Sec. 5, Rule 7, ROC, as amended; common interest and invoke a common cause of
Arquiza v. Court of Appeals, G.R. No. 160479, 08 June action or defense, the signature of only one of them
2005) A petition for the issuance of the writ of in the certification against forum shopping
execution is not an initiatory pleading; it does not substantially complies with the Rule. (Heirs of
require a certification against forum shopping. Dinglasan v. Ayala Corp., G.R. No. 204378, 05 Aug.
(2014 BAR) 2019)
Who executes the Certification against Forum Example: When the petitioners are husband and
Shopping wife, and the subject property in the case belongs to
the conjugal property of the said petitioners, the
GR: It is the plaintiff or principal party who executes Certificate of Non-Forum Shopping signed by one of
the certification under oath. (Sec. 5, Rule 7, ROC, as the spouses is deemed to constitute substantial
amended) The certification must be executed by the compliance with the Rules. (Docena v. Hon.
party, not the attorney. Lapesura, G.R. No. 140153, 28 Mar. 2001)
Reason: It is the petitioner and not the counsel who Substantial Compliance with the filing of
is in the best position to know whether he or she or Certification against Forum Shopping (2016
it actually filed or caused the filing of a petition. (Far BAR)
Eastern Shipping Company v. Court of Appeals, G.R.
No. 130068, 01 Oct 1998) GR: The rule is that the certificate of non-forum
shopping must be signed by all the petitioners or
With respect to a corporation, the certification plaintiffs in a case and the signing by only one of
against forum shopping may be signed for and, on them is insufficient.
its behalf, by a specifically authorized lawyer who
has personal knowledge of the facts required to be XPN: Rules on forum shopping were designed to
disclosed in such document. (Cosco Philippines Inc. promote and facilitate the orderly administration of
v. Kemper Insurance Co., G.R. No. 179488, 23 Apr. justice and should not be interpreted with such
2012) absolute literalness as to subvert its own ultimate
and legitimate objective. The rule of substantial
XPN: If, for reasonable or justifiable reasons, the compliance may be availed of with respect to the
party-pleader is unable to sign, he or she must contents of the certification. This is because the
execute a Special Power of Attorney designating his requirement of strict compliance with the

Civil Procedure
provisions regarding the certification of non-forum Q: Sharwin purchased a townhouse from Riel. A
shopping merely underscores its mandatory nature notarized Deed of Absolute Sale was executed by
in that the certification cannot be altogether Riel in favor of Sharwin. The same was also
dispensed with or its requirements completely notarized and the purchase price was paid in
disregarded. It does not thereby interdict full. However, it was later found that all of the
substantial compliance with its provisions under documents that were in Sharwin's possession
justifiable circumstances. (Cavile v. Heirs of Clarita were falsified. A case was then filed by Sharwin
Cavile, G.R. No. 148635, 01 Apr. 2003) against Riel which was dismissed by the RTC for
lack of merit. On appeal, the CA held that since a
Q: CGN and other residents of Baguio filed two notarized document enjoys the presumption of
complaints to enjoin SMIC from cutting and/or regularity, and only clear, strong, and
earth-balling trees. The RTC and the CA convincing evidence can rebut such
dismissed their complaints. They, thus, filed a presumption, the evidence presented by Riel
petition for review on certiorari under Rule 45 was not enough to refute the notarized Deed of
but only 30 of the 202 petitioners signed the Absolute Sale. The Motion for Reconsideration
Verification and Certification against Forum filed by Riel was also denied by the CA. Thus, a
Shopping. Should the petition be dismissed for petition was filed before the SC questioning the
having a defective Verification and Certification CA’s decision.
against Forum Shopping?
a. Is the Certification of Non-Forum Shopping
A: NO. The Court, as emphasized in Altres v. Empleo, attached to the instant Petition valid?
has consistently applied the substantial b. Is the CA correct in dismissing outright
compliance rule when it comes to a supposedly Riel’s Motion for Reconsideration due to the
defective verification and certification against fact that the said pleading was left unsigned
forum shopping attached to a petition. Altres, citing by petitioner Riel's counsel?
Tan v. Ballena, mentioned that the purpose of a c. Is the CA correct in upholding the sale on the
verification was to assure this Court that a petition basis of the presumption of regularity of the
contains allegations that are true, and that it was supposedly notarized Deed of Absolute
filed in good faith. Thus, the signing of the Sale?
verification by some petitioners already served the
purpose contemplated by the verification. However, A:
when it comes to the certification against forum a. YES. According to Section 5, Rule 7 of the Rules
shopping, Altres ruled that the non-signing of Court, it is the plaintiff or principal party who
petitioners shall be dropped from the petition. should execute the certification of non-forum
Nonetheless, there is an exception: when all shopping under oath. However, if, for
petitioners share a common interest, the signature reasonable or justifiable reasons, the party-
of one (1) petitioner in the certification against pleader is unable to sign the certification,
forum shopping is enough to satisfy the substantial another person may be authorized to execute
compliance rule. Here, petitioners all share a the certification on his or her behalf through a
common interest, which is to declare the cutting or Special Power of Attorney. Petitioner Riel
earth-balling of the trees affected by the Expansion claims that she, a senior citizen, was suffering
Project illegal. Hence, the signature of 30 petitioners from sickness while in London, United Kingdom
to the certification against forum shopping amounts at around the time of the filing of the instant
to substantial compliance with the requirement Petition, disabling her from traveling to the
under Rule 45 of the Rules of Court. (Cordillera Philippine Embassy to personally execute a
Global Network, et al. v. Paje, et al., G.R. No. 215988, certification of non-forum shopping. She
10 Apr. 2019) presented a Medical Certificate to show that she
was in poor medical condition, preventing her

2022 GOLDEN NOTES
Remedial Law
from personally executing the Certification at documents cannot be made to apply and may be
the Philippine Embassy. overthrown by highly questionable
circumstances, as may be pointed out by the
While it is true that at the time of the filing of trial court. (Dizon v. Matti, Jr. G.R. No. 215614, 17
the instant Petition, a Special Power of Attorney Mar. 2019, J. Caguioa)
authorizing a representative to execute the
Certification was not attached, petitioner Riel Undertakings of a Party under the Certification
was able to belatedly submit before the Court a against Forum Shopping (2007 BAR)
Special Power of Attorney fully signed by
petitioner Riel and duly authenticated by the 1. That the party has not commenced or filed any
Philippine Embassy in London. The Court has claim involving the same issues in any court,
held that the belated submission of an tribunal, or quasi-judicial agency and, to the
authorization for the execution of a certificate best of his knowledge, no such other action or
of non- forum shopping constitutes substantial claim is pending;
compliance with Sections 4 and 5, Rule 7 of the 2. That if there is such other pending action or
Rules of Court. claim, a complete statement of the present
status thereof; and
b. NO. the CA held that every pleading must be 3. That if he or she should therefore learn that the
signed by the party or counsel representing him same or similar action or claim has been filed or
and that an unsigned pleading produces no is pending, he or she shall report that fact
legal effect. within five days therefrom to the court wherein
his aforesaid complaint or initiatory pleading
While the CA is correct in invoking the aforesaid has been filed. (Sec. 5, Rule 7, 2019 Amendments
Rule, the rest of Section 3, Rule 7 elucidates that to the Rules of Civil Procedure)
the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that Defects and their Effects
the same was due to mere inadvertence and not
intended for delay. In the instant case, the Court DEFECT EFFECT
accepts petitioner Riel's explanation that the Non-Compliance It is not curable by mere
failure of her counsel to affix his signature in the with any of the amendment and shall be a
Motion for Reconsideration was due to an requirements on cause for the dismissal of
honest inadvertence without any intention to Certification action, unless otherwise
delay the proceedings. against Forum provided, upon motion
Shopping (2000, and after hearing. (Ibid.)
c. NO. In Suntay v. Court of Appeals, the Court held 2006 BAR)
though the notarization of the deed of sale in It shall constitute indirect
question vests in its favor the presumption of contempt of court, without
regularity, it is not the intention nor the Submission of a prejudice to the
function of the notary public to validate and False Certification corresponding
make binding an instrument never, in the first administrative and
place, intended to have any binding legal effect criminal actions. (Ibid..)
upon the parties thereto. The intention of the It shall constitute indirect
parties still and always is the primary contempt of court, without
consideration in determining the true nature of prejudice to the
a contract. Non-compliance
corresponding
with any of the
administrative and
Notarization per se is not a guarantee of the Undertakings
criminal actions. (Sps.
validity of the contents of a document. The Oliveros v. Sison, A.M. NO.
presumption of regularity of notarized RTJ-07-2050, 29 Oct. 2008)

Civil Procedure
1. If the forum shopping 2. In Roadway Express, Inc. v. CA, et al. (G.R. No.
is not considered 121488, 21 Nov. 1996), the Court allowed the
willful and deliberate, filing of the certification 14 days before the
the subsequent case dismissal of the petition.
shall be dismissed 3. In Uy v. LandBank (G.R. No. 136100, 24 July
without prejudice, on 2000), the Court had dismissed Uy’s petition
the ground of either for lack of verification and certification against
litis pendentia or res non-forum shopping. However, it
judicata. subsequently reinstated the petition after Uy
2. If the forum shopping submitted a motion to admit verification and
is willful and non-forum shopping certification.
deliberate, both (or
all, if there are more In the foregoing cases, there were special
than two) actions shall circumstances or compelling reasons that justified
Commission of be dismissed with the relaxation of the rule requiring verification and
Forum Shopping prejudice. (Chua v. certification on non-forum shopping.
Metropolitan Bank &
Trust Co., G.R. No. NOTE: Any liberal application of the rule on
182311, 19 Aug. 2009) attachment of certification against forum shopping
It shall be a ground for has to be justified by ample and sufficient reasons
the summary dismissal that maintain the integrity of, and do not detract
of the action, and shall from, the mandatory character of the rule. (Bank of
constitute direct the Philippine Islands v. CA, G.R. No., 168313, 06 Oct.
contempt, as well as 2010)
cause for
administrative Period to invoke Rule on Forum Shopping
sanctions on the party
of the counsel. (Sec. 5, GR: It should be raised at the earliest opportunity.
Rule 7, ROC, as (Young v. Keng Seng, G.R. No.143464, 05 Mar. 2003)
amended) XPNs: It may be invoked in later stages only if the
violation arises from or will result in:
Belated Filing of Certification against Forum
Shopping 1. The loss of jurisdiction over the subject matter;
2. The pendency of another action between the
GR: The lack of certification against forum shopping same parties for the same cause;
is generally not curable by the submission thereof 3. Barring of the action by a prior judgment; or
after the filing of the petition. 4. The Statute of Limitations has been crossed.
(Ibid)
XPN: In certain exceptional circumstances, the
Court has allowed the belated filing of the Q: Mayor Miguel of Koronadal City filed an
certification. action against RD Corporation for the
annulment of the deed of absolute sale over
ILLUSTRATIVE CASES: several real properties of Koronadal City with
the RTC. He alleges irregularities thereto but the
1. In Loyola v. CA, et al. (G.R. No. 117186, 29 June RTC dismissed the petition because the
1995), the Court considered the filing of the certification against forum shopping was signed
certification one day after the filing of an by the City Legal Officer of City of Koronadal and
election protest as substantial compliance with not by Mayor Miguel. Is the RTC correct?
the requirement.

2022 GOLDEN NOTES
Remedial Law
A: YES. It is the mayor, not the City Legal Officer, NOTE: The authorization of the affiant to act on
who has the authority to file suits for the recovery behalf of a party to execute the verification and/or
of funds and property on behalf of the city even the certification against forum shopping, whether in
without the prior authorization from the the form of a secretary’s certificate or a special
Sanggunian. Here, Mayor Miguel had the authority power of attorney, should be attached to the
to institute the action against RD Corporation. pleading. (Sec. 4 & 5, Rule 7, ROC, as amended)
However, being the proper party to file such suits,
Mayor Miguel must necessarily be the one to sign Q: Corporation XYZ is the petitioner in a civil
the certification against forum-shopping, and not case. Alexander, president of corporation XYZ,
the City Legal Officer, who, despite being an official signed the certification against forum shopping
of the City, was merely its counsel and not a party to on behalf of said corporation without
the case. City of Caloocan v. CA, G.R. No. 145004, 03 presenting any proof of authority from the
May 2006) corporation. Is the certification against forum
shopping valid? If not, how may it be cured?
Requirements of a Corporation executing the
Verification/Certification against Forum A: NO. When the petitioner in a case is a
Shopping corporation, the certification against forum
shopping should be signed by its duly authorized
Rule when the Plaintiff is a Juridical Person director or representative. The authorized director
or representative of the corporation should be
GR: The certification against forum shopping where vested with authority by a valid board resolution. A
the plaintiff is a juridical entity like a corporation, proof of said authority must be attached with the
may be executed by a properly authorized person. certification. (PAL v. FASAP, G.R. No. 143088, 24 Jan.
This person may be a lawyer of a corporation. As 2006)
long as he or she is duly authorized by the
corporation and has personal knowledge of the facts 3. MANNER OF MAKING ALLEGATIONS
required to be disclosed in the certification, such
may be signed by the authorized lawyer. (Riano, Every pleading shall contain in a methodical and
2019, citing National Steel Corporation v. CA, G.R. No. logical form a plain, concise, and direct statement of
134468, 29 Aug. 2002) the ultimate facts, including the evidence on which
the party pleading relies for his or her claim or
XPN: The following officers may sign the defense, as the case may be.
verification and certification of non-forum shopping
on behalf of the corporation even in the absence of If a cause of action or defense relied on is based on
a board resolution: law, the pertinent provisions thereof and their
applicability to him or her shall be clearly and
1. Chairperson of the Board of Directors; concisely stated. (Sec. 1, Rule 8, ROC, as amended)
2. President;
3. General Manager; Ultimate Facts vs. Evidentiary Facts
4. Personnel Officer; or
5. Employment Specialist in labor cases ULTIMATE
EVIDENTIARY FACTS
FACTS
These officers are in the position to verify the The essential facts of Those facts which are
truthfulness and correctness of the allegations in the claim. A fact is necessary for
the petition. (Mid Pasig Land and Development essential if it cannot determination of the
Corporation v. Tablante, G.R. No. 162924, 04 Feb. be stricken out ultimate facts; they are
2010) without leaving the the premises upon
statement of the cause which conclusions of
of action inadequate. ultimate facts are

Civil Procedure
(Tantuico, Jr. v. based. (Womack v. 7. Official documents or acts. (Sec. 9, Rule 8, ROC,
Republic, 204 SCRA Industrial Comm., 168 as amended)
428) Colo. 364)
CONDITIONS PRECEDENT
A fact is essential if it
cannot be stricken out It refers to matters which must be complied with
without leaving the before a cause of action arises. (Riano, 2019)
statement of the cause
of action insufficient. Alleging compliance with Conditions Precedent
(Ceroferr Realty
Corporation v. CA, G.R. In any pleading, a general averment of the
No. 139539, 05 Feb. performance or occurrence of all conditions
2002) precedent shall be sufficient. (Sec. 3, Rule 8, ROC, as
They are the principal, The details of probative amended) Otherwise, it may be raised by the
determinate, matter or to the opposing party as an affirmative defense. (Sec.
constitutive facts, particulars of evidence 12(a)(5), Rule 8, ROC, as amended)
upon the existence of by which the material
which, the entire elements are to be Examples of Conditions Precedent
cause of action rests. established.
(Ibid) 1. A tender of payment is required before making
a consignation (Art. 1256, CC);
NOTE: The allegations of the complaint must be 2. Exhaustion of administrative remedies is
based on evidentiary facts on which the party required in certain cases before resorting to
pleading relies for his claims or defenses which judicial action (Lopez v. City of Manila, G.R. No.
need to be attached to the complaint. (Sec. 1 Rule 8, 127139, February 19, 1999; Dy v. CA, G.R. No.
ROC, as amended) 121587, 09 Mar. 1999);
3. Prior resort to barangay conciliation
Facts that may be averred generally proceedings is necessary in certain cases (Book
III, Title I, Chapter 7, LGC);
1. Performance or occurrence of all conditions 4. Earnest efforts toward a compromise must be
precedent (Sec. 3, Rule 8, ROC, as amended); undertaken when the suit is between members
2. Capacity to sue or be sued (Sec. 4, Rule 8, ROC, as of the same family and if no efforts were in fact
amended); made, the case must be dismissed, (Art. 151,
3. Capacity to sue or be sued in a representative FC);
capacity (Sec. 4, Rule 8, ROC, as amended); 5. Arbitration may be a condition precedent when
4. Legal existence of an organized association of the contract between the parties provides for
persons that is made a party (Sec. 4, Rule 8, ROC, arbitration first before recourse to judicial
as amended); remedies. (Riano, 2019)
5. Malice, intent, knowledge or other condition of
the mind of a person (Sec. 5, Rule 8, ROC, as FRAUD, MISTAKE, MALICE, INTENT,
amended); KNOWLEDGE, AND OTHER CONDITIONS OF THE
6. Judgment or decision of a domestic and foreign MIND, JUDGMENTS, OFFICIAL DOCUMENTS OR
court, judicial or quasi-judicial tribunal, or of a ACTS
board or officer without setting forth matter
showing jurisdiction to render it (Sec. 6, Rule 8, Averments of Fraud or Mistake
ROC, as amended); and
The circumstances constituting such fraud or
NOTE: An authenticated copy of the judgment mistake must be stated with particularity. (Sec. 5,
or decision shall be attached to the pleading. Rule 8, ROC, as amended)

2022 GOLDEN NOTES
Remedial Law
These particulars which would necessarily include Averments of Judgment

specific acts of fraud committed against the plaintiff
would help apprise the judge of the kind of fraud It is sufficient to aver the judgment or decision
involved in the complaint. (Riano, 2019) without setting forth matter showing jurisdiction to
render it. (Sec. 6, Rule 8, ROC, as amended)
NOTE: In case of ambiguity, or failure to allege the
circumstances constituting the fraud or mistake, the An authenticated copy of the judgment or decision
remedy is to file a Motion of Bill of Particulars. (Sec. shall be attached to the pleading. (Ibid.)
PLEADING AN ACTIONABLE DOCUMENT
Averments of Malice, Intent, Knowledge or other
conditions of the Mind of a Person Actionable Document
The circumstances constituting such may be It is a written instrument or document which is the
averred generally. (Sec. 5, Rule 8, supra.) basis of an action or a defense (e.g., a promissory
note in an action for collection of a sum of money).
Unlike in fraud or mistake, they need not be stated
with particularity. The rule is borne out of human Pleading an Actionable Document
experience. It is difficult to state the particulars
constituting these matters. (Riano, 2019) Whenever an action or defense is based upon a
written instrument or document:
Q: The complaint alleged that the defendant
acted in bad faith, arbitrarily, illegally, 1. The substance of such instrument or document
wrongfully and in violation of law. However, it shall be set forth in the pleading; and
did not contain any averment of facts showing 2. The original or a copy thereof shall be
that defendant’s acts were done in the manner attached to the pleading as an exhibit, which
alleged. Does the complaint state a cause of shall be deemed to be a part of the pleading.
action? (Sec. 7, Rule 8, ROC, as amended)
A: NO. Because it does not state the ultimate facts NOTE: A variance in the substance of the document
constituting the plaintiffs cause of action. The set forth in the pleading and the document annexed
allegations that the defendant acted in bad faith, thereto does not warrant the dismissal of the action.
arbitrarily, illegally, wrongfully and in violation of (Convets, Inc. v. National Development Co., G.R. No. L-
law are mere conclusions of fact or conclusions of 10232, 28 Feb. 1958) However, the contents of the
law. (Remitere v. De Yulo, G.R. No. L-19751, 28 Feb. document annexed are controlling.
1996)
Q: Gemma Ridao obtained a $4,000 loan, as
Averment of an Official Document or Act evidenced by a Promissory Note (PN), with
Handmade Credit and Loans, Inc. a corporation
It is sufficient to aver that the document was issued engaged in the business of lending of money.
in compliance with law. With respect to an act, it is Ridao’s brother-in-law, Teofilo Manipon, was
likewise sufficient to allege that the act was done the duly authorized representative of
also in compliance with law. (Riano, 2019, citing Sec. Handmade Credit. Ridao obtained two
9, Rule 8, ROC, as amended) additional loans, evidenced by another PN. For
failing to pay, Handmade sent Ridao a Demand
Letter. Having received no response, Handmade
filed a Complaint for collection of sum of money
with damages against Ridao. Handmade
attached several annexes. Handmade

Civil Procedure
emphasized that Ridao had not paid a single her loan obligation. Since Ridao had shown evidence
centavo. of payment, upon presentation of Avelino's
payment record, then the burden to go forward with
In her Answer with Special and Affirmative the evidence and to prove non-payment shifted to
Defenses and Counterclaim, Ridao admitted that Handmade, which the latter failed to overcome.
she obtained a loan from Teofilo, but that she (Gemma Ridao v. Handmade Credit and Loans, Inc.,
had fully paid it through her husband Avelino, G.R. No. 236920, 03 Feb. 2021)
who tendered payments to Teofilo. Ridao
attached Avelino’s payment record consisting of SPECIFIC DENIALS
a copy of a page of a ledger.
Forms of Denials amounting to Negative
A Complaint was filed against Ridao. Ridao, then Defenses
contends that Handmade had impliedly
admitted the genuineness and due execution of 1. Absolute denial -The defendant specifies each
the ledger where payment had been material allegation of fact the truth of which he
acknowledged by Handmade when Handmade or she does not admit and, whenever
failed to file a Reply and specifically deny the practicable, sets forth the substance of the
actionable document attached by Ridao in her matters upon which he relies to support his
Answer. denial;
2. Partial denial – The defendant denies only a
a. Is Ridao correct? part of an averment; and
b. Has Ridao fully paid her obligations? 3. Denial by disavowal of knowledge – the
defendant alleges that he or she is without
A: knowledge or information sufficient to form a
a. NO. A document is actionable when an action or belief as to the truth of a material averment
defense is grounded upon such written instrument made in the complaint (Riano, 2019, citing Sec.
or document. A copy of a page of a ledger is not an 10, Rule 8, ROC, as amended; and Philippine Bank
actionable document. The ledger merely indicates and Communications v. Go, G.R. No. 175514, 14
that money was received as payment, but it is not Feb. 2011) (2004, 2005 BAR)
evidence of the transaction between the parties. The
ledger does not provide for the terms and NOTE: If such matters are plainly and necessarily
conditions of the loan transaction from which a within the defendant’s knowledge, a claim of
right or obligation may be established. “ignorance of information will not be considered a
specific denial.” (Aquintey v. Tibong, G.R. No. 166704,
b. YES. It is a settled rule in evidence that the one 20 Dec. 2006)
who alleges payment has the burden of proving it.
The burden of proving that the debt had been Effect of Failure to make Specific Denials
discharged by payment rests upon the debtor once
the debt's existence has been fully established by GR: Material averments not specifically denied are
the evidence on record. However, when the debtor deemed admitted.
introduces some evidence of payment, the burden of
going forward with the evidence - as distinct from NOTE: If the allegations are deemed admitted, there
the burden of proof- shifts to the creditor. is no more triable issue between the parties and if
Consequently, the creditor has a duty to produce the admissions appear in the answer of the
evidence to show non-payment. defendant, the plaintiff may file a motion for
judgment on the pleadings under Rule 34. (Riano,
Here, Ridao readily disclosed that she had a loan 2019)
obligation with Teofilo and presented the ledger as
proof that through Avelino, she had fully paid for

2022 GOLDEN NOTES
Remedial Law
XPN: Allegations as to the amount of unliquidated b. Statute of Limitations;

damages, when not specifically denied, are not c. Release;
deemed admitted. d. Payment;
e. Illegality;
NOTE: The mere statement in the Answer, i.e., that f. Statute of Frauds;
they "specifically deny" the pertinent allegations of g. Estoppel;
the Complaint "for being self-serving and pure h. Former Recovery;
conclusions intended to suit plaintiff’s i. Discharge of Bankruptcy;
purposes," does not constitute an effective specific j. Any other matter by way of confession or
denial as contemplated by law. Verily, a denial is not avoidance; and
specific simply because it is so qualified by the k. Grounds for the dismissal of the complaint:
defendant. Stated otherwise, a general denial does i. The court has no jurisdiction over the
not become specific by the use of the word subject matter;
"specifically." Neither does it become so by the ii. There is another action pending
simple expedient of coupling the same with a broad between the same parties for the
conclusion of law that the allegations contested are same cause; or
"self-serving" or are intended "to suit plaintiff’s iii. The action is barred by a prior
purposes." (Go Tong Electrical Supply Co., Inc. and Go judgment.
v. BPI Family Savings Bank, Inc., G.R. No. 187487, 29
June 2015) 2. Under Sec. 12, Rule 8 of the 2019 Revised
Rules on Civil Procedure
When a Specific Denial requires an Oath
a. The court has no jurisdiction over the
GR: A denial of due execution and genuineness of an person of the defending party;
actionable document attached. (Sec. 8, Rule 8, ROC, b. The venue is improperly laid;
as amended) (2000 BAR) c. The plaintiff has no legal capacity to sue;
d. That the pleading asserting the claim states
XPNs: The requirement of an oath does not apply: no cause of action; and
e. That a condition precedent for filing the
a. When the adverse party does not appear to be claim has not been complied with. (Sec.
a party to the instrument; or 5[b], Rule 6, ROC, as amended)
b. When compliance with an order for an
inspection of the original instrument is Action of the Court on the Affirmative Defenses
refused.
The court shall motu proprio resolve the above
affirmative defenses under Section 12 within thirty
NOTE: An answer raising a specific denial
(30) calendar days from the filing of the answer.
based on the above grounds is deemed to be
(Section 12 (c), Rule 8, ROC, as amended)
under oath if it contains verification.
It is not necessary for the Court to conduct a
AFFIRMATIVE DEFENSES hearing before it can resolve these grounds.
A defendant shall raise his or her affirmative Waiver of Affirmative Defenses

defenses in his or her answer, which shall be limited
to the following: Failure to raise the affirmative defenses at the
earliest opportunity shall constitute a waiver
1. Under Sec. 5(b), Rule 6, 2019 Revised Rules thereof. (Sec. 12[b], Rule 8, ROC, as amended)
on Civil Procedure
a. Fraud;

Civil Procedure
Summary Hearing for the Resolution of the XPNs: These defenses may be raised at any stage of
Affirmative Defense the proceedings even for the first time on appeal:
The court may conduct a summary hearing within 1. Lack of jurisdiction over the subject matter;
15 calendar days from the filing of the answer
regarding the following affirmative defenses: NOTE: It may, however, be barred by laches.
(Tijam v. Siboghanoy, G.R. No. L-21450, 15 Apr.
1. Fraud; 1968)
2. Statute of Limitations;
3. Release; 2. Litis pendentia (2010 BAR);
4. Payment; 3. Res judicata; and
5. Illegality; 4. Statute of limitations. (Sec. 1, Rule 9, ROC, as
6. Statute of Frauds; amended)
7. Estoppel;
8. Former Recovery; Failure to Plead a Compulsory Counterclaim and
9. Discharge of Bankruptcy; and Crossclaim
10. Any other matter by way of confession or
avoidance. (First paragraph, Sec. 12(b), Rule GR: A compulsory counterclaim or crossclaim not
8, ROC, as amended) set up in the answer is deemed barred. (Sec. 2, Rule
9, ROC, as amended)
Such affirmative defenses shall be resolved by the
court within 30 calendar days from the termination XPNs:
of the summary hearing. (Sec. 12[d], Rule 8, 2019 1. A counterclaim or a crossclaim which either
ROC, as amended) matured or was acquired by a party after
serving his pleading may, with the permission
Denial of Affirmative Defenses; Prohibitions of the court, be presented as a counterclaim or
a crossclaim by supplemental pleading before
Denial of affirmative defenses shall not be the judgment. (Sec. 9, Rule 11, ROC, as amended)
subject of:
2. Counterclaims or crossclaims omitted through
1. Motion for reconsideration; oversight, inadvertence, or excusable neglect or
2. Petition for Certiorari; when justice requires may be set up by
3. Petition for Prohibition; and amendment before judgment. Leave of court is
4. Petition for Mandamus. necessary. (Sec. 10, Rule 11, ROC, as amended)
NOTE: The order of denial of affirmative defense is NOTE: A permissive counterclaim is not barred.
an interlocutory order.
5.AMENDED AND SUPPLEMENTAL PLEADINGS
Remedy on Denial of Affirmative Defenses (RULE 10)
Assign the order of denial as among the matters to How Pleadings are amended
be raised on appeal after a judgment on the merits.
Pleadings may be amended by:
4. EFFECT OF FAILURE TO PLEAD OF FAILURE
TO PLEAD (RULE 9) 1. Adding or striking out an allegation or the
name of any party; or
GR: Defenses not pleaded in a motion to dismiss or 2. Correcting a mistake in the name of a party or
in the answer are deemed waived. (Sec. 1, Rule 9) a mistaken or inadequate allegation or

2022 GOLDEN NOTES
Remedial Law
description in any other respect. (Sec. 1, Rule When Refusal of Leave of Court to amend is
10, ROC, as amended) allowed
Amendments as a matter of Right (2005, 2008 1. The motion is made to delay the action;
BAR) 2. The motion is made to confer jurisdiction on
the court;
1. Once, at any time before a responsive 3. When it appears to the court that the pleading
pleading is served; or stated no cause of action from the beginning
2. In the case of a reply, at any time within ten which could be amended (Sec. 3, Rule 10, ROC,
(10) calendar days after it is served. (Sec. 2, as amended); or
Rule 10, ROC, as amended) 4. The cause of action or defense is substantially
altered. (Guiang v. Nadayag, G.R. No. 82630, 30
NOTE: It is settled that a motion to dismiss is not the Sept. 1992)
responsive pleading contemplated by the Rule. A
plaintiff may file an amended complaint even after NOTE: An action of the court whether to grant or
the original complaint was ordered dismissed, refuse leave must be made upon motion, and after
provided that the order of dismissal is not yet final. notice to the adverse party, and an opportunity to
(Riano, 2019, citing Bautista v. Maya-Maya Cottages, be heard. (Sec. 3, Rule 10, ROC, as amended)
Inc., G.R. No. 148411, 29 Nov. 2005)
Formal Amendments
If the court refuses to admit an amended pleading
when its exercise is a matter of right, such error is A defect in the designation of the parties and other
correctible by mandamus. (Alpine Lending Investors clearly clerical or typographical errors may be
vs. Corpuz, G.R. No. 157107, 24 Nov. 2006) summarily corrected by the court at any stage of the
action, at its initiative or on motion, provided no
AMENDMENTS BY LEAVE OF COURT prejudice is caused thereby to the adverse party.
Substantial Amendments
AMENDMENTS TO CONFORM TO OR
Substantial amendments may be made only upon AUTHORIZE PRESENTATION OF EVIDENCE
leave of court upon a motion filed in court, after
notice to the adverse party, and after being given an No Amendment necessary to conform to or
opportunity to be heard. (Sec. 3, Rule 10, ROC, as authorize presentation of Evidence
amended)
When issues not raised by the pleadings are tried
NOTE: Leave of court for substantial amendment is with the express or implied consent of the parties,
NOT required when it is made as a matter of right, they shall be treated in all respects as if they had
i.e., when it is made before a responsive pleading been raised in the pleadings. No amendment of such
had already been served. At this stage, a party has pleadings deemed amended is necessary to cause
the absolute right to amend his or her pleading them to conform to the evidence. (Sec. 5, Rule 10,
substantially as when he or she introduces a new ROC, as amended)
cause of action or a change in theory.
NOTE: It does not apply when the case was decided
Amendments by Leave of Court (2003 BAR) on a stipulation of facts in which case the pleadings
are not deemed amended to conform to the
1. If the amendment is substantial (Sec. 3, Rule 10, evidence. (MWSS v. CA, et al., G.R. No. 54526, 25 Aug.
ROC, as amended); or 1986)
2. A responsive pleading had already been served
(Siasoco v. CA, G.R. No. 132753, 15 Feb. 1999)

Civil Procedure
The trial court should not be precluded from In CA-GR SP No. 129738 dated August 28, 2014,
awarding an amount higher than that claimed in the the CA decision directed the RTC to Admit the
pleadings notwithstanding the absence of the Amended Complaint and to try the case with
required amendment, provided that the evidence of dispatch. Was the CA correct in granting the
such higher amount has been presented properly, Motion for Summary Judgement in 2016?
with full opportunity on the part of the opposing
parties to support their respective contentions and A: NO. The Rules on Civil Procedure provide that the
to refute each other’s evidence. (Northern Cement amended complaint supersedes the complaint.
Corp. v. IAC, et al., G.R. No. 68636, 29 Feb. 1988) Thus, the grant of the Motion for Summary
Judgment, and even the Motion for Summary
Effect of Amended Pleading Judgment itself, have no leg to stand on, as they
were both based on the superseded complaint. (De
An amended pleading supersedes the pleading it Camcam and Bintanga v. Vazquez, G.R. No. 227258,
amends. However, admissions in the superseded 03 Feb. 2021)
pleading can still be offered in evidence against the
pleader. Claims or defenses alleged therein but not NOTE: The settled rule is that the filing of an
incorporated or reiterated in the amended pleading amended pleading does not retroact to the date of
are deemed waived. (Sec. 8, Rule 10, ROC, as the filing of the original pleading; hence, the statute
amended) of limitation runs until the submission of the
amendment. It is true that as an exception, this
Effect of Amended Pleading on the Admissions Court has held that an amendment which merely
in the Original Pleading supplements and amplifies facts originally alleged
in the complaint relates back to the date of the
They cease to be judicial admissions. Thus, they are commencement of the action and is not barred by
to be considered as extrajudicial admissions and the statute of limitations which expired after the
may be proved by the party relying thereon by service of the original complaint. Thus, when the
formal offer in evidence of such original pleading. amended complaint does not introduce new issues,
(Ching v. CA, G.R. No. 110844, 27 Apr. 2000) cause of action, or demands, the suit is deemed to
have commenced on the date the original complaint
Q: In 2013, the RTC granted the Motion for was filed. (Alpha Plus International Enterprises Corp.
Summary Judgment and dismissed Camcam’s v. PCIC, G.R. No. 202761, 10 Feb. 2021)
complaint. The RTC ruled that there is no longer
an issue demanding a full- blown trial as Supplemental Pleadings (2008 BAR)
Camcam’s admitted facts and documentary
evidence on record already confirmed A supplemental pleading is one which sets forth
Vazquez’s ownership. Aggrieved, petitioners transactions, occurrences, or events which have
appealed to the CA where they argued that the happened since the date of the pleading sought to be
disposition of the case was premature as they supplemented. (Sec. 6, Rule 10, ROC, as amended)
were still seeking an amendment of their
complaint and that there were genuine issues in NOTE: The cause of action stated in the
the case necessitating a full-blown trial. supplemental complaint must be the same as that
stated in the original complaint. Otherwise, the
The CA, in CA-GR CV No. 103230 dated court should not admit the supplemental complaint.
September 16, 2016, held that the RTC did not (Asset Privatization Trust v. CA, G.R. No. 121171, 29
err in granting the Motion for Summary Dec. 1998)
Judgment despite the pendency before the
different division of a related case wherein Supplemental complaints should only supply
petitioners put in issue the propriety of the deficiencies in aid of an original complaint. It should
amendment of the complaint. only contain causes of action relevant and material

2022 GOLDEN NOTES
Remedial Law
to the plaintiff’s right and which helps the plaintiff’s There is no such
right or defense. It cannot be used to try a new Amendment must be requirement in
matter or a new cause of action since it must be appropriately supplemental
based on matters arising subsequent to the original marked. pleadings. (Herrera,
complaint (Leobrera v. CA, G.R. No. 80001, 27 Feb. 2007)
1989).
Purposes of Supplemental Pleading
Amended Pleading vs. Supplemental Pleading
1. It is to bring into the records new facts, which will
AMENDED SUPPLEMENTAL enlarge or change the kind of relief to which the
PLEADING PLEADING plaintiff is entitled; and
Refers to the facts Refers to facts 2. It is meant to supply deficiencies in aid of the
existing at the time of occurring after the original pleading, not to entirely substitute the
filing of original filing of the original latter. (Herrera, 2007)
pleading. pleading.
Supersedes the Merely supplements NOTE: Filing an answer to a supplemental
original. the original pleading. complaint is not mandatory because of the use of the
May be amended word “may” in Sec. 7, Rule 11. This is bolstered by
without leave of the express provision of the Rules that the answer
Always with leave of
court before a to the original pleading shall serve as the answer to
court.
responsive pleading the supplemental pleading if no new or
is filed. supplemental answer is filed. The Court cannot
It sets forth declare the respondents in default simply because
transactions, the latter opted not to file their answer to the
occurrences or supplemental petition. (Chan v. Chan, G.R. No.
It has retroactive events which have 150746, 15 Oct. 2008)
application. happened since the
date of the pleading
sought to be
supplemented.
6. WHEN TO FILE RESPONSIVE PLEADINGS (RULE 11)
Period to file Responsive Pleadings
PLEADING PERIOD TO FILE

The defendant shall file his answer to the complaint within thirty (30) calendar days
Answer to the
after service of summons, unless a different period is fixed by the court. (Sec. 1, Rule
Complaint
i. Where the defendant is a foreign private juridical entity and service of
summons is made on the government official designated by law to receive the
same, the answer shall be filed within sixty (60) calendar days after receipt of
Answer of a
summons by such entity.
Defendant Foreign
ii. Where its filing is not a matter of right, the defendant shall answer the
Private Juridical
amended complaint within fifteen (15) calendar days from notice of the order
Entity
admitting the same. An answer earlier filed may serve as the answer to the
amended complaint if no new answer is filed. (Sec. 2, Rule 11, ROC, as amended)

Civil Procedure
NOTE: This Rule shall apply to the answer to an amended counterclaim, amended
crossclaim, amended third (fourth, etc.)-party complaint, and amended complaint-
in-intervention.
i. When the plaintiff files an amended complaint as a matter of right, the
defendant shall answer the same within thirty (30) calendar days after being
served with a copy thereof.
Answer to Amended ii. Where its filing is not a matter of right, the defendant shall answer the
Complaint amended complaint within fifteen (15) calendar 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. (Sec. 3, Rule 11, ROC, as
amended)
Answer to
A counterclaim or crossclaim must be answered within twenty (20) calendar days
Counterclaim or
from service. (Sec. 4, Rule 11, ROC, as amended)
Crossclaim
Answer to Third
The time to answer a third (fourth, etc.)—party complaint shall be governed by the
(Fourth, etc.)-Party
same rule as the answer to the complaint. (Sec. 5, Rule 11, ROC, as amended)
Complaint
A reply, if allowed under Section 10, Rule 6 hereof, may be filed within fifteen (15)
Reply calendar days from service of the pleading responded to. (Sec. 6, Rule 11, ROC, as
amended)
A supplemental complaint may be answered within twenty (20) calendar days from
Answer to notice of the order admitting the same, unless a different period is fixed by the court.
Supplemental The answer to the complaint shall serve as the answer to the supplemental
Complaint complaint if no new or supplemental answer is filed. (Sec. 7, Rule 11, ROC, as
amended)
Existing
A compulsory counterclaim or a crossclaim that a defending party has at the time
Counterclaim or
he files his answer shall be contained therein. (Sec. 8, Rule 11, ROC, as amended)
Crossclaim
A counterclaim or a crossclaim which either matured or was acquired by a party
Counterclaim or
after serving his pleading may, with the permission of the court, be presented as a
Crossclaim arising
counterclaim or a cross-claim by supplemental pleading before judgment. (Sec. 9,
after Answer
When a pleader fails to set up a counterclaim or a crossclaim through oversight,
Omitted
inadvertence, or excusable neglect, or when justice requires, he may, by leave of
Counterclaim or
court, set up the counterclaim or cross-claim by amendment before judgment. (Sec.
Crossclaim
A defendant may, for meritorious reasons, be granted an additional period of not
more than thirty (30) calendar days to file an answer. A defendant is only allowed
to file one (1) motion for extension of time to file an answer. (Sec. 11, Rule 11, ROC,
Extension of Time to as amended)
file an Answer
NOTE: A motion for extension to file any pleading, other than an answer, is
prohibited and considered a mere scrap of paper. The court, however, may allow
any other pleading to be filed after the time fixed by these Rules.

2022 GOLDEN NOTES
Remedial Law
7. BILL OF PARTICULARS (RULE 12) within 10 calendar days from service thereof. (Sec.
Three Options available to the Defendant upon
receipt of the Complaint (B-A-D) Instances when a Bill of Particulars is allowed:
1. Filing of a motion for bill of particulars; 1. When the allegations are indefinite and
2. Filing of an answer to the complaint; or uncertain that the nature cannot be understood
3. Filing of a motion to dismiss (Riano, 2019) therefrom;
2. When the allegations are so vague that they do
Bill of Particulars not appear therefrom in what capacity a party
sues or is issued;
It is a more definite statement consisting of 3. When the allegations are uncertain as to time,
amplification or more particularized outline of a place, quantity, title, person, or any other
pleading and being in the nature of a more specific matter required to be pleaded with certainty;
allegation of the facts recited in the pleading. (Sec. 3, 4. When the allegations are faulty in duplication,
Rule 12; Herrera, 2007) setting out two grounds for a single claim;
5. When denials are so indefinite and uncertain
PURPOSE AND WHEN APPLIED FOR that it cannot be understood what is denied and
what is admitted;
Purpose of a Bill of Particulars 6. Particulars of details of computation of bank
account were allowed; technicalities are
Its purpose is to seek an order from the court frowned upon; or
directing the pleader to submit a bill of particulars 7. Conclusions of law – deceit, machination, false
which avers matters with “sufficient definiteness or pretenses, misrepresentations and threats are
particularity” to enable the movant to properly conclusions of law and mere allegations thereof
prepare his responsive pleading. In less technical without a statement of the facts to which such
terms, a function of a bill of particulars is to clarify terms have references are not sufficient.
the allegations in the pleading so an adverse party (Herrera, 2007)
may be informed with certainty of the exact
character of the cause of action or defense. (Riano, When Bill of Particulars is Improper (2003 BAR)
2019)
1. Specified with particularity;
NOTE: The purpose of the motion is not to enable 2. Within party’s knowledge;
the movant to prepare for trial. Where the movant 3. Irrelevant to allegations of complaint; or
is to enable him to prepare for trial, the appropriate 4. More properly ascertainable by discovery.
remedy is to avail of the discovery procedures from (Herrera, 2007)
Rules 23 to 29 and even of a pretrial under Rule 18.
(Riano, 2019) Filing of Bill of Particulars
Motion for a Bill of Particulars; when Available It may be filed either through a separate or an
(2003 BAR) amended pleading. (Sec. 3, Rule 12, ROC, as
amended)
Before responding to a pleading, a party may move
for a definite statement or for a bill of particulars of Who can avail of Motion for Bill of Particulars
any matter which is not averred with sufficient
definiteness or particularity to enable him or her Both parties can avail of the Motion for Bill of
properly to prepare his or her responsive pleading. Particulars. It is a motion that applies to any
If the pleading is a reply, the motion must be filed pleading which in the perception of the movant
contains matters which are not alleged with

Civil Procedure
sufficient definiteness or particularity. (Riano, 2. If plaintiff is disobedient, his or her complaint

2019) will be stricken off and dismissed (Sec. 3, Rule
Requirements of Bill of Particulars 3. If defendant is disobedient, his answer will be
stricken off and his counterclaim dismissed,
Aside from the requirements for a motion as set and he will be declared in default upon motion
forth in Rule 15, the motion shall point out: of the plaintiff. (Sec. 4, Rule 17; Sec. 3, Rule 9,
ROC, as amended) (2003, 2008 BAR)
1. The defects complained of;
2. The paragraphs wherein they are contained; Q: Within the period for filing a responsive
and pleading, the defendant filed a motion for a bill
3. The details desired. (Sec. 1, Rule 12, ROC, as of particulars that he set for hearing on a certain
amended) date. However, the defendant was surprised to
find on the date set for hearing that the trial
ACTION OF THE COURT (2008 BAR) court had already denied the motion on the day
of its filing, stating that the allegations of the
The court may either: complaint were sufficiently made.
1. Deny it outright; 1. Did the judge gravely abuse his discretion in

2. Grant it outright; or acting on the motion without waiting for the
3. Allow the parties the opportunity to be heard. hearing set for the motion?
(Sec. 2, Rule 12) 2. If the judge grants the motion and orders the
plaintiff to file and serve the bill of
COMPLIANCE WITH THE ORDER particulars, can the trial judge dismiss the
AND EFFECT OF NON-COMPLIANCE case if the plaintiff does not comply with the
order? (2008 BAR)
Motion granted
A:
If the motion is granted, either in whole or in part, it 1. NO. Sec. 2, Rule 12 authorizes the court to either
must be effected within 10 calendar days from deny or grant said motion outright or allow the
notice of the order, unless a different period is fixed parties an opportunity to be heard. The court is
by the court. The bill of particulars or a more not mandated to conduct a hearing.
definite statement ordered by the court may be filed
in a separate or in an amended pleading, serving a 2. YES. Sec. 4, Rule 12 authorizes the court to
copy thereof on the adverse party. (Sec. 3, Rule 12, order the striking out of the pleading affected,
ROC, as amended) hence the dismissal of the complaint. To the
same end is the provision of Sec. 3, Rule 17
Non-Compliance with the Order of a Bill of when the plaintiff fails to comply for no
Particulars justifiable cause with any order of the court or
with the Rules.
1. If the order is not obeyed or in case of
insufficient compliance therewith, the court: EFFECT ON THE PERIOD TO FILE
A RESPONSIVE PLEADING
a. May order the striking out of the pleading
or the portion thereof to which the order is After service of the bill of particulars or of a more
directed; or definite pleading, or after notice of denial of his or
b. Make such order as it may deem just (Sec. 4, her motion, the moving party may file his or her
Rule 12, ROC, as amended) responsive pleading within the period to which he
or her was entitled at the time of filing his or her

2022 GOLDEN NOTES
Remedial Law
motion, which shall not be less than 5 calendar days Copies to be Filed
in any event. (Sec. 5, Rule 12, ROC, as amended)
Unless otherwise directed by the court, the number
8. EFFICIENT USE OF PAPER RULE of court- bound papers that a party is required or
(A.M. No. 11-9-4-SC, November 13. 2012) desires to file shall be as follows:
Scope a. In the Supreme Court, one original (properly

marked) and four copies, unless the case is
This rule shall apply to all courts and quasi-judicial referred to the Court En Banc, in which event,
bodies under the administrative supervision of the the parties shall file ten additional copies. For
Supreme Court. (Sec. 2, A.M. No. 11-9-4-SC, 13 Nov. the En Banc, the parties need to submit only
2012) two sets of annexes, one attached to the
original and an extra copy. For the Division, the
Format and Style parties need to submit also two sets of
annexes, one attached to the original and an
All pleadings, motions and similar papers intended extra copy.
for the court and quasi-judicial body’s consideration
and action (court-bound papers) shall written in All members of the Court shall share the extra
single space with one-and-a –half space between copies of annexes in the interest of economy of
paragraphs, using an easily readable font style of the paper.
party’s choice, of 14-size font, and on a 13 –inch by
8.5- inch white bond paper. (Sec. 3[a], A.M. No. 11-9- b. In the Court of Appeals and the Sandiganbayan,
4-SC, 13 Nov. 2012) one original (properly marked) and two copies
with their annexes;
All decisions, resolutions and orders issued by
courts and quasi-judicial bodies under the c. In the Court of Tax Appeals, one original
administrative supervision of the Supreme Court (properly marked) and two copies with
shall comply with these requirements. Similarly annexes. On appeal to the En Banc, one Original
covered are the reports submitted to the courts and (properly marked) and eight copies with
transcripts of stenographic notes. (Sec. 3[b], A.M. No. annexes; and
11-9-4-SC, 13 Nov. 2012)
d. In other courts, one original (properly marked)
Margins and Prints with the stated annexes attached to it.
The parties shall maintain the following margins on NOTE: Parties to cases before the Supreme Court
all court-bound papers: a left-hand margin of 1.5 are further required, on voluntary basis for the first
inches from the edge; an upper margin of 1.2 inches six months following the effectivity of this Rule and
from the edge; a right-hand margin of 1.0 inch from compulsorily afterwards unless the period is
the edge; and a lower margin of 1.0 inch from the extended, to submit, simultaneously with their
edge. court-bound papers, soft copies of the same and
their annexes (the latter in PDF format) either by
Every page must be consecutively numbered. (Sec. email to the Court’s e-mail address or by compact
4, A.M. No. 11-9-4-SC, 13 Nov. 2012) disc (CD). This requirement is in preparation for the
eventual establishment of an e-filing paperless
system in the judiciary.

Civil Procedure
Annexes Served on Adverse Party 1. Simultaneously with the hard copy if by

compact disc (CD); or
A party required by the rules to serve a copy of his 2. Within twenty-four (24) hours from the filing of
court-bound on the adverse party need not enclose the hard copy if by e-mail.
copies of those annexes that based on the record of
the court such party already has in his possession. NOTE: It must be understood, however, that the
paper shall be deemed to have been filed on the date
In the event a party requests a set of the annexes and time of filing of the hard copy and not the soft
actually filed with the court, the part who filed the copy.
paper shall comply with the request within five days
from receipt. (Sec. 6, A.M. No. 11-9-4-SC, 13 Nov. Format of the Soft Copies
2012)
1. The soft copies must be in PDF
RULES ON E-FILING 2. Individually saved
(A.M. No. 10-3-7-SC, November 10. 2013) 3. Individually attached to the e-mail, if applicable
4. Filename of the soft copy must be the same as
Guidelines on Submission and Processing of Soft the document title.
Copies of Supreme Court-Bound Papers
pursuant to the Efficient Use of Paper Rule Example: Petition for Review should have a file
name “Petition for Review.pdf”. Annex A should
Ways of Submitting Soft Copies have a file name “Annex A.
Soft copies of all Supreme Court-bound papers and

their annexes must be submitted:
Soft Copies submitted by E-Mail must be addressed to the Appropriate Docketing Office
Case Type Docketing Office E-Mail Address

Judicial cases Judicial Records Office (JRO) efile_jro@sc.judiciary.gov.ph
Administrative complaints against
personnel of the SC and its Office of Administrative Services,
efile_oas_sc@sc.judiciary.gov.ph
decentralized units (e.g., OCA, SC (OAS-SC)
PHILJA, JBC, MCLEO)
Administrative complaints and
matters involving the Court of
Documentation Division, Legal
Appeals, Sandiganbayan, Court of efile_oca@sc.judiciary.gov.ph
Office, OCA
Tax Appeals and lower courts, its
justices, judges and personnel
Administrative matters involving Office of the Clerk of Court En
efile_occeb@sc.judiciary.gov.ph
the SC and its decentralized units Banc
Complaints against lawyers and
Office of the Bar Confidant (OBC) efile_bar@sc.judiciary.gov.ph
other bar matters
NOTE: The above docketing offices have the primary responsibility of ensuring that all Supreme Court-bound
papers have the corresponding soft copies. They shall also be responsible for the safekeeping and archiving of
the CDs.

2022 GOLDEN NOTES
Remedial Law
Format of the E-mail Declaration to be filed
1. Address Bar The filer shall also attach to the CD or the e-mail a
To: [e-mail address of the appropriate verified declaration that the pleading and annexes
docketing office] submitted electronically are complete and true
From: [filer’s e-mail address] copies of the printed document and annexes filed
with the Supreme Court.
2. Subject Bar
Subject: G.R. No. 123456 (John Doe vs. Juan dela Duties of Personnel
Cruz)
1. Only designated personnel of the concerned
3. Body of the E-mail docketing office shall have authority to open the
Case Number: G.R. No. 123456 CDE or access the e-mail. This is to ensure that
Case Title: John Doe vs. Juan dela Cruz the security and confidentiality of
Name of Filing Party: John Doe electronically-submitted documents, which
Contact Numbers: (02) 888-9900 (landline), may include internal memoranda, are not
0900-1112233 (cp) compromised.
Other e-mail address/es, if any: [filer’s other e-
mail address/es] 2. Aforesaid designated personnel shall upload a
Title of Attached Documents: copy of the electronic document to the primary
1. Petition for Review back-up, and then, transmit the electronic
2. Annex A- [name of document] document to the division (En Banc, 1st, 2nd, 3rd)
3. Annex B- [name of document] to which the case or matter is assigned.
4. Attachments 3. The said division shall create folders for each

Attachments: [Petition for Review.pdf], [Annex case (case folder) and subfolders for each
A.pdf], [Annex B.pdf] pleading, motion or similar paper transmitted
to it by the docketing office (document
In saving or attaching the files in CD or E-mail subfolder), provided that annexes shall be
contained in the same subfolder as the pleading,
1. A CD or an e-mail shall contain only electronic motion or similar paper to which they are
documents pertaining to one case. annexed.
2. In the same manner, all soft copies of Supreme 4. The case folder must be name according to
Court-bound papers and their annexes docket number, while the document subfolder
pertaining to the same case shall be saved must be named according to the title of the
in one CD or attached to one e-mail. document and the date of filing.
3. In case the total file size of the electronic For uniformity, the case folder shall use the
documents exceeds the maximum size of the CD appropriate prefix (G.R., UDK, A.M., IPI, OCA IPI,
or the maximum size allowed for uploading by A.C., B.M.)[1], followed by a space, and then, by
the e-mail service being used by the filer, the the exact number given by the docketing office,
electronic documents may be saved in different without using “No.”[Sample: G.P. 123456]
CDs or e-mailed in batches, but must be clearly
marked and/or follow the format prescribed The document subfolder shall clearly indicate
above. the title of the document, the name of the party-
filler[2] and the filing date in YYYY-MM-DD
format. [Sample: Petition for Certiorari Imbong,
et al. 2013-01-31]

Civil Procedure
5. After creating the appropriate folder and/or Papers required to be filed

subfolder, the said division shall upload the
same to the e-filing network. At this point, only 1. Pleadings; and
the said division may add, delete or move files 2. Other court submissions. (Sec. 3, Rule 13, ROC,
or folders in the e-filing network. as amended)
6. In case of consolidation of cases, the division Papers required to be Served to the Adverse
concerned shall create a new folder containing Party (PM-NOJO)
all the consolidated cases, and this new folder
shall be named according to the docket number 1. Pleadings;
of the controlling case, followed by, et al., [G.R. 2. Motions;
204819, et al] 3. Notices;
4. Orders;
In case of deconsolidation of cases, the division 5. Judgments; and
concerned shall deconsolidate the case folders 6. Other court submissions (Sec. 5, Rule 13, ROC,
accordingly. as amended)
7. Authorized users from the following offices may 1. RULES ON PAYMENT OF DOCKET FEES;
view and download such electronic documents EFECT OF NON-PAYMENT
in the e-filing network which concern their
office or division: Offices of the Chief Justice and It is not simply the filing of the complaint or
Associate Justices, Offices of the Clerk of Court, appropriate initiatory pleading but the payment of
OCA, JRO OBC, and OAS-SC. the prescribed docket fee that vests a trial court
with jurisdiction over the subject matter or nature
8. The MISO shall set up a similar system for cases of the action. (Rizal et al., v. Nared, G.R. No. 151898,
and matters of the Presidential Electoral 14 Mar. 2012)
Tribunal.”
The payment of the docket and other legal fees
within the prescribed period is both mandatory
F. FILING AND SERVICE OF PLEADINGS, and jurisdictional. (Gonzales v. Pe, G.R. No. 167398,
JUDGMENTS, FINAL ORDERS AND RESOLUTIONS 9 Aug. 2011)
Rules regarding Payment of Docket Fees
Papers required to be filed with the Court and

1. In Manchester Development Corporation v.
served upon the Parties affected (Ju-Re-O-Ple-
CA, a court acquires jurisdiction only upon
Writ-N-A-D-O-S)
payment of the prescribed docket fee. (G.R. No.
75919, 07 May 1987)
1. Judgment;
2. Resolution;
2. A defect in the original pleading resulting in the
3. Order;
underpayment of the docket fee cannot be
4. Pleading subsequent to the complaint;
cured by amendment, such as the reduction of
5. Written motion;
the claim. This is because, for all legal purposes,
6. Notice;
since there is no original complaint over which
7. Appearance;
the court has acquired jurisdiction. (Manchester
8. Demand;
Development Corporation v. CA, G.R. No. 75919,
9. Offer of judgment; or
07 May 1987)
10. Similar papers (Sec. 4, Rule 13, ROC, as
amended)

2022 GOLDEN NOTES
Remedial Law
3. In Sun Insurance Office, Ltd v. Asuncion, while 7. If the plaintiff fails to comply with the
the payment of prescribed docket fee is a jurisdictional requirement of payment of the
jurisdictional requirement, even its non- docket fees, the defendant should timely raise
payment at the time of filing does not the issue of jurisdiction otherwise the latter
automatically cause the dismissal of the case, as may be estopped. (National Steel Corporation v.
long as the fee is paid within the applicable CA, G.R. No. 123215, 02 Feb. 1999)
prescriptive or reglementary period, more so
when the party involved demonstrates a NOTE: The Manchester Doctrine, on one hand,
willingness to abide by the rules prescribing applies when there is a deliberate, willful, and
such payment. Thus, when insufficient filing intentional refusal, avoidance, or evasion to pay the
fees were initially paid by the plaintiffs and filing fee. The Sun Insurance, on the other hand,
there was no intention to defraud the applies if there is otherwise and that the
government, the Manchester rule does not insufficiency of payment was brought about without
apply. (Heirs of Bertuldo Hinog v. Melico, G.R. bad faith.
No. 140954, 12 Apr. 2005, citing Sun Insurance
Office, Ltd. v. Asuncion, G.R. No. 79937-38, 13 Feb. 2. Rule 13
1989)
FILING vs. SERVICE OF PLEADINGS
4. The same rule applies to permissive
counterclaims, third party claims and similar Filing
pleadings, which shall not be considered filed
until and unless the filing fee prescribed It is the act of submitting the pleading or other
therefor is paid. The court may also allow paper to the court. (Sec. 2, Rule 13, ROC, as amended)
payment of said fee within a reasonable time
but also in no case beyond its applicable Service
prescriptive or reglementary period.
It is the act of providing a party with a copy of the
5. Where the trial court acquires jurisdiction over pleading or any other court submission. If a party
a claim by the filing of the appropriate pleading has appeared by counsel, service upon such party
and payment of the prescribed filing fee but, shall be made upon his or her counsel or one of
subsequently, the judgment awards a claim not them, unless service upon the party and the party’s
specified in the pleading, or if specified the counsel is ordered by the court. (Sec. 2, Rule 13, ROC,
same has been left for determination by the as amended)
court, the additional filing fee therefor shall
constitute a lien on the judgment. It shall be the Periods of Filing of Pleadings
responsibility of the Clerk of Court or his duly
authorized deputy to enforce said lien and PERIODS FOR FILING A RESPONSIVE
assess and collect the additional fee. (Sun PLEADING
Insurance Office, Ltd. v. Asuncion, G.R. No. 79937- Within thirty (30)
38, 13 Feb. 1989) calendar days after service
of summons, unless a
6. Cooperatives can no longer invoke Republic Act different period is fixed by
No. 6938, the Philippine Cooperative Act of Answer to an the court. (Sec. 1, Rule 11,
2008 (amended by Republic Act No. 9520), as Original ROC, as amended)
basis for exemption from the payment of legal Complaint
fees by virtue of the court’s fiscal independence. NOTE: When the service of
(A.M. No. 12-2-03-0, 13 Mar. 2012) summons is made by
publication, the period to
file an answer is within sixty

Civil Procedure
(60) calendar days after NOTE: A defendant may, for meritorious reasons, be
notice. (Sec. 16, Rule 14, ROC, granted an additional period of not more than 30
as amended) calendar days to file an answer. A defendant is only
Within sixty (60) calendar allowed to file 1 motion for extension of time to file
days after receipt of an answer.
summons by the home
office of the foreign private A motion for extension to file any pleading, other
entity. (Sec. 2, Rule 11, ROC, than an answer, is prohibited and considered a mere
Defendant is a
as amended) scrap of paper. The court, however, may allow any
Foreign Private
other pleading to be filed after the time fixed by the
Juridical Entity
NOTE: Summons is to be Rules. (Sec. 11, Rule 11, ROC, as amended)
served with the SEC which
will then send a copy by MANNER OF FILING
registered mail within 10
days to the home office of The filing of pleadings and other court submissions
the foreign private shall be made by:
corporation.
Answer to Within thirty (30) 1. Submitting personally the original thereof,
Amended calendar days from service plainly indicated as such, to the court;
Complaint of amended complaint. (Sec.
(Matter of 3, Rule 11, ROC, as amended) NOTE: The clerk of court shall endorse on the
Right) pleading the date and hour of filing.
Within fifteen (15) The date of the filing of the pleading is the date
Answer to of receipt of the court. (Miranda v. Miranda, G.R.
calendar days counted
Amended No. 179638, 08 July 2013)
from notice of the court
Complaint (Not
order admitting the same.
a Matter of 2. Sending them by registered mail;
Right)
amended)
Within fifteen (15) 3. Sending them by accredited courier; or
calendar days counted
Reply (if NOTE: In both the second and third cases, the
from the service of the
allowed) date of mailing of motions, pleadings, and other
pleading responded to. (Sec.
6, Rule 11, ROC, as amended) court submissions, and payments or deposits,
Answer to Within twenty (20) as shown by the post office stamp on the
Counterclaim calendar days from envelope or the registry receipt, shall be
or Crossclaim service. (Sec. 4, Rule 11, ROC, considered as the date of their filing, payment
(Compulsory or as amended) or deposit in court. The envelope shall be
Permissive) attached to the record of the case.
Answer to Third Like an original defendant –
(Fourth, etc.)- 15, 30, 60 days, as the case NOTE: If the courier is not accredited by the
Party may be. (Sec. 5, Rule 11, ROC, court (private letter-forwarding agency), the
Complaint as amended) date of filing of the pleading in court is the
Within twenty (20) actual date of receipt of the court of the
calendar days from notice pleading, not the date of actual receipt by the
Answer to courier. (Miranda v. Miranda, ibid.)
of order admitting the same
Supplemental
unless a different period is
Complaint 4. Transmitting them by electronic mail or other
fixed by the court. (Sec. 7,
Rule 11, ROC, as amended) electronic means as may be authorized by the

2022 GOLDEN NOTES
Remedial Law
Court in places where the court is electronically SERVICE BY MAIL

equipped.
1. Registered Mail - By depositing the copy in the
NOTE: The date of electronic transmission shall post office in a sealed envelope, plainly
be considered as the date of filing. (Sec. 3, Rule addressed to the party or his or her counsel at
13, ROC, as amended) his or her office, if known, otherwise at his or
her residence, if known, with postage fully
MODES OF SERVICE (P-A-R-E-F-O) prepaid, and with instructions to the
postmaster to return the mail to the sender
1. Personal service after 10 calendar days if undelivered; or
2. Accredited courier
3. Registered mail or 2. Ordinary Mail - if no registry service is
4. Electronic Mail available in the locality of either the sender or
5. Facsimile Transmission; and the addressee. (Sec. 7, Rule 13, ROC, as amended)
6. Other electronic means (Sec 5, Rule 13, ROC, as
amended) NOTE: Service and filing by mail may be done only
when personal service and filing is not practicable.
NOTE: For purposes of electronic mail, facsimile
transmission or other electronic means, it has to be SUBSTITUTED SERVICE
with prior court approval and agreed upon by the
parties. If service of pleadings, motions, notices, resolutions,
orders and other papers cannot be made through
Ordinary mail and substituted service are also personal service or by mail, the office and place of
included as a mode of serving a pleading. (Sec. 7 & 8, residence of the party or his or her counsel being
Rule 13, ROC, as amended) unknown, service may be made by delivering the
copy to the clerk of court, with proof of failure of
PERSONAL SERVICE both personal service and service by mail. (Sec. 8,
Rule 13, ROC, as amended) (2002, 2004, 2009 BAR)
Personal service is done by:
SERVICE BY ELECTRONIC MEANS AND
1. Delivering personally a copy to the party or to FACSIMILE
the party’s counsel, or to their authorized
representative named in the appropriate Service by electronic means and facsimile shall be
pleading or motion; made if the party concerned consents to such modes
2. Leaving it in the counsel’s office with his or her of service.
clerk or with a person having charge thereof; or
3. If no person is found in his or her office or his or 1. By Electronic Means – made by sending an e-
her office is not known, or he or she has no mail to the party’s or counsel’s electronic mail
office, by leaving the copy between the hours of address, or through other electronic means of
eight in the morning and six in the evening, at transmission as the parties may agree on, or
the party’s or counsel’s residence, if known, upon direction of the court.
with a person of sufficient age and discretion
residing therein. (Sec. 6, Rule 13, ROC, as 2. By Facsimile – made by sending a facsimile
amended) copy to the party’s or counsel’s given facsimile
number. (Sec. 9, Rule 13, ROC, as amended)

Civil Procedure
PRESUMPTIVE SERVICE OF COURT SETTING electronically served shall be retained and attached
to the record of the case. (Sec. 18, Rule 13, ROC, as
Addressee is from the same Judicial Region of amended)
the Court
CONVENTIONAL SERVICE OR FILING OF
There shall be presumptive notice to a party of a ORDERS, PLEADINGS AND OTHER DOCUMENTS
court setting if such notice appears on the records
to have been mailed at least twenty (20) calendar There are pleadings and other documents which
days prior to the scheduled date of hearing. (Sec. 10, must be filed or served personally or by registered
Rule 13, ROC, as amended) mail, and NOT electronically:
Addressee is from Outside the Judicial Region 1. Initiatory pleadings and initial responsive
pleadings, such as an answer;
There shall be presumptive notice to a party of a 2. Subpoena, protection orders, and writs;
court setting if such notice appears on the records 3. Appendices and exhibits to motions, or other
to have been mailed at least thirty (30) calendar documents that are not readily amenable to
days. (Ibid.) electronic scanning may, at the option of the
party filing such, be filed and served
SERVICE OF JUDGMENTS, FINAL ORDERS OR conventionally; and
RESOLUTIONS; SERVICE OF COURT-ISSUED 4. Sealed and confidential documents or records.
ORDERS AND OTHER DOCUMENTS (Sec. 14, Rule 13, ROC, as amended)
Judgments, final orders and resolutions are served: NOTE: However, they may be filed or served
through other means, upon express permission
1. Personally; or from the court.
2. Registered Mail
COMPLETENESS OF SERVICE
NOTE: Upon ex parte motion of any party in the
case, Judgments, Final Orders or Resolutions may 1. Personal service – upon actual delivery;
also be served through accredited courier at the
expense of such party. 2. Service by ordinary mail – upon expiration of
ten (10) calendar days after mailing, unless the
When to serve such Judgments, Final Orders or court otherwise provides;
Resolution by Publication
3. Service by registered mail – upon actual
When a party summoned by publication failed to receipt by the addressee, or after five (5)
appear in the action, judgments, final orders or calendar days from the date he or she received
resolutions against him or her. the first notice of the postmaster, whichever
date is earlier
NOTE: It shall be at the expense of the prevailing
party. (Sec. 13, Rule 13, ROC, as amended) 4. Service by accredited courier – upon actual
receipt by the addressee, or after at least two
Service of Court-Issued Orders and Other (2) attempts to deliver by the courier service, or
Documents upon the expiration of five (5) calendar days
after the first attempt to deliver, whichever is
The court may electronically serve orders and other earlier;
documents to all the parties in the case which shall
have the same effect and validity as provided in the 5. Electronic Service – at the time of the electronic
Rules. A paper copy of the order or other document transmission of the document or when

2022 GOLDEN NOTES
Remedial Law
available, at the time that the electronic only when made at the updated address. Proof,
notification of service of the document is sent; however, of ineffectual service at a counsel's former
address is not necessarily proof of a party's claim of
NOTE: It is not effective if the party serving the when service was made at the updated address. The
document learns that it did not reach the burden of proving the affirmative allegation of when
addressee or person to be served. service was made is distinct from the burden of
proving the allegation of where service was or was
6. Facsimile – upon receipt by other party as not made. A party who fails to discharge his or her
indicated in the facsimile printout (Sec. 15, Rule burden of proof is not entitled to the relief prayed
13, ROC, as amended); for.
7. Substituted service – at the time of such In the case at hand, the service made on Gatmaytan’s
delivery (Sec. 8, Rule 13, ROC, as amended) counsel's former address was ineffectual. However,
that Gatmaytan failed to discharge her burden of
Q: The Dolor Spouses filed against Gatmaytan proving the specific date - allegedly June 1, 2006 - in
and Cammayo a Complaint for Reconveyance of which service upon her counsel's updated address
Property and Damages. The Quezon City RTC was actually made.
rendered a Decision ordering Gatmaytan to
convey the lot to the Dolor Spouses which In Cortes v. Valdellon, the Supreme Court noted the
prompted the former to file here Motion for following as acceptable proofs of mailing and
Reconsideration, which was however denied. service by a court to a party:
Gatmaytan then filed an Appeal with the CA
which, however, dismissed the appeal. It ruled (1) certifications from the official Post Office
that the RTC’s Decision had already attained record book and/or delivery book;
finality as Gatmaytan filed her Motion for (2) the actual page of the postal delivery book
Reconsideration beyond the requisite 15-day showing the acknowledgment of receipt;
period. Gatmaytan, however, insists that the (3) registry receipt; and
RTC’s Decision has not attained finality as the (4) return card.
April 14, 2006 service was made to her counsel's
former address (at No. 117 West Avenue, Gatmaytan could have produced any of these
Quezon City) as opposed to the address (at Unit documents or other similar proof to establish her
602, No. 42 Prince Jun Condominium, Timog claim. She did not. All she has relied on is her bare
Avenue, Quezon City) that her counsel indicated allegation that delivery was made on June 1, 2006.
in a June 8, 2004 Notice of Change of (Gatmaytan v. Dolor, G.R. No. 198120, 20 Feb. 2017)
Address filed with the RTC which noted such
change in an Order of the same date, and PROOF OF FILING AND SERVICE
directed that, from then on, service of papers,
pleadings, and processes was to be made at her Proof of Filing
counsel's updated address at Unit 602, No. 42
Prince Jun Condominium, Timog Avenue, GR: Filing is proven by its existence in the record of
Quezon City. Has the RTC’s Decision already the case.
attained finality thus, precluding the filing of
Gatmaytan's appeal with the CA? XPN: If it is not in the record, and:
A: YES. When a party's counsel serves a notice of 1. If personally filed

change in address upon a court, and the court
acknowledges this change, service of papers, Proven by the written or stamped
processes, and pleadings upon the counsel's former acknowledgement of its filing by the clerk of
address is ineffectual. Service is deemed completed

Civil Procedure
court on a copy of the pleading or court 2. Proof of service by ordinary mail

submission; or
a. Affidavit of mailer stating the facts showing
2. If filed by registered mail compliance with Sec. 7 of Rule 13; and
b. Registry receipt issued by the mailing
Proven by the registry receipt and the affidavit officer;
of the person who did the mailing with a full
statement of: 3. Registered mail
a. The date and place of deposit of the mail in the
post office in a sealed envelope addressed to the a. Affidavit; and
court; b. Registry receipt issued by the mailing office
b. With postage fully paid; and
c. With instructions to the postmaster to return NOTE: The registry return card shall be filed
the mail to the sender after ten (10) calendar immediately upon its receipt by the sender, or
days if undelivered. in lieu thereof the unclaimed letter together
with the certified or sworn copy of the notice
3. If filed by accredited Courier Service given by the postmaster to the addressee.
Proven by an affidavit of service of the person 4. Accredited courier service

who brought the pleading or other document to
the service provider, together with the courier’s Affidavit of service by the person who brought
official receipt and document tracking number; the pleading or paper to the service provider,
together with the courier's official receipt or
4. If filed by Electronic Mail document tracking number.
Proven by an affidavit of electronic filing of the 5. Electronic mail, facsimile, or other

filing party accompanied by a paper copy of the authorized electronic means of transmission
pleading or other document transmitted or a
written or stamped acknowledgement of its Affidavit of service by the person sending the e-
filing by the clerk of court; mail, facsimile, or other electronic
transmission, together with printed proof of
5. If filed by Other Authorized Electronic Means transmittal. (Sec. 17, Rule 13, 2019 Amendments
to the Rules of Civil Procedure)
Proven by an affidavit of electronic filing of the
filing party accompanied by a copy of the Notice of Lis Pendens
electronic acknowledgment of its filing by the
court. (Sec. 16, Rule 13, 2019 Amendments to the In an action affecting title or right of possession of
Rules of Civil Procedure) real property, the plaintiff and the defendant, when
affirmative relief is claimed in his or her answer,
Proof of Service may record in the office of the registry of deeds of
the province in which the property is situated a
1. Proof of personal service notice of the pendency of the action. (Sec. 19, Rule
13, 2019 Amendments to the Rules of Civil Procedure)
a. Written admission of the party served;
b. Official return of the server; or NOTE: Only from the time of filing such notice for
c. Affidavit of the party serving, containing record shall a purchaser, or encumbrancer of the
the date, place and manner of service; property affected thereby, be deemed to have
constructive notice of the pendency of the action,

2022 GOLDEN NOTES
Remedial Law
and only of its pendency against the parties

designated by their real names. (Ibid.)
Summary of the Rules on Service
MANNER WHEN COMPLETE PROOF OF SERVICE

Personal Service
1. Delivering personally a copy to the party or

to the party’s counsel, or to their
authorized representative named in the
appropriate pleading or motion; or
1. Written admission of
2. Leaving it in the counsel’s office with his or the party served;
her clerk or with a person having charge 2. Official return of the
thereof; or server; or
Upon actual delivery.
3. Affidavit of the party
3. If no person is found in his or her office or serving, containing
amended)
his or her office is not known, or he or she the date, place and
has no office, then by leaving the copy manner of service.
between the hours of eight (8) in the (Sec. 17, Rule 13, ROC,
morning and six (6) in the evening, at the as amended)
party’s or counsel’s residence, if known,
with a person of sufficient age and
discretion residing therein. (Sec. 6, Rule 13,
ROC, as amended)
(Registered) Mail
Upon actual receipt of

By depositing the copy in the post office in a sealed the addressee or five
envelope, plainly addressed to the party or his or her (5) calendar days from 1. Affidavit; and
counsel at his or her office, if known, otherwise at his the date he or she 2. Registry receipt
or her residence, if known, with postage fully prepaid, received the first notice issued by the mailing
and with instructions to the postmaster to return the to the postmaster, office (Sec. 17, Rule 13,
mail to the sender after ten (10) calendar days if whichever date is ROC, as amended)
undelivered. (Sec. 7, Rule 13, ROC, as amended) earlier (Sec. 15, Rule 13,
ROC, as amended); or

Civil Procedure
(Ordinary) Mail
1. Affidavit of mailer
stating the facts
Upon expiration of ten
showing compliance
If no registry service is available in the locality of (10) calendar days
with Sec. 7 of Rule 11;
either the sender or the addressee, service may be after mailing, unless
and
done by ordinary mail. (Sec. 7, Rule 13, ROC, as the court otherwise
2. Registry receipt
amended) provides (Sec. 15, Rule
issued by the mailing
officer (Sec. 17, Rule
Electronic Mail, Facsimile Other Electronic Means
1. Electronic Service –
at the time of the
electronic
transmission of the
document or when
available, at the time
that the electronic
. By Electronic Means - made by sending an e-mail to
notification of service
the party’s or counsel’s electronic mail address, or
of the document is Affidavit of service by the
through other electronic means of transmission as
sent; person sending the e-
the parties may agree on, or upon direction of the
mail, facsimile, or other
court.
NOTE: It is not effective electronic transmission,
. By Facsimile – made by sending a facsimile copy to
if the party serving the together with printed
the party’s or counsel’s given facsimile number.
document learns that proof of transmittal. (Sec.
it did not reach the 17, Rule 13, ROC, as
NOTE: Service by electronic means and facsimile shall
addressee or person amended)
be made if the party concerned consents to such
to be served.
modes of service.
2. Facsimile – upon
receipt by other party
as indicated in the
facsimile printout
(Sec. 15, Rule 13, ROC,
as amended);
Publication
When a party summoned by publication has failed to

appear in the action, judgments, final orders or
resolutions against him shall be served upon him also
by publication at the expense of the prevailing party.

2022 GOLDEN NOTES
Remedial Law
Substituted Service
If service of pleadings, motions, notices, resolutions,

orders and other papers cannot be made through
personal service or by mail the office and place of The service is complete
residence of the party or his or her counsel being at the time of such
unknown, service may be made by delivering the copy delivery. (Sec. 8, Rule
to the clerk of court, with proof of failure of both 13, ROC, as amended)
personal service and service by mail. (Sec. 8, Rule 13,
ROC, as amended)

Civil Procedure
court, but is a mandatory requirement. (Riano,

G. SUMMONS 2019)
XPN: When complaint is on its face dismissible

under Sec. 1, Rule 9, i.e., when it appears on the face
1. NATURE AND PURPOSE OF SUMMONS IN
of the complaint that the Court has no jurisdiction
RELATION TO ACTIONS IN PERSONAM, IN REM
over the subject matter and the action is barred by
AND QUASI IN REM
res judicata, litis pendentia and prescription.
Nature of Summons
Alias Summons
It is the writ by which the defendant is notified of
The only time that alias summons may be issued by
the action brought against him or her. (Gomez v. CA,
the court is when summons has been lost or
G.R. No. 127692, 10 Mar. 2004) An important part of
destroyed. The issuance is upon motion. (Sec. 4,
that notice is a direction to the defendant that he or
she must answer the complaint within the period
fixed by the Rules, and that unless he or she so
Summons shall remain valid until duly served.
answers, plaintiff will take judgment by default and
(Ibid.)
may be granted the relief applied for. (Riano, 2019)
Contents
Summons in relation to Actions In Personam, In
Rem and Quasi In Rem
1. Summons shall be:
1. Actions in personam –
a. Directed to the defendant; and
a. To acquire jurisdiction over the person of
b. Signed by the clerk of court under seal.
the defendant; and
b. To give notice to the defendant that an
2. Summons shall contain:
action has been commenced against him
(Umandap v. Sabio, Jr., G.R. No. 140244, 29
a. The name of the court, and the names of the
Aug. 2000)
parties to the action;
b. An authorization for the plaintiff to serve
2. Actions in rem and quasi in rem – not to
summons to the defendant, when
acquire jurisdiction over the defendant but
authorized by the court upon ex parte
mainly to satisfy the constitutional
motion;
requirement of due process (Gomez v. CA, G.R.
c. A direction that the defendant answer
No. 127692, 10 Mar. 2004)
within the time fixed by the Rules; and
d. A notice that unless the defendant so
2. SUMMONS (RULE 14)
answers, plaintiff will take judgment by
default and may be granted the relief
When Summons is issued
applied for.
GR: The court shall, within five (5) calendar days

3. The following shall be attached to the original
from receipt of the initiatory pleading and proof of
and each copy of the summons:
payment of the requisite legal fees, direct the clerk
of court to issue the corresponding summons to the
a. A copy of the complaint, and
defendants. (Sec. 1, Rule 14, ROC, as amended)
b. An order for appointment of guardian ad
litem, if any. (Sec. 2, Rule 14, ROC, as
NOTE: The issuance of summons is not
amended)
discretionary on the part of the court or the clerk of

2022 GOLDEN NOTES
Remedial Law
Duty of Counsel of Record VOLUNTARY APPEARANCE
Where the summons is improperly served and a Effect of Voluntary Appearance

lawyer makes a special appearance on behalf of the
defendant to, among others, question the validity of The defendant’s voluntary appearance shall be
service of summons, the counsel shall be deputized equivalent to service of summons. The inclusion in
by the court to serve summons on his or her client. a motion to dismiss of other grounds aside from lack
(Sec.13, Rule 14, ROC, as amended). of jurisdiction over the person of the defendant shall
be deemed a voluntary appearance. (Sec. 23, Rule 14,
Return ROC, as amended)
Within 30 calendar days from issuance of summons NOTE: Voluntary appearance cures the defect in the
by the clerk of court and receipt thereof, the sheriff service of summons. (Sy v. Fairland Knitcraft Co., Inc,
or process server, or person authorized by the G.R. No. 182915, 12 Dec. 2011)
court, shall complete its service. (Sec. 20, Rule 14,
ROC, as amended) Forms of Voluntary Appearance
Within 5 calendar days from service of summons, 1. Voluntary appearance of attorney;

the server shall file with the court and serve a copy 2. A motion, by answer, or simple manifestation
of the return to the plaintiff’s counsel, personally, by (Flores v. Surbito, G.R. No. L-12890, 08 Mar.
registered mail, or by electronic means authorized 1918);
by the Rules. (Ibid.) 3. A telegraphic motion for postponement
(Punzalan v. Papica, 29 Feb. 1960);
Return in case of Substituted Service 4. Filing a motion for dissolution of attachment;
5. Failure to question the invalid service of
Should substituted service have been effected, the summons (Navale v. CA, G.R. No. 109957, 20
return shall state the following: Feb. 1996); and
6. Filing a motion for extension of time to file an
1. The impossibility of prompt personal service answer; and
within a period of 30 calendar days from issue 7. Motion to dismiss based on other grounds
and receipt of summons; aside from lack of jurisdiction over the person
of the defendant. (Sec. 23, Rule 14, ROC, as
2. The date and time of the 3 attempts on at least amended)
2 different dates to cause personal service and
the details of the inquiries made to locate the HOW SUMMONS IS SERVED
defendant residing thereat; and
Summons is served by any of the following means:
3. The name of the person at least 18 years of age (S-E-P-S)
and of sufficient discretion residing thereat,
name of competent person in charge of the 1. Service in person on defendant;
defendant’s office or regular place of business, 2. Extraterritorial service;
or name of the officer of the homeowners’ 3. Service by Publication; or
association or condominium corporation or its 4. Substituted service.
chief security officer in charge of the
community or building where the defendant Q: Danbury Bank (DB) filed a Complaint for sum
may be found. (Ibid.) of money and/or damages with prayer for the ex
parte issuance of a writ of preliminary
attachment against Featherington, Inc. (FI) and
the spouses Daphne Chua-Co and Simon Co,

Civil Procedure
Eloise Chua, Penelope Chua, Colin Chua, Anthony partner, general manager, corporate secretary,
Co (collectively, respondents Sps. Co, et al.), treasurer, and in-house counsel is not valid.
Bridgerton, Inc. (BI).
Furthermore, both petitioner DB and the RTC posit
The RTC granted UCPB's prayer for a writ of the view that since respondents Sps. Co, et al., in
preliminary attachment. Summonses and copies their Motion to Dismiss, included a plea to suspend
of the order granting the writ were served on the the proceedings in view of the Stay Order issued by
defendants. Defendants filed a Motion to another court, they thus sought an affirmative relief
Dismiss with Manifestation alleging that the RTC which should be deemed a voluntary submission to
did not acquire jurisdiction over their persons the jurisdiction of the court. Such view is mistaken.
due to defective service of summons. Is the While it is true that respondents Sps. Co, et al. did
contention of defendants correct? pray in their Motion to Dismiss for a suspension of
the proceedings due to a Stay Order issued by a
A: YES. According to the Rules of Court, the different court, which is an affirmative relief, such
summons shall be served by handling a copy thereof was not tantamount to a voluntary appearance as
to the defendant in person. Only in instances respondents Sps. Co, et al., in an explicit and
wherein, for justifiable causes, the defendant cannot unequivocal manner, posed vehement objections to
be served within a reasonable time, may summons the jurisdiction of the RTC over their persons due to
be effected through substituted service, i.e., (a) by improper service of summons. (United Coconut
leaving copies of the summons at the defendant's Planters Bank v. Sps. Sy, G.R. No. 204753, 27 Mar.
residence with some person of suitable age and 2019, J. Caguioa)
discretion then residing therein, or (b) by leaving
the copies at defendant's office or regular place of WHO MAY SERVE SUMMONS
business with some competent person in charge
thereof. With respect to parties that are domestic The summons may be served by the:
private juridical entities, service may be made only
upon the president, managing partner, general 1. Sheriff;
manager, corporate secretary, treasurer, or in- 2. Deputy of the sheriff;
house counsel. 3. Other proper court officer; or
4. Plaintiff, provided:
For substituted service of summons to be available, a. There must be failure of service of
there must be several attempts by the sheriff, which summons by the sheriff or his deputy;
means at least three tries, preferably on at least two b. Authorized by the court;
different dates. It is crystal clear that there were no c. The summons is to be served outside the
several attempts made to effect personal service in judicial region of the court where the case
the instant case; there was only a single day's effort is pending. (Sec. 3, Rule 14, ROC, as
to personally serve summons upon the therein amended)
defendants.
Q: Respondent Lagtapon instituted a civil suit
As regards the service of summons undertaken with against petitioner Yap for a sum of money with
respect to the therein defendant corporations, i.e., the Regional Trial Court. Summons was issued
DB and FI, the CA was also not mistaken in holding and as per return of service of summons dated 4
that since the summons were served on a mere OIC November 1997 prepared by the process server
property supply custodian, the services of summons of the respondent court in the person of Ray R.
undertaken were defective. Section 11, Rule 14 of Precioso, he served on November 4, 1997 the
the Rules of Court sets out an exclusive enumeration summons on petitioner Yap who, however,
of the officers who can receive summons on behalf refused to acknowledge receipt thereof, thus,
of a corporation. Service of summons to someone compelling him to tender the same and left a
other than the corporation president, managing copy thereof for her. As no answer was filed,

2022 GOLDEN NOTES
Remedial Law
respondent Lagtapon filed a motion to declare Petitioner Yap's evidence does not constitute clear
petitioner Yap in default. The said motion was and convincing evidence to overturn the
granted by the respondent court declaring presumption of regularity attendant to the Return
[petitioner Yap] in default and allowing of Service. (Yap v. Lagtapon, G.R. No. 196347, 23 Jan.
respondent Lagtapon to present her evidence 2017, J. Caguioa)
ex-parte. The respondent court rendered the
challenged Decision in favor of respondent PERSONAL SERVICE
Lagtapon and against petitioner Yap.
Respondent Lagtapon filed a motion for Regardless of the type of action – whether it is in
execution which was favorably acted upon by personam, in rem or quasi-in rem – the preferred
the respondent court. mode of service of summons is personal service. (De
Pedro v. Romasan Development Corp., G.R. No.
Yap claimed that while she used to reside 194751, 26 Nov. 2014)
therein, she had already moved out from the
said address sometime in June 1997 and started Personal service of summons is the preferred mode
leasing out the same on July 1998. Hence, the of service of summons. Thus, as a rule, summons
Summons could not have been served on her on must be served personally upon the defendant or
November 4, 1997, as she had already vacated respondent wherever he or she may be found. The
from the said address by then. Thus, Yap filed a Rules, however, allow service of summons through
Petition for Annulment with the CA, assailing the other modes, such as by substituted service, and by
RTC Decision on the ground that Summons was publication.
not validly served on her, which thus prevented
the RTC from acquiring jurisdiction over her Under Section 14, Rule 14 of the Rules then in force,
person. Is Yap correct? summons by publication may be effected, by leave
of court, when the whereabouts of the defendant is
A: NO. A public official enjoys the presumption of unknown and cannot be ascertained with diligent
regularity in the discharge of one's official duties inquiry.
and functions. Here, in the absence of clear indicia
of partiality or malice, the service of Summons on Thus, before summons by publication may be
petitioner Yap is perforce deemed regular and valid. allowed, the following requirements must be
Correspondingly, the Return of Service of Precioso satisfied:
as process server of the RTC constitutes prima facie
evidence of the facts set out therein. 1. there must be a written motion for leave of
court to effect service of summons by
Hence, as far as the circumstances attendant to the publication, supported by affidavit of the
service of Summons is concerned, the Court has the plaintiff or some person on his behalf, setting
right to rely on the factual representation of forth the grounds for the application; and
Precioso that service had indeed been made on 2. there must be diligent efforts exerted by the
petitioner Yap in person. sheriff in ascertaining the whereabouts of the
defendant.
Yap makes much of the failure of Precioso to include
the place of service in his Return, contrary to Section Absent compliance with the rigid requirements on
18, Rule 14 of the Rules of Court. Moreover, while the service of summons, service by publication is
such detail was indeed lacking in the said Return, invalid. Hence, Br. 95-RTC never acquired
the Court cannot ignore the fact that Precioso jurisdiction over the person of petitioner
subsequently executed an Affidavit supplying the corporation.
place of service, which, to the mind of this Court,
constitutes substantial compliance with the Rules. Necessarily, the proceedings and any judgment,
including all issuances rendered in the specific

Civil Procedure
performance case are null and void. (Titan Dragon SUBSTITUTED SERVICE
Properties Corporation vs. Marlina Veloso-
Galenzoga, G.R. No. 246088, 28 Apr. 2021) When allowed
How effected It is allowed if, for justifiable causes, the defendant

cannot be served personally after at least 3 attempts
1. By handing a copy of the summons to the on 2 different dates. (Sec. 6, Rule 14, ROC, as
defendant in person, and informing the amended)
defendant that he or she is being served; or
2. If he or she refuses to receive and sign for it, by How effected
leaving the summons within the view and in the
presence of the defendant. (Sec. 5, Rule 14, 2019 1. By leaving copies of the summons at the
Amendments to the Rules of Civil Procedure; Sps. defendant's residence to a person at least 18
Manuel v. Ong, G.R. No. 205249, 14 Oct. 2014) years of age and of sufficient discretion residing
therein;
Locus of the Service is not controlling
2. By leaving copies of the summons at the
Personal service of summons has nothing to do with defendant's office or regular place of business
the location where summons is served. A with some competent person in charge thereof.
defendant’s address is inconsequential. The rule is A competent person includes, but is not limited
clear in what it requires; personally handing the to, one who customarily receives
summons to the defendant (albeit tender is correspondences for the defendant;
sufficient should the defendant refuse to receive
and sign). What is determinative of the validity of 3. By leaving copies of the summons, if refused
personal service is, therefore, the person of the entry upon making his or her authority and
defendant, not the locus of the service. (Sps. Manuel purpose known, with any of the officers of the
v. Ong, ibid.) homeowners’ association or condominium
corporation, or its chief security officer in charge
The rule does not require that the service of of the community or the building where the
summons on the defendant in person must be defendant may be found; and
effected only at the latter’s residence as stated in the
summons. On the contrary, said provision is crystal 4. By sending an electronic mail to the defendant’s
clear that, whenever practicable, summons shall be electronic mail address, if allowed by the court.
served by handing a copy thereof to the defendant; (Ibid.)
or if he refuses to receive and sign for it, by
tendering it to him. Nothing more is required. The Requisites
service of the copy of the summons and the
complaint inside the courtroom of the MeTC of When resorting to substituted service, the following
Manila, Branch 24 was the most practicable act statutory requirements must be strictly, faithfully,
under the circumstances, and the process server and fully observed:
need not wait for respondent to reach their given
address before he could serve on the latter the 1. Indicate the impossibility of service of summons
summons and the copy of the complaint. Due to the within a reasonable time;
distance of the said address, service therein would 2. Specify the efforts exerted to locate the
have been more costly and would have entailed a defendant; and
longer delay on the part of the process server in 3. State that the summons was served upon:
effecting the service of the summons. (Sansio
Philippines, Inc. v. Sps. Mogol, Jr., G.R. No. 177007, 14 a. A person of sufficient age and discretion who
July, 2009) is residing in the address, or

2022 GOLDEN NOTES
Remedial Law
b. A person in charge of the office or regular by mail. This failure attempts on two (2)
place of business, of the defendant occurs when the office different dates can the
and residence of the process server resort
4. It is likewise required that the pertinent facts party or counsel are to substituted service.
proving these circumstances be stated in the unknown. (Sec. 8, Rule (Sec. 6, Rule 14, ROC, as
proof of service or in the officer’s return. 13, ROC, as amended) amended)
Effected by leaving
NOTE: The sheriff’s return must show the copies of the
details of the efforts exerted to summons:
personally serve summons upon 1. At the defendant’s
defendants or respondents, before residence to a
substituted service or service by person of suitable
publication is availed. (De Pedro v. Romasan age and discretion
Development Corp., supra.) residing therein;
or
Failure to comply with this rule renders absolutely 2. By leaving copies
void the substituted service along with the at the defendant’s
proceedings taken thereafter for lack of jurisdiction office or regular
over the person of the defendant (Sandoval v. HRET, place of business
G.R. No. 149380, 03 July, 2000). with some
competent person
Impossibility of Prompt Service (2013, 2016, in charge thereof;
2017 BAR) Effected by delivering 3. By leaving copies
the copy to the clerk of of the summons, if
It is only when the defendant cannot be served court, with proof of refused entry
personally within a reasonable time that a failure of both upon making his
substituted service may be made. Impossibility of personal service and or her authority
prompt service should be shown by stating the service by mail. (Sec. 8, and purpose
efforts made to find the defendant personally and Rule 13, ROC, as known, with any
the fact that such efforts failed. This statement amended) of the officers of
should be made in the proof of service. (Galura v. the homeowners’
Math-Agro Corporation, G.R. No. 167230, 14 Aug. association or
2009) condominium
corporation, or
Substituted Service of Pleadings and other chief security
Papers vs. Substituted Service of Summons officer in the
building of the
SUBSTITUTED defendant; and
SUBSTITUTED
SERVICE OF 4. By sending an
SERVICE OF
PLEADINGS AND electronic mail to
SUMMONS
OTHER PAPERS the defendant’s
Purpose is to provide a Purpose is to acquire electronic mail
copy of the pleading or jurisdiction over the address, if allowed
other papers to the person of the by the court. (Sec.
defendant in order for defendant in actions in 6, Rule 14, ROC, as
him to be informed. personam. amended)
Availed of only when Only if service in
there is failure to effect person cannot be made
service personally or after at least three (3)

Civil Procedure
CONSTRUCTIVE SERVICE NOTE: There is no service of summons solely by

registered mail except as an additional requirement
SUMMONS BY PUBLICATION to service by publication.
The rule in Sec. 16, Rule 14 (Rules of Court 2020) SERVICE UPON DEFENDANT WHOSE IDENTITY
authorizes summons by publication in any action OR WHEREABOUTS IS UNKNOWN
and the rule obviously does not distinguish whether
the action is in personam, in rem, or quasi in rem. The In any action where the defendant is designated as
tenor of the rule authorizes summons by an unknown owner, or the like, or whenever his or
publication whatever the action may be as long as her whereabouts are unknown and cannot be
the identity or whereabouts of the defendant is ascertained by diligent inquiry, within 90 calendar
unknown. (Santos v. PNOC Exploration, Corporation, days from the commencement of the action, service
G.R. No. 170943, 23 Sept. 2008) may, by leave of court, be effected upon him or her
by publication in a newspaper of general circulation
Within ninety (90) calendar days from the and in such places and for such time as the court
commencement of action, service may, by leave of may order.
court, be effected upon him or her by publication in
the following situations: Any order granting such leave shall specify a
reasonable time, which shall not be less than 60
1. The identity of the defendant is unknown; calendar days after notice, within which the
2. The whereabouts of the defendants are defendant must answer. (Sec. 16, Rule 14, ROC, as
unknown and cannot be ascertained by diligent amended)
inquiry; (Sec. 16, Rule 14, ROC, as amended)
3. The defendant is a resident of the Philippines SERVICE UPON RESIDENTS TEMPORARILY
but is temporarily out of the country; or OUTSIDE THE PHILIPPINES
4. In case the defendant does not reside and
cannot be found in the Philippines, the remedy
When any action is commenced against a defendant
of the plaintiff in order to acquire jurisdiction to
who ordinarily resides within the Philippines, but
try the case is to convert the action into a
who is temporarily outside, service may, by leave of
proceeding in rem or quasi in rem by attaching
court, be also effected out of the Philippines, as
the property of the defendant. (Philippine
under the preceding Section. (Sec. 18, Rule 14, ROC,
Commercial International Bank v. Alejandro, G.R.
as amended)
No. 175587, 21 Sept. 2007)
NOTE: “Dwelling house” or “residence” refers to the

NOTE: Those enumerated from 1 to 3 applies to any
place where the defendant was living at the time
action, which necessarily includes personal action.
when the service was made, even though he was
(Riano, 2019)
temporarily out of the country. (Domagas v. Jensen,
G.R. No. 158407, 17 Jan. 2005)
Summons by publication may be made only with
leave of court.
EXTRATERRITORIAL SERVICE,
Service of summons may be effected through WHEN ALLOWED
publication in a newspaper of general circulation
together with a registered mailing of a copy of the Requisites of Extra-Territorial Service of
summons and the order of the court to the last Summons (2009 BAR)
known address of the defendant. (Riano, 2019) It
can be done as a complementary to service of 1. The defendant is a nonresident;
summons by publication, but it does not mean that 2. He or she is not found in the Philippines; and
service by registered mail alone would suffice.

2022 GOLDEN NOTES
Remedial Law
3. The action against him is either in rem or quasi Hague Service Convention
in rem.
One international convention by which service of
NOTE: There is no extraterritorial service of summons in cases of extra-territorial service may
summons in an action in personam. Hence, be effected is The Convention on the Service
extraterritorial service upon a nonresident in an Abroad of Judicial and Extrajudicial Documents
action for injunction which is in personam is not in Civil or Commercial Matters, also known as
proper. (Kawasaki Port Service Corp. v. Amores, G.R. the Hague Service Convention, which was
No. 58340, 16 July 1991; Banco Do Brasil v. CA, G.R. concluded on November 15, 1965. It:
No. 121576-78, 16 June 2000)
1. Establishes a streamlined transmission of
Instances when Extra-Territorial Service of judicial and extrajudicial documents from one
Summons is allowed: State party to another;
2. Provides transnational litigants with methods
1. The action affects the personal status of the for the service of documents abroad;
plaintiff; 3. Simplifies and expedites the service of
2. The action relates to, or the subject is the documents abroad; and
property within the Philippines on which the 4. Guarantees that service will be brought to the
defendant has or claims a lien or interest, actual notice of the recipient in sufficient time.
or contingent;
3. The action in which the relief demanded In relation thereto, the Supreme Court promulgated
consists, wholly or in part, in excluding the Administrative Order No. 251-2020 or the
defendant from any interest therein (2016 Guidelines in the Implementation of the Hague
BAR); and Service Convention on the Service Abroad of
4. When the property of the defendant has been Judicial Documents in Civil and Commercial
attached in the Philippines. (NM Rothschild & Matters.
Sons [Australia] Ltd. v. Lepanto Consolidated
Mining Co., G.R. No. 175799, 28 Nov. 2011) Central Authority
Manner of Service of Summons in cases of Extra- Central Authority – refers to the receiving
Territorial Service authority in charge of receiving requests for service
from Requesting States and executing them or
1. With leave of court served outside the causing them to be executed.
Philippines by personal service;
NOTE: The Central Authority may decline the
2. As provided for in international conventions request for service if it does not comply with the
to which the Philippines is a party; provisions of the Hague Service Convention, or
when compliance with the request would infringe
3. With leave of court served by publication in a upon its sovereignty or security.
newspaper of general circulation, in which case
a copy of the summons and order of court must The Office of the Court Administrator (OCA) is
also be sent by registered mail to the last known designated as the Central Authority in the
address of defendant (2008 BAR); or Philippines for judicial documents for purposes of
Art. 2 of the Hague Service Convention (Per SC
4. Any other manner the court may deem Resolution dated 04 Dec. 2018).
sufficient. (Sec. 17, Rule 14, ROC, as amended)
NOTE: For extrajudicial documents, the Central
Authority is the Integrated Bar of the Philippines,
thus, not covered by these guidelines.

Civil Procedure
Scope of the Guidelines Inbound Request for Service
The Guidelines shall govern the operation and The Forwarding Authority of the Requesting State
implementation of the Hague Service Convention in from which the documents originated shall transmit
the Philippines, insofar as they concern judicial the request, together with all the documents,
documents in civil or commercial matters. including proof of payment, to the OCA.
Application of the Hague Service Convention Should the request, upon evaluation of the OCA, fails
to comply with any of the above-mentioned
The Hague Service Convention shall apply in the requirements, or there are objections for the
Philippines, provided the following conditions are execution of the request, the OCA shall inform the
present: Forwarding Authority, specifying the objection/s
thereto. If the objections are resolved, the
1. A document is to be transmitted from one State processing of the request shall proceed. Otherwise,
Party for service to another State Party; the request shall be denied, and all documents
2. The address of the intended recipient in the relating thereto shall be returned to the Forwarding
receiving State Party is known; Authority, along with a notice of objection or denial,
3. The document to be served is a judicial stating the reasons therefor.
document; and
4. The document to be served relates to a civil or When the request is sufficient in form, the OCA shall
commercial matter. forward the request to the court having jurisdiction
over the area where the intended recipient resides.
Outbound Request for Service
SERVICE UPON PRISONERS AND MINORS
Upon motion for leave of court of a party in a civil or
commercial proceeding, the court shall determine
Service of Summons upon Prisoners
whether extraterritorial service through the Hague
Service Convention is necessary, in accordance with
Service shall be effected upon him by the officer
Rules 13 and 14 of the Rules of Court, as amended.
having the management of such jail or institution
who is deemed deputized as a special sheriff for said
If the court finds that extraterritorial service under
purpose. The jail warden shall file a return within
the Hague Service Convention is warranted, it shall
five (5) calendar days from service of summons of
issue an Order to that effect.
the defendant. (Sec. 8, Rule 14, ROC, as amended)
Once all the requirements are submitted by the

Service of Summons upon Minors and
party requesting the extraterritorial service
Incompetents
through the Hague Service Convention, the court
shall coordinate with the Central Authority of the
When the defendant is a minor, insane, or otherwise
Requested State and transmit the following:
incompetent, service of summons shall be made:
1. The Order granting the extraterritorial service;

1. Upon him or her personally; and
2. The filled-out Request and Summary of
2. On his or her legal guardian if he or she has one;
Document to be Served with Warning;
or
3. The blank Certificate (to be completed by the
3. If none, upon his or her guardian ad litem whose
Central Authority of the Requested State);
appointment shall be applied for by the
4. The documents sought to be served; and
plaintiff. (Sec. 10, Rule 14, ROC, as amended)
5. Certified translations of the Model Form and all
accompanying documents, where necessary.
NOTE: In the case of a minor, service SHALL be
made on his or her parent or guardian. (Ibid.)

2022 GOLDEN NOTES
Remedial Law
SERVICE UPON DOMESTIC OR FOREIGN Summons on Foreign Private Juridical Entity

PRIVATE JURIDICAL ENTITY registered in the Philippines
Provided it has transacted business in the

Summons on Domestic Private Juridical Entity
Philippines, or is doing business in the Philippines,
(1999, 2006 BAR)
as defined by law, service may be made on its: (Re-
G-A)
Service may be made on the: (P-I-G-S-M-T-S)
1. Resident agent designated in accordance with

1. President;
law for that purpose;
2. In-house counsel
2. If there be no such agent, on the Government
3. General manager;
official designated by law to that effect; or
4. Corporate Secretary;
3. On Any of its officers or agents, directors or
5. Managing partner; or
trustees within the Philippines. (Sec. 14, Rule 14,
6. Treasurer;
ROC, as amended)
wherever they may be found,
7. or in their absence or unavailability, on their
NOTE: It is not enough to merely allege in the
secretaries;
complaint that the defendant foreign corporation is
8. If corporation is under receivership or
doing business in the Philippines. Such fact must
liquidation, to the liquidator (Sec. 12, Rule 14,
first be established by appropriate allegations.
ROC, as amended)
(HSBC v. Catalan, G.R. No. 159590, 18 Oct. 2004)
NOTE: If such service cannot be made upon any of
Summons on Foreign Private Juridical Entity
the foregoing persons, it shall be made upon the
NOT registered in the Philippines
person who customarily receives the
correspondence for the defendant at its principal
If the foreign private juridical entity is not
office.
registered in the Philippines or has no resident
agent, service may, with leave of court, be effected
Should there be a refusal on the part of the persons
outside of the Philippines through any of the
above-mentioned to receive summons despite at
following means:
least 3 attempts on 2 different dates, service may be
made electronically, if allowed by the court. (Ibid.)
1. By personal service coursed through the
Thus, there is also substituted service in case of
appropriate court in the foreign country with
domestic corporations, but the manner is only
the assistance of the Department of Foreign
through electronic mail.
Affairs;
2. By publication once in a newspaper of general
NOTE: The enumeration of persons authorized to
circulation in the country where the defendant
receive summons for juridical entities under Sec. 12,
may be found and by serving a copy of the
Rule 14 is exclusive. (Cathay Metal Corporation v.
summons and the court order by-registered
Launa West Multi-Purpose Cooperative, Inc., G.R. No.
mail at the last known address of the defendant;
172204, 02 July, 2014) Following the rule in
3. By facsimile;
Statutory Construction expression unius est
4. By electronic means with prescribed proof of
exclusion alterius, the enumeration under the rule is
service; or
restricted. Strict compliance with the rule is
5. By such other means as the court may in its
required. (Sps. Mason v. CA and Columbus Philippines
discretion direct. (Ibid.)
Bus Corporation, G.R. No. 144662, 13 Oct. 2003)

Civil Procedure
Summons on Entities without Juridical Proof of Service by Publication

Personality
1. Affidavit of the publisher, editor business or
When persons associated in an entity without advertising manager, to which affidavit a copy
juridical personality are sued under the name by of the publication shall be attached; and
which they are generally or commonly known, 2. Affidavit showing the deposit of a copy of the
service may be effected upon all the defendants by summons and order for publication in the post
serving upon any one of them, or upon the person in office, postage prepaid, directed to the
charge of the office or place of business maintained defendant by registered mail to his or her last
in such name. But such service shall not bind known address. (Sec. 22, Rule 14, ROC, as
individually any person whose connection with the amended)
entity has, upon due notice, been severed before the
action was filed. (Sec. 7, Rule 14, ROC, as amended)
H. MOTIONS
Service of Summons on Public Corporations
1. When the defendant is the Republic of the

1. MOTIONS IN GENERAL
Philippines, service may be effected on the
Solicitor General;
Definition of a Motion
2. When the defendant is a province, city or
municipality, or like public corporations, service
It is an application for relief other than by a
may be effected on its executive head, or on
pleading. (Sec. 1, Rule 15, ROC, as amended) (2007
such other officer or officers as the law or the
BAR)
court may direct. (Sec. 15, Rule 14, ROC, as
amended)
Q: Alvin filed a Petition for Declaration of
Absolute Nullity of Marriage before the RTC on
Proof of Service
the ground of psychological incapacity of his
wife Nailyn. The RTC declared their marriage
1. Be made in writing by the server;
null and void. On July 27, 2010, the Republic,
2. Set forth the manner, place, and date of service;
through the OSG, filed a Motion for
3. Specify any papers which have been served
Reconsideration (MR). However, the Notice of
with the same;
Hearing annexed to the MR erroneously set the
4. Be sworn to when made by a person other than
same for hearing on July 6, 2010 (instead of
a sheriff or his deputy; and
August 6, 2010 as the OSG later explained). The
5. If served by electronic mail, a printout of said e-
RTC denied the Republic's MR through the
mail with a copy of summons, and affidavit of
August 2010 RTC Order, on the ground that
the person mailing. (Sec. 21, Rule 14, ROC, as
under Rule 15 of the ROC, it is defective as to
amended)
when the instant motion should be heard. The
RTC treated it as one which is not set for hearing
NOTE: Absence in the sheriff’s return of a statement
and therefore, a mere scrap of paper, and as
about the impossibility of personal service is not
such it presents no question which merits the
conclusive proof that the service is invalid. The
attention and consideration of the court. Is the
plaintiff may submit proof of prior attempts at
RTC correct in denying the Republic’s Motion for
personal service during the hearing of any incident
Reconsideration?
assailing the validity of the substituted service. Also,
the impossibility of service may be established by
A: NO. It is well settled that procedural rules may
evidence.
be relaxed in the interest of substantial justice. The
"strict and rigid application of procedural rules
which would result in technicalities that tend to

2022 GOLDEN NOTES
Remedial Law
frustrate rather than promote substantial justice, intervention, answer

must always be eschewed." Here, the State's policy or reply. (Sec. 2, Rule
of upholding the sanctity of marriage takes 6, ROC, as amended)
precedence over strict adherence to Rule 15, for the
finality of the RTC Decision necessarily entails the CONTENTS AND FORMS OF MOTIONS
permanent severance of Alvin and Nailyn's marital
ties. (Republic v. Dimarucot, G.R. No. 202069, 07 Mar. Contents of a Motion
2018, J. Caguioa)
1. The relief sought to be obtained;
Kinds of Motions 2. The ground upon which it is based; and
3. If required by the Rules or necessary to prove
1. Non-Litigious Motion – One which does not facts alleged therein, shall be accompanied by
require that the parties be heard and which the supporting affidavits and other papers (Sec. 3,
court may act upon without prejudicing the Rule 15)
rights of the other party (Sec. 4, Rule 15, ROC, as
amended) (2002 BAR); Motion for Judgment
2. Litigious Motion – One which requires parties GR: Not allowed.

to be heard before a ruling on the motion is
made by a court (e.g., motion to dismiss and XPNs: Motion for:
motion for summary judgment) (Riano, 2019);
1. Judgment on the pleadings;
3. Pro Forma Motion – One which does not satisfy 2. Similar judgment; or
the requirements of the rules and one which 3. Judgment on demurrer to evidence.
will be treated as a motion intended to delay the
proceedings. (Marikina Development 2. LITIGIOUS MOTIONS
Corporation v. Flojo, G.R. No. 110801, 8 Dec.
1995) Litigious motions include:
Motions v. Pleadings 1. Motion for bill of particulars;

2. Motion to dismiss;
MOTION PLEADING 3. Motion for new trial;
It is a written 4. Motion for reconsideration;
statement of the 5. Motion for execution pending appeal;
respective claims and 6. Motion to amend after a responsive pleading
defenses of the has been filed;
parties submitted to 7. Motion to cancel statutory lien;
A motion is an the court for 8. Motion for an order to break in or for writ of
application for appropriate demolition;
relief other than a judgment. (Sec. 1, 9. Motion for intervention;
pleading. (Sec. 1, Rule 6, ROC, as 10. Motion for judgment on the pleadings;
Rule 15, ROC, as amended) 11. Motion for summary judgment;
amended) 12. Demurrer to evidence;
It may be in the form 13. Motion to declare defendant in default; and
of a complaint, 14. Other similar motions. (Sec. 5(a), Rule 15, ROC,
counterclaim, as amended)
crossclaim, third-
party complaint, or
complaint-in-

Civil Procedure
Resolution of Written Motions 5. Motion for the issuance of an alias writ of

execution;
All motions shall be served by: 6. Motion for the issuance of an order directing
the sheriff to execute the final certificate of sale;
1. Personal service; and
2. Accredited private courier; 7. Other similar motions. (Ibid)
3. Registered mail; or
4. Electronic means so as to ensure their receipt 4. PROHIBITED MOTIONS
by the other party. (Sec. 5(c), Rule 15, ROC, as
amended) The following motions shall not be allowed:
NOTE: No written motion shall be acted upon by the 1. Motion to dismiss

court without proof of service thereof. (Sec. 7, Rule
15, ROC, as amended) XPNs (Grounds):
The opposing party shall file his or her opposition to a. That the court has no jurisdiction over the
a litigious motion within 5 calendar days from subject matter of the claim;
receipt thereof. No other submissions shall be b. That there is another action pending
considered by the court in the resolution of the between the same parties for the same
motion. cause; and
c. That the cause of action is barred by a prior
The motion shall be resolved by the court within 15 judgment or by the statute of limitations;
calendar days from its receipt of the opposition
thereto, or upon expiration of the period to file such NOTE: The 2019 Amendments to the Rules of
opposition. (Sec. 5(c), Rule 15, ROC, as amended) Civil Procedure deleted the entire Rule on
Motion to Dismiss. Thus, motions to dismiss are
Hearing on litigious motions; discretionary now generally prohibited, except the grounds
provided herein.
The court may, in the exercise of its discretion, and
if deemed necessary for its resolution, call a hearing Aside from the allowed motion to dismiss on
on the motion. Notice of hearing shall be addressed the grounds enumerated under Sec. 12(a), Rule
to all parties concerned and shall specify date and 15, there are also other grounds for dismissal of
time of hearing. (Sec. 6, Rule 15, ROC, as amended) actions, such as that in Rule 17 (upon notice by
plaintiff; upon motion of plaintiff; due to fault of
3. NON-LITIGIOUS MOTIONS plaintiff) and that in Rule 33 (Demurrer to
evidence, which is, in effect, a motion to
Motions which the court may act upon without dismiss).
prejudicing the rights of adverse parties. These
motions shall not be set for hearing and shall be 2. Motion to hear affirmative defenses
resolved by the court within 5 calendar days from
receipt thereof. (Sec. 4, Rule 15, ROC, as amended) REASON: The court shall motu proprio resolve
the affirmative defenses within 30 calendar
Non-litigious motions include: days from the filing of the answer. (Sec. 12(b),
Rule 8, ROC, as amended);
1. Motion for the issuance of an alias summons;
2. Motion for extension to file answer; NOTE: As to affirmative defenses under Sec.
3. Motion for postponement; 5(b), Rule 6, the court may conduct a summary
4. Motion for the issuance of a writ of execution; hearing.

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3. Motion for reconsideration of the court’s action XPN: A motion for extension to file an answer
on the affirmative defenses as provided by Sec. 11, Rule 11; and
NOTE: Affirmative defenses, if denied, shall not 6. Motion for postponement intended for delay;
be the subject of a motion for reconsideration
or petition for certiorari, prohibition or XPN: If it is based on:
mandamus, but may be among the matters to be a. Acts of God
raised on appeal after a judgment on the merits. b. Force Majeure; or
(Sec. 12(e), Rule 8, ROC, as amended); c. Physical inability of the witness to appear
and testify
4. Motion to suspend proceedings without a
temporary restraining order or injunction NOTE: If the motion is granted based on such
issued by a higher court; exceptions, the moving party shall be warned that
the presentation of its evidence must still be
5. Motion for extension of time to file pleadings, terminated on the dates previously agreed upon.
affidavits or any other papers; (Sec. 12, Rule 15, ROC, as amended)
I. DISMISSAL OF ACTIONS
1. WITH PREJUDICE VS. WITHOUT PREJUDICE; DISMISSALS WHICH HAVE AN EFFECT OF AN

ADJUDICATION ON THE MERITS
DISMISSAL WITH PREJUDICE DISMISSAL WITHOUT PREJUDICE
1. The notice of dismissal by the plaintiff provides that the

dismissal is with prejudice; OR A dismissal made by the filing of a notice of
2. The plaintiff has previously dismissed the same case in dismissal, i.e., the complaint can be refiled.
a court of competent jurisdiction based on or including (Riano, 2014 2019)
the same claim (Sec. 1, Rule 17, ROC, as amended)
The dismissal shall have the effect of adjudication on the

merits, unless otherwise declared by the court. (AFP
Retirement and Separation Benefits System v. Republic, G.R.
No. 188956, 20 Mar. 2013)
DISMISSAL UPON MOTION OF

DISMISSAL UPON NOTICE BY
PLAINTIFF; DISMISSAL DUE TO THE FAULT
THE PLAINTIFF;
EFFECT ON EXISTING OF PLAINTIFF
TWO-DISMISSAL RULE
COUNTERCLAIM
A complaint may be dismissed by
1. If, for no justifiable cause, the
the plaintiff by filing a notice of After service of the answer or a
plaintiff fails to appear on the
dismissal at any time before motion for summary judgment by
date of the presentation of his
service of the answer or of a the adverse party. (Sec. 2, Rule 17,
evidence in chief on the
motion for summary judgment. ROC, as amended) (2010 BAR)
complaint
Upon such notice being filed, the

Civil Procedure
court shall issue an order 2. If the plaintiff fails to prosecute

confirming the dismissal. Unless his action for an unreasonable
otherwise stated in the notice, the length of time (nolle prosequi)
dismissal is without prejudice, 3. If the plaintiff fails to comply
except that a notice operates as with the Rules or any order of
adjudication upon the merits the court (Sec. 3, Rule 17, ROC,
when filed by a plaintiff who has as amended) (2008 BAR)
once dismissed in a competent
court an action based on or NOTE: The plaintiff’s failure to
including the same claim. (Sec. 1, appear at the trial after he has
Rule 17, ROC, as amended) presented his evidence and rested
his case does not warrant the
dismissal of the case on the ground
of failure to prosecute. It is merely
a waiver of his right to cross-
examine and to object to the
admissibility of evidence.
It is a matter of right.
GR: A dismissal without prejudice

i.e., the complaint can be re-filed A matter of discretion upon the
court. A complaint shall not be
XPNs: dismissed at the plaintiff's
1. The notice of dismissal by the instance save upon approval of
plaintiff provides that the the court and upon such terms
dismissal is with prejudice; or and conditions as the court deems
2. The plaintiff has once proper. (Sec. 2, Rule 17, ROC, as
dismissed in a competent amended) (2010 BAR)
court an action based on or
Matter of evidence.
including the same claim GR: It is a dismissal without
(Two-Dismissal Rule) (Sec. 1, prejudice.
GR: Dismissal is with prejudice
Rule 17, ROC, as amended).
because it has an effect of an
3. Even where the notice of XPN: If the order of dismissal
adjudication on the merits.
dismissal does not provide specifies that it is with prejudice.
that it is with prejudice but it (Sec. 2, Rule 17, ROC, as amended)
XPN: Unless otherwise declared by
is premised on the fact of
the court. (Sec. 3, Rule 17, ROC, as
payment by the defendant of NOTE: A class suit shall not be
amended)
the claim involved (Serrano v. dismissed or compromised
Cabrera, G.R. No. L-5189, 21 without the approval of the court.
Sept. 1953)
If a counterclaim has been
NOTE: The dismissal as a matter pleaded by a defendant prior to
of right ceases when an answer or the service upon him of the
a motion for summary judgment plaintiff's motion for dismissal,
is served on the plaintiff and not the dismissal shall be limited to
when the answer or motion is the complaint.
filed with the court. Thus, if a
notice of dismissal is filed by the
plaintiff even after an answer has

2022 GOLDEN NOTES
Remedial Law
been filed in court but before the

responsive pleading has been
served on the plaintiff, the notice
of dismissal is still a matter of
right.
GR: It is without prejudice to the
right of defendant to prosecute
his counterclaim in a separate
Dismissal upon motion of the
action.
defendant or upon the court's own
Since there is no answer yet filed
motion is without prejudice to the
by the adverse party, no XPN: Unless within fifteen (15)
right of the defendant to prosecute
counterclaim is recoverable. calendar days from notice of the
his counterclaim on the same or
motion he manifests his
separate action.
preference to have his
counterclaim resolved in the
same action.
NOTE: Failure of the plaintiff to appear at the pre-trial when so required shall cause for the dismissal of the
action. (Suico Industrial Corp. v. Lagura-Yap, G.R. No. 177711, 05 Sept. 2012)

Civil Procedure
2. RULE 17 3. In a court of competent jurisdiction (Riano,

2014 2019)
When notice of dismissal is executory
NOTE: Rule 17 governs dismissal of actions at the
It is executory as of the date the notice is filed by the instance of the plaintiff. Hence, the “two-dismissal
plaintiff and not the date the court issues the order rule” under Sec. 1, Rule 17 will not apply if the prior
confirming the dismissal because such dismissal by dismissal was done at the instance of the defendant.
the plaintiff, if filed before an answer or a motion for (Ramon Ching and Powing Properties, Inc. v. Cheng,
summary judgment has been served upon him, is a G.R. No. 175507, 08 Oct. 2014)
matter of right. (Riano, 2019)
Effect on Existing Counterclaim
Notice of dismissal as adjudication on the merits
1. If a counterclaim has already been pleaded by
It operates as an adjudication on the merits when the defendant prior to the service upon him or
filed by a plaintiff who has once dismissed in a her of the plaintiff’s motion to dismiss, and the
competent court an action based on or including the court grants the said motion to dismiss, the
same claim. (Two-Dismissal Rule) (Sec. 1, Rule 17, dismissal shall be limited to the complaint since
ROC, as amended) it does not carry with it the dismissal of the
counterclaim. (Sec. 2, Rule 17, ROC, as amended)
Procedurally, when the complaint is dismissed for
failure to prosecute and the dismissal is unqualified, NOTE: The nature of the counterclaim
the dismissal has the effect of adjudication on the notwithstanding, the dismissal of the complaint
merits. (Shimizu Phil. Contractors, Inc. v. Magsalin, does not ipso jure result in the dismissal of the
G.R. No. 170026, 20 June 2012) counterclaim, and the latter may remain for
independent adjudication of the court, provided
When appeal is not available as a remedy that such counterclaim, states a sufficient cause
of action and does not labor under any infirmity
Appeal is not available as a remedy to question that may warrant its outright dismissal. (Dio v.
either the grant or denial of a motion to dismiss Subic Bay Marine Exploratorium, Inc., G.R. No.
based on improper venue. If the motion is denied, 189532, 11 June 2014)
the order of denial is interlocutory since it does not
completely dispose of the case and is not appealable. 2. The defendant, if he or she so desires, may
If the motion is granted, the order of dismissal is one prosecute his or her counterclaim either in a
without prejudice since the complaint can be re- separate action or in the same action. Should he
filed and is not appealable under Section 1(g) of or she choose to have his counterclaim resolved
Rule 41. (Pillars Property Corporation v. Centuries in the same action, he or she must notify the
Communities Corporation, G.R. No. 201021, 04 Mar. court of his preference within 15 days from
2019, J. Caguioa) notice of the plaintiff’s motion to dismiss. (Sec.
TWO-DISMISSAL RULE
Q: Makee filed a suit for collection of Php
The second notice of dismissal will bar the refiling 387,000 against Ron in the RTC of Manila. Aside
of the action because it will operate as an from alleging payment as a defense, Ron, in his
adjudication of the claim upon the merits. answer, set up counterclaims for Php 100,000 as
damages and P30,000 as attorney’s fees as a
It applies when the plaintiff has: result of the baseless filing of the complaint, as
well as for the Php 250,000 as the balance of the
1. Twice dismissed the actions; purchase price of the 30 units of air conditioners
2. Based on or including the same claim; and he sold to Makee. Suppose Ron’s counterclaim

2022 GOLDEN NOTES
Remedial Law
for the unpaid balance is Php 310,000, what will calendar days from the filing of the last responsive
happen to his counterclaims if the court pleading. (Sec. 1, Rule 18, ROC, as amended)
dismisses the complaint after holding a
preliminary hearing on Ron’s affirmative Last Responsive Pleading
defenses? (2008 BAR)
The last permissible pleading that a party can file is
A: The dismissal of the complaint does not involve the reply to the answer to the last pleading asserting
the dismissal of the counterclaims of Ron. The rule a claim. This claim could be the original complaint,
on the matter is clear. The dismissal of the the counterclaim, cross-claim, or third-party
complaint shall be without prejudice to the complaint.
prosecution in the same or separate action of a
counterclaim pleaded in the answer. The rule does If an answer is filed and served in response to these
not make a distinction between a compulsory and claims, the pleading in response to these answers is
permissive counterclaim. A similar rule applies the reply (Sarmiento v. Juan, G.R. No. L-56605, 28 Jan.
under Secs. 2 and 3, Rule 17. 1983) which is to be filed within fifteen (15)
calendar days from the service of the pleading
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM responded to. (Sec. 6, Rule 11, ROC, as amended)
OR THIRD-PARTY COMPLAINT
For purposes of the pleading, the expiration of the
The rule on the dismissal of a complaint applies to period for filing the last pleading without it having
the dismissal of any counterclaim, crossclaim or been served and filed is sufficient. (Riano, 2019)
third-party claim. A voluntary dismissal by the
claimant alone by notice pursuant to Sec. 1, Rule 17 NOTE: Where the last pleading has not yet been
shall be made before a responsive pleading or a served and filed, the case is not yet ready for pre-
motion for summary judgment is served or, if there trial. (Pioneer Insurance & Surety Corporation v.
is none, before the introduction of evidence at the Hontanosas, G.R. No. L-35951, 31 Aug. 1977)
trial or hearing (Sec. 4, Rule 17, ROC, as amended). However, the “last responsive pleading” need not be
literally construed as one having been served and
filed.
J. PRE-TRIAL (RULE 18)
Nature of a Pre-trial
It is mandatory and should be terminated promptly.

Concept of Pre-Trial
It is a procedural device by which the court is called

It is not a mere technicality in court proceedings for
upon, after the filing of the last pleading, to compel
it serves a vital objective: the simplification,
the parties and their lawyers to appear before it, and
abbreviation, and expedition of the trial, if not
negotiate an amicable settlement or otherwise
indeed its dispensation. (The Philippine American
make a formal statement and embody in a single
Life & General Insurance Co. v. Enario, G.R. No.
document the issues of fact and law involved in the
182075, 15 Sept. 2010)
action, and such other matters as may aid in the
prompt disposition of the action.
Pre-trial Conference
Conduct of a pre-trial (2001 BAR)

During the pre-trial, the judge shall be the one to ask
questions on issues raised by the parties and all
After the last responsive pleading has been served
questions or comments by counsel or parties must
and filed, the branch clerk of court shall issue,
be directed to the judge. The purpose of this is to
within five (5) calendar days from filing, a notice of
pre-trial which shall be set not later than sixty (60)

Civil Procedure
avoid hostilities between the parties. (A.M. No. 03-1- 8. Such other matters as may aid in the prompt
09-SC, July 13, 2004) disposition of the action. (Sec. 2, Rule 18, ROC, as
amended)
Purposes of Pre-trial
Effect of failure of a party and counsel to appear
The court shall consider the following purposes: without just cause, despite notice
1. Possibility of an amicable settlement or of a It shall result in a waiver of any objections to the

submission to alternative modes of dispute faithfulness of the reproductions marked, or their
resolution; genuineness and due execution. (Ibid.)
2. Simplification of the issues;
3. Possibility of obtaining stipulations or Effect of failure without just cause of a party and
admissions of facts and of documents to avoid counsel to bring the evidence required
unnecessary proof;
4. Limitation of the number and identification of It shall be deemed a waiver of the presentation of
witnesses and the setting of trial dates; such evidence. (Ibid.)
5. Advisability of a preliminary reference of issues
to a commissioner; Effect of failure of the parties to settle the case
6. Propriety of rendering judgment on the during Pre-trial Proceeding
pleadings, or summary judgment, or of
dismissing the action should a valid ground The judge should not allow the termination of a pre-
therefore be found to exist; trial simply because of the manifestation of the
7. The requirement for the parties to: parties that they cannot settle the case. Instead, he
should expose the parties to the advantages of pre-
a. Mark their respective evidence if not yet trial. He must also be mindful that there are
marked in the judicial affidavits of their important aspects of the pre-trial that ought to be
witnesses; taken up to expedite the disposition of the case.
b. Examine and make comparisons of the (Ramos v. Sps. Lavendia, G.R No. 176706, 08 Oct.
adverse parties evidence vis-à-vis the 2008)
copies to be marked;
c. Manifest for the record stipulations If all efforts to settle fail, the trial judge shall
regarding the faithfulness of the endeavor to achieve the other purposes of a pre-
reproductions and the genuineness and trial like, among others, obtaining admissions or
due execution of the adverse parties’ stipulations of fact. To obtain admissions, the judge
evidence; shall ask the parties to submit whatever depositions
d. Reserve evidence not available at the pre- have been taken under Rule 23, the answers to
trial, but only in the following manner: written interrogatories under Rule 25 and the
answers to request for admissions by the adverse
i. For testimonial evidence, by giving party under Rule 26. He may also require the
the name or position and the nature of production of documents or things requested by a
the testimony of the proposed party under Rule 37 and the results of the physical
witness; and mental examination of persons under Rule 28.
ii. For documentary evidence and other (A.M. No. 03-1-09-SC, 13 July 2004)
object evidence, by giving a particular
description of the evidence. One Day Examination of Witness Rule (2009,
2016 BAR)
NOTE: No reservation shall be
allowed if not made in the manner In the pre-trial, the court shall ask the parties to
described above. agree on the specific dates for continuous trial,

2022 GOLDEN NOTES
Remedial Law
adhere to the case flow chart determined by the proceedings void. This must be so as part of a party’s
court and use the time frame for each stage setting right to due process. (Agulto v. Tecson, G.R. No.
the trial dates. 145276, 29 Nov. 2005)
Adherence to the One Day Examination of Witness Court-Annexed Mediation (CAM)

Rule shall be required where the witness shall be
fully examined in 1 day only, subject to the court’s After pre-trial and after issues are joined, the court
discretion during the trial on whether or not to shall refer the parties for mandatory court-annexed
extend the examination for justifiable reasons. mediation (CAM). Parties will then be referred to
the Philippine Mediation Center for the settlement
Most Important Witness Rule (2016 BAR) of their dispute, assisted by a mediator accredited
by the SC. It shall not exceed 30 calendar days
Where no settlement has been effected, the court without extension. (Sec. 8, Rule 18, ROC, as amended)
shall follow the Most Important Witness Rule,
where the court shall determine the most important Judicial Dispute Resolution (JDR)
witnesses and limit the number of such witnesses
and require the parties and/or counsels to submit It is a process whereby the judge employs
to the branch clerk of court the names, addresses conciliation, mediation or early neutral evaluation
and contact numbers of the witnesses to be in order to settle a case at the pre-trial case. The case
summoned by subpoena. Note, however, that the may be referred to another court for JDR only if the
court may also refer the case to a trial by judge of the court to which the case was originally
commissioner under Rule 32. (A.M. No. 03-1-09-SC, raffled is convinced that settlement is still possible.
13 July 2004) It shall be conducted within a non-extendible period
of 15 days from notice of failure of CAM. (Sec. 9, Rule
NOTICE OF PRE-TRIAL 18, ROC, as amended)
Dates included in the notice The conduct of JDR is no longer mandatory.
1. Pre-trial; NOTE: All proceedings during the CAM and the JDR
2. Court-Annexed Mediation; and shall be confidential. (Ibid.)
3. Judicial Dispute Resolution, if necessary (Sec. 3,
Rule 18, ROC, as amended) Effect of Failure of JDR
NOTE: Non-appearance at any of the foregoing If judicial dispute resolution fails, trial before the
settings shall be deemed as non-appearance at the original court shall proceed on the dates agreed
pre-trial and shall merit the same sanctions under upon. (Sec. 9, Rule 18, ROC, as amended)
Sec. 5 of Rule 18.
APPEARANCE OF PARTIES;
Service of notice of pre-trial EFFECT OF FAILURE TO APPEAR
The notice of pre-trial shall be served on counsel, or Appearance of parties at pre-trial, CAM and ADR
on the party if he or she has no counsel. The counsel
served with such notice is charged with the duty of Both the parties and their counsel must appear. The
notifying the party represented by him or her. (Sec. non-appearance of a party and counsel may be
3, Rule 18, ROC, as amended) excused only for acts of God, force majeure or duly
substantiated physical inability. (Sec. 4, Rule 18,
NOTE: Sending a notice of pre-trial stating the date, ROC, as amended)
time and place of pre-trial is mandatory. Its absence
will render the pre-trial and subsequent

Civil Procedure
Should the lawyer undertake to appear not only as When non-appearance of a party in a pre-trial
an attorney but in substitution of his client’s person, conference excused
it is imperative for him to have “special authority” to
make such substantive agreements as only the 1. If a valid cause is shown therefore; or
client otherwise has capacity to make. (Feria & 2. If a representative shall appear on behalf of a
Noche, 2013) party fully authorized in writing to:
Under the new rules, the “special authority” of the a. Enter into an amicable settlement;
lawyer or representative should be in writing b. Submit to alternative modes of dispute
because the courts can neither second-guess the resolution; and
specific powers given, nor can the courts assume c. Enter into stipulations or admissions of
that all the powers specified in Section Sec. 4 of Rule facts and of documents (Sec. 4, Rule 18, ROC,
18 are granted by a party to his representative. as amended)
(Republic v. CA, 429 SCRA 669)
NOTE: The phraseology of the provision suggests
A representative may appear on behalf of a party, that it is not sufficient for the written authority to
but must be fully authorized in writing to enter into give to the representative the power to enter into
an amicable settlement, to submit to alternative one of the matters mentioned in Sec. 4 of Rule 18, as
modes of dispute resolution, and to enter into when the only authority granted is to enter into
stipulations or admissions of facts and documents. amicable settlement. The authority must also confer
(Sec. 4, Rule 18, ROC, as amended) upon the representative the power to enter into
alternative modes of dispute resolution and
Failure to appear during pre-trial when duly stipulations and admissions of fact. An incomplete
notified authority does not satisfy the requirements of the
Rules and should be deemed the equivalent of
1. Plaintiff’s and counsel’s failure to appear having no authority at all. Further, the mere
without valid cause - shall be a cause for the presentation of such written authority is not
dismissal of the action, with prejudice, unless sufficient, but must be complemented by a showing
otherwise ordered by the court. of valid cause for the non-appearance of the party
himself. (Ibid.)
NOTE: The plaintiff’s remedies from the order
of dismissal include: PRE-TRIAL BRIEF;
a. Appeal; or EFFECT OF FAILURE TO FILE
b. Re-filing of the complaint, if the order
of dismissal is without prejudice. (Sec. When filed
1(g), Rule 41, ROC, as amended)
The parties shall file their respective pre-trial briefs
2. Defendant’s and counsel’s non-attendance - in such a manner as shall ensure their receipt
shall be a cause to allow the plaintiff to present thereof at least three (3) calendar days before the
his or her evidence ex parte, within ten (10) date of the pre-trial. (Sec. 6, Rule 18, ROC, as
calendar days from termination of the pre-trial, amended)
and the court to render judgment on the basis
of the evidence offered (Sec. 5, Rule 18, ROC, as Contents of a pre-trial brief
amended)
1. A concise statement of the case and the reliefs
NOTE: The defendant may move for the prayed for;
reconsideration of the order and if the denial is 2. A summary of admitted facts and proposed
tainted with grave abuse of discretion, he may stipulation of facts;
file a petition for certiorari.

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3. The main factual and legal issues to be tried or 2. The minutes of the pre-trial conference;
resolved; 3. The legal and factual issue/s to be tried;
4. The propriety of referral of factual issues to 4. The applicable law, rules and jurisprudence;
commissioners; 5. The evidence marked;
5. The documents or other object evidence to be 6. The specific trial dates for continuous trial,
marked, stating the purpose thereof; which shall be within the period provided by
6. The names of the witnesses, and the summary the Rules;
of their respective testimonies; and 7. The case flowchart to be determined by the
7. A brief statement of points of law and citation of court, which shall contain the different stages of
authorities. (Sec. 6, Rule 18, ROC, as amended) the proceedings up to the promulgation of the
decision and the use of time frames for each
NOTE: The parties are bound by the stage in setting the trial dates;
representations and statements in their respective 8. A statement that one-day examination of
pre-trial briefs. (A.M. 03-1-09-SC, 13 July 2004) witness rule and most important witness rule
Hence, such representations and statements are in under A.M. No. 03-1-09-SC (Guidelines for Pre-
the nature of judicial admissions in relation to Sec. Trial) shall be strictly followed; and
4, Rule 129. 9. A statement that the court shall render
judgment on the pleadings or summary
Effect of Failure to file a Pre-trial Brief judgment, as the case may be. (Sec. 7, Rule 18,
ROC, as amended)
It shall have the same effect as failure to appear at
the pre-trial. (Sec. 6, Rule 18, ROC, as amended) The contents shall control the subsequent
proceedings, unless modified before trial to prevent
1. If plaintiff fails to file a pre-trial brief- such manifest injustice. (Ibid.)
failure shall be a cause for dismissal of the
action; Postponement of presentation of the parties’
2. If defendant fails to do so- such failure shall be witnesses
a cause to allow the plaintiff to present his
evidence ex parte. GR: Prohibited
NOTE: The dismissal of the complaint for failure to XPNs:

file pre-trial brief is discretionary on the part of the 1. Acts of God;
trial court. (Ramos v. Sps. Lavendia, G.R. No. 176706, 2. Force majeure; or
08 Oct. 2008) 3. Physical inability of the witness to appear and
testify.
PRE-TRIAL ORDER
The party who caused the postponement is warned
Pre-trial Order that the presentation of its evidence must still be
terminated within the remaining dates previously
An order issued by the court upon termination of agreed upon. (Ibid.)
the pre-trial. It shall be issued within 10 calendar
days after termination of the pre-trial. (Sec. 3, Rule Should the opposing party fail to appear without
18, ROC, as amended) valid cause, the presentation of the scheduled
witness will proceed with the absent party being
Contents of a Pre-trial Order deemed to have waived the right to interpose
objection and conduct cross-examination. (Ibid.)
The order recites in detail the following:
Q: Upon termination of the pre-trial, the judge
1. An enumeration of the admitted facts; dictated the pre-trial order in the presence of

Civil Procedure
the parties and their counsel, reciting what had same within a non-extendible period of five (5)
transpired and defining three (3) issues to be days from receipt of a copy thereof.” None of the
tried.: parties manifested their intent to revise the said
order. During the hearing, Santiago orally
a. If, immediately upon receipt of his copy of manifested in open court that they would be
the pre-trial order, plaintiff’s counsel should presenting six additional witnesses in place of
move for its amendment to include a fourth one witness, who were not among those listed in
(4th) triable issue which he allegedly the Pre-Trial Order. The RTC Judge denied the
inadvertently failed to mention when the oral motion. Is the judge correct?
judge dictated the order. Should the motion
to amend be granted? A: YES. The Pre-Trial Order categorically stated that
b. Suppose trial had already commenced and only Jose's testimony, and that of Petra's, would be
after the plaintiff’s second witness had presented on Jose's behalf. Considering that
testified, the defendant’s counsel moves for petitioners’ lawyer did not take any steps to amend
the amendment of the pre-trial order to the Pre-Trial Order, petitioners' additional
include a fifth (5th) triable issue vital to his witnesses are excluded from trial. Under the rules
client’s defense. Should the motion be on pre-trial, evidence other than those that had
granted over the objection of plaintiff’s been earlier identified and pre-marked during the
counsel? (2009 BAR) pre-trial shall not be allowed by the court. While
faithful compliance with these rules is undoubtedly
A: desirable, they may be relaxed in cases where their
a. YES. The motion to amend the pre-trial order application would frustrate, rather than facilitate,
should be granted. The contents of the pre-trial the ends of justice. The relaxation of these rules,
order may be modified before trial to prevent however, is contingent upon a showing of
manifest in justice. For the court to refuse compelling and persuasive reasons to justify the
consideration of a triable issue would result in same. Santiago have failed to sufficiently show that
a manifest injustice. such compelling and persuasive reasons exist in this
b. NO. The motion should not be granted. The case. (Chua v. Spouses Santiago, G.R. No. 219309, 22
contents of the pre-trial order shall control the Nov. 2017, J. Caguioa)
subsequent course of action unless modified
before trial to prevent manifest injustice. Here DISTINCTION BETWEEN PRE-TRIAL IN A CIVIL
trial was already on-going. Hence the CASE AND PRE-TRIAL IN A CRIMINAL CASE
amendment of the pre-trial order to add an
issue may no longer be made. PRE-TRIAL IN CIVIL PRE-TRIAL IN
CASE CRIMINAL CASE
Q: Jose, Santiago and Petra are siblings and are The branch clerk of It is ordered by the
registered owners of two parcels of land with a court shall issue a court and no motion to
rice mill housing several pieces of milling notice of pre-trial after set the case for pre-
equipment. Santiago and his wife sent several the last responsive trial is required from
demands to the other siblings for the partition pleading has been either the prosecution
of the land. As their demands left unheeded, served and filed. (Sec. or the defense. (Sec. 1,
Santiago filed a complaint to partition and 1, Rule 18, ROC, as Rule 118, ROC, as
damages before the RTC. After submission of amended) amended)
their pre-trial briefs and the conduct of pre-trial The notice of pre-trial The pre-trial is
conference, the RTC Judge issued a Pre-Trial shall be issued within 5 ordered by the court
Order stating "all evidence to be adduced and calendar days from the after arraignment and
presented by both parties shall be limited to filing of the last within 30 days from
those identified," with a colatilla that they responsive pleading. the date the court
should “take the necessary steps to correct the (Ibid.) acquires jurisdiction

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over the person of the 2. The parties’ documentary or object evidence, if

accused. (Ibid.) any, which shall be attached to the judicial
affidavits and marked as Exhibits A, B, C and so
It considers the It does not include the on in the case of the complainant or the plaintiff,
possibility of an possibility of amicable and as Exhibits 1, 2, 3, and so on in the case of
amicable settlement as settlement of criminal the respondent or defendant. (Sec. 2, A.M. No.
an important objective. liability as one of its 12-8-8-SC or the Judicial Affidavit Rule)
(Sec 2(a), Rule 18) purposes. (Ibid.)
Requires the NOTE: Without submission of the judicial affidavit,
proceeding during the All agreements or no witness may be allowed to be presented and
preliminary admissions made or testify for it forms part of the pre-trial.
conference to be entered during the
recorded in the pre-trial conference However, under the 2019 Amendments to the Rules
“minutes of shall be reduced in of Civil Procedure, the judicial affidavits of
preliminary writing and signed by witnesses must already be attached to the
conference” to be both the accused and pleading and form an integral part thereof. Only
signed by both parties counsel, otherwise, witnesses whose judicial affidavits are attached to
and/or counsel. The they cannot be used the pleading shall be presented by the parties
rule allows either the against the accused. during trial. Except if a party presents meritorious
party or his counsel to (Sec. 2, Rule 118, ROC, reasons as basis for the admission of additional
sign the minutes. (A.M. as amended) witnesses, no other witness or affidavit shall be
No. 03-1-09-SC) heard or admitted by the court. (Sec. 6, Rule 7, ROC,
Sanctions for non- The sanctions in a as amended)
appearance in a pre- criminal case are
trial are imposed upon imposed upon the
the plaintiff and the counsel for the accused
K. INTERVENTION (RULE 19)
defendant in a civil or the prosecutor. (Sec.
case. (Sec. 4, Rule 18, 3, Rule 118, ROC, as
ROC, as amended) amended)
Intervention is a remedy by which a third party, not
It is specifically
originally impleaded in the proceedings, becomes a
required to be It is not specifically
litigant therein to enable him or her or it to protect
submitted in a civil required in a criminal
or preserve a right or interest which may be affected
case. (Sec. 6, Rule 18, case.
by such proceedings. It is a proceeding in a suit or
ROC, as amended)
action by which third person is permitted by the
court to make himself a party, either joining the
Pursuant to the Judicial Affidavit Rule under
plaintiff in claiming what is sought by the complaint,
A.M. No. 12-8-8-SC
or uniting with the defendant in resisting the claims
of the plaintiff, or demanding something adverse
Parties shall file with the court and serve on the
from both of them. (Mactan-Cebu International
adverse party, personally or by licensed courier
Airport Authority v. Heirs of Minoza, G.R. No. 186045,
service, not later than five (5) days before pre-trial
02 Feb. 2011)
or preliminary conference or the scheduled hearing
with respect to motions and incidents, the
In claiming the right to intervene, the intervenor
following:
must comply with the requirements laid down by
Rule 19 of the Rules of Court. (Office of the
1. Judicial affidavits of their witnesses, which shall
Ombudsman v. Samaniego, G.R. No. 175573, 11 Sept.
take the place of such witnesses’ direct
2008)
testimonies; and

Civil Procedure
NOTE: Intervention is merely optional and A: NO. The remedy availed of by the Sps.
permissive (Mabayo Farms, Inc. v. CA, G.R. No. Constantino is erroneous and cannot be given due
140058, 01 Aug. 2002). Hence, the court has the full course.
measure of discretion in permitting or disallowing
the same. (Yau v. Manila Banking Corporation, G.R. Intervention is not an absolute right and may be
No. 126731, 11 July 2002) secured only in accordance with the Rules. In
seeking permission to intervene. Noticeably, Sps.
Q: Alejandria Benitez (Alejandria) filed a Constantino filed their motion for intervention
petition for the settlement, division, and more than two years from the date the Decision of
partition of the intestate estate of her husband the RTC of Batac granting the petition for the
Romeo Benitez (Romeo) before the RTC of Batac, settlement of Romeo's intestate estate became final
Ilocos Norte. Romeo left several real estate and executory.
properties including properties located in Laoag
City such as Lot No. 9398-B, and Lot No. 9400-C, In exceptional cases, the Court has previously
covered by T-27844 and T-26828, respectively. relaxed the rules on the timeliness of filing an
Meanwhile, Alejandria and Analiza filed a intervention. The permissive tenor of the provision
petition for the issuance of new owner's on intervention shows the intention of the Rules to
duplicate copies of TCT Nos. T-27844 and T- afford the court full discretion in permitting or
26828 in the RTC of Laoag City, Branch 65 disallowing it. However, this discretion should be
(cadastral court) claiming that said documents exercised judiciously and only after consideration of
were missing. In a Decision, the cadastral court all the circumstances obtaining in the case. Here,
directed the issuance of new owner's duplicate there is no reason to depart from the clear language
copies of TCT Nos. T-27844 and T-26828. of Section 2, Rule 19 of the Rules.
Sps. Constantino allegedly purchased the lots In this case the Court can no longer allow Sps.
covered by TCT Nos. T-26828 and T- 27844 from Constantino to intervene in the intestate proceeding
Ceazar Cu Benitez (Ceazar) who is the son of of Romeo's estate that had already been closed and
Romeo and Lolita Cu (Lolita), both deceased. terminated more than two years before their
After the purchase of the subject lots, Sps. motion was filed. (Sps. Constantino v. Benitez, G.R.
Constantino learned about the Decision of the No. 233507, 10 Feb. 2021)
cadastral court. Sps. Constantino filed a petition
for annulment of judgment of the Decision of the Who may intervene?
cadastral court. The Sps. Constantino also filed a
Motion for Intervention in the intestate court. a. A person who has a legal interest in the matter
The CA opined that filing a motion for in litigation;
intervention was the wrong remedy. For the CA, b. or in the success of either of the parties,;
Sps. Constantino should have filed a petition for c. or an interest against both, or is so situated as to
relief from judgment under Section 3, Rule 38 of be adversely affected by a distribution or other
the Rules within 60 days from learning of the disposition of property in the custody of the court
judgment, final order, or other proceeding to be (Section 1, Rule 19, ROC, as amended)
set aside, but not more than six months after Legal Interest
such judgment or final order was entered, or
such proceeding was taken. The legal interest must be actual, material, direct
and of an immediate character, not merely
Did the Sps. Constantino correctly avail of the contingent or expectant, so that the intervenor will
proper remedy when it filed a Motion for either gain or lose by the direct legal operation of
Intervention? judgment.

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Intervention vs. Interpleader NOTE: A motion is necessary because leave of

court is required before a person may be
INTERVENTION INTERPLEADER allowed to intervene. (Sec. 1, Rule 19, ROC, as
An ancillary action An original action amended)
Commenced by a
motion for leave to 2. The movant must show in his or her motion that
intervene filed in a Commenced by the he or she:
pending case attaching filing of a complaint. a. Has an immediate legal interest in the
thereto the pleading- matter in controversy, not merely
in-intervention. contingent;
Filed by a person who b. Has legal interest in the success of either of
has a legal interest in the parties in the action;
any of the following: c. Has legal interest against both parties; or
1. The subject d. Is so situated as to be adversely affected by
matter of the a distribution or other disposition of the
litigation; property in the custody of the court or of an
2. The success of Filed by a person who officer thereof (Sec. 1, Rule 19, ROC, as
either parties; has no interest in the amended) (2000 BAR);
3. An interest subject matter of the
against both; or action, or if he has an 3. Intervention will not unduly delay or prejudice
4. He may be interest, the same is the adjudication of the rights of original parties;
adversely not disputed by the and
affected by the claimants. 4. Intervenor’s rights may not be fully protected in
disposition or a separate proceeding. (Mabayo Farms, Inc. v.
distribution of the CA, G.R. No. 140058, 01 Aug. 2002)
property in the
custody of the NOTE: It is recognized that a judgment creditor who
court or of an has reduced his claim to judgment may be allowed
officer thereof. to intervene and a purchaser who acquires an
Defendants are already Defendants are being interest in property upon which an attachment has
original parties to the sued precisely to been levied may intervene in the underlying action
pending suit implead them. in which the writ of attachment was issued for the
purpose of challenging the attachment. (Yau vs
Factors in the approval of a motion to intervene Manila Banking Corp, G.R. No. 126731, 11 July, 2002)
1. Whether or not the intervention will unduly Intervention is NOT an independent proceeding
delay or prejudice the adjudication of the rights (2000 BAR)
of the original parties; and
2. Whether or not the intervenor’s right may be It is not an independent proceeding but is ancillary
duly protected in a separate proceeding. (Sec. 1, and supplemental to an existing litigation. (Saw v.
Rule 19, ROC, as amended) CA, G.R. No. 90580, 08 Apr. 1991)
Requisites for Intervention Its purpose is to enable a stranger to an action to

become a party to protect his interest. (Santiago
1. There must be a motion for intervention filed Land Development Corporation v. CA, G.R. No.
before rendition of judgment by the trial court 106194, 07 Aug. 1997)
(Sec. 1, Rule 19, ROC, as amended);

Civil Procedure
NOTE: Denial of a motion to intervene does not NOTE: A change in theory of the defense is not a
constitute res judicata. The remedy of the proper intervention. Intervention should not alter
intervenor is to file a separate action. the theory of both parties.
Intervention cannot alter nature of action (2011 Intervention may be allowed after judgment has
BAR) been rendered by the court
An intervention cannot alter the nature of the GR: After rendition of judgment, a motion to
action, and the issues are already joined. (Castro v. intervene is barred, even if the judgment itself
David, G.R. No. L-8508, 29 Nov. 1956) recognizes the right of the movant. The motion to
intervene must be filed at any time before rendition
TIME TO INTERVENE of judgment by the trial court. (Sec. 2, Rule 19, ROC,
as amended) Hence, intervention after trial and
Period to intervene decision can no longer be permitted. (Yau v. Manila
Banking Corporation, G.R. No. 126731, 11 July, 2002)
The motion to intervene may be filed any time
before rendition of judgment by the trial court. A XPNs: Although Rule 19 is explicit on the period
copy of the pleading-in-intervention shall be when a motion to intervene may be filed, the
attached to the motion and served on the original Supreme Court allowed exceptions in several cases
parties. (Sec. 2, Rule 19, ROC, as amended) (Rodriguez v. CA, G.R. No. 184589, 13 June, 2013),
such as:
Procedure for intervention
1. With respect to indispensable parties,
1. The intervenor shall file a motion for intervention may be allowed even on appeal
intervention attaching thereto his pleading-in- (Falcasantos v. Falcasantos, G.R. No. L-4627, 13
intervention. The following are the pleadings to May. 1952); and
be filed depending upon the purpose of the 2. When the intervenor is the Republic (Lim v.
intervention: Pacquing, G.R. No. 115044, 27 Jan. 1995);
a. If the purpose is to assert a claim against NOTE: Prescription does not lie against the
either or all of the original parties – The State. The State is not estopped by the inaction
pleading shall be called a complaint-in- or mistakes of its agents.
intervention.
b. If the pleading seeks to unite with the 3. Where necessary to protect some interest
defending party in resisting a claim which cannot otherwise be protected, and for
against the latter – File an answer-in- the purpose of preserving the intervenor’s right
intervention. (Sec. 3, Rule 19, ROC, as to appeal (Pinlac v. CA, G.R. No. 91486, 10 Sept.
amended) 2003); or
2. The motion and the pleading shall be served 4. May be allowed during the pendency of the
upon the original parties. appeal, where the interest of justice so requires.
(Tahanan Dev. Corp. v. CA, G.R. No. L-55771, 15
3. The answer to the complaint-in-intervention Nov. 1982)
shall be filed within fifteen (15) calendar days
from notice of the order admitting the same, The allowance or disallowance of a motion for
unless a different period is fixed by the courts. intervention rests on the sound discretion of the
(Sec. 4, Rule 19, ROC, as amended) court after consideration of the appropriate
circumstances. The rule on intervention is a rule of
procedure in which the subject is to make the

2022 GOLDEN NOTES
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powers of the court fully and completely available 3. Those whose trials were adjourned or
for justice. Its purpose is not to hinder or delay, but postponed, and
to facilitate and promote the administration of 4. Those with motions to set for hearing.
justice.” Preference shall be given to habeas corpus
cases, election cases, special civil actions, and
REMEDY FOR THE DENIAL OF those so required by law. (Sec. 1, Rule 20, ROC,
MOTION TO INTERVENE as amended)
Mandamus from the Order of the court allowing ASSIGNMENT OF CASES

or disallowing intervention
The assignment of cases to the different branches of
GR: The granting or refusal of a motion to intervene a court shall be done:
is a matter of judicial discretion, and once exercised, 1. Exclusively by raffle;
the decision of the court cannot be reviewed or 2. Open session of which adequate notice
controlled by mandamus, however erroneous it may shall be given so as to afford interested
be. (Otto Gmur, Inc. v. Revilla, G.R. No. L-34782, 13 parties the opportunity to be present. (Sec.
Feb. 1931, Feria & Noche, 2013) 2, Rule 20, ROC, as amended)
XPN: When there is an arbitrary abuse of that

discretion, in which case mandamus may issue if M. SUBPOENA
there is no other adequate remedy, though the
result is that the court will be called upon to review
the exercise of a discretionary power. (Ibid.)
Subpoena is a Latin term which literally means
“under the pain of penalty.”
NOTE: A court’s power to allow or deny
intervention is circumscribed by the basic juridical
SUBPOENA DUCES TECUM
procedure that only a person with interest in an
action or proceeding may be allowed to intervene.
A process directed to a person requiring him or her
(Anonuevo v. Intestate Estate of Jalandoni, G.R. No.
to bring with him or her any books, documents, or
178221, 01 Dec. 2010)
other things under his control. (Sec. 1, Rule 21, ROC,
as amended)
This discretion, however, must be exercised
judiciously and only after consideration of all the
SUBPOENA AD TESTIFICANDUM
circumstances obtaining in the case. Thus, where
substantial interest of the movant in the subject
It is a process directed to a person requiring him or
matter is undisputed, a denial of a motion to
her to attend and to testify at the hearing or trial of
intervene is an injustice. (Mago v. CA, G.R. No.
an action or at any investigation conducted by
115624, 25 Feb. 1999)
competent authority or for the taking of his
deposition. (Ibid.)
L. CALENDAR OF CASES (RULE 20) Subpoena vs. Summons
SUBPOENA SUMMONS
CALENDAR OF CASES An order to appear and
testify at the hearing or
Writ notifying of action
The clerk of court, under the direct supervision of for taking deposition
brought against
the judge, shall keep a calendar of case: or to bring any books,
defendant.
1. For pre-trial; documents, and other
2. For trial; things under the

Civil Procedure
control of the person to 4. Any Justice of the SC or of the CA in any case or

whom it is directed. investigation pending within the Philippines.
(Sec 1, Rule 21, ROC, as (Sec. 2, Rule 21, ROC, as amended)
amended)
May be served to a Served on the Subpoena to a prisoner
non-party. (Sec. 1, Rule defendant. (Sec. 2, Rule
21, ROC, as amended) 14, ROC, as amended) The judge or officer shall examine and study
Needs tender of carefully such application to determine whether the
kilometrage, same is made for a valid purpose. No prisoner
attendance fee and Does not need tender sentenced to death, reclusion perpetua or life
reasonable cost of of kilometrage and imprisonment and who is confined in any penal
production fee. (Sec. 6, other fees. institution shall be brought outside the said penal
Rule 21, ROC, as institution for appearance or attendance in any
amended) court unless authorized by the SC. (Ibid.)
Form and contents of subpoena

When a party may apply for the issuance of
subpoena ad testificandum or duces tecum The subpoena shall be directed to the person whose
attendance is required. It shall state the following:
If the government employee or official, or the
requested witness, who is neither the (a) witness of 1. The name of the court;
the adverse party nor a (b) hostile witness: 2. The title of the action or investigation,
3. A reasonable description of the books,
1. Unjustifiably declines to execute a judicial documents or things demanded, in case of a
affidavit; or subpoena duces tecum. (Sec. 3, Rule 21, ROC, as
2. Refuses without just cause to make the relevant amended)
books, documents, or other things under his
control available for copying, authentication, Rule on subpoena for depositions
and eventual production in court.
Proof of service of notice to take a deposition, as
NOTE: The rules governing the issuance of a provided in Secs. 15 and 25, Rule 23, shall constitute
subpoena to the witness in this case shall be the sufficient authorization for the issuance of
same as when taking his deposition except that the subpoenas for the persons named in said notice by
taking of a judicial affidavit shall be understood to the clerk of the court of the place in which the
be ex parte. (Sec. 5, A.M. No. 12-8-8-SC O or the deposition is to be taken. The clerk shall not,
Judicial Affidavit Rule) however, issue a subpoena duces tecum to any such
person without an order of the court. (Sec. 5, Rule 21,
The subpoena may be issued by any of the ROC, as amended)
following:
Service of subpoena
1. The court before whom the witness is required
to attend; It shall be made in the same manner as personal or
2. The court of the place where the deposition is substituted service of summons.
to be taken;
3. The officer or body authorized by law to do so The original shall be exhibited and a copy thereof
in connection with investigations conducted by delivered to the person on whom it is served.
said officer or body; or
Costs for court attendance and production of
documents subject of the subpoena shall be

2022 GOLDEN NOTES
Remedial Law
tendered or charged accordingly. (Sec. 6, Rule 21, QUASHING OF SUBPOENA

ROC, as amended)
Grounds in Subpoena duces tecum:
Rationale for service of subpoena
Upon motion promptly made and, in any event, at or
The service must be made to allow the witness before the time specified therein:
reasonable time for preparation and travel to the
place of attendance. (Ibid.) 1. If it is unreasonable and oppressive;
2. The relevancy of the books, documents or
Personal appearance in court things does not appear;
3. If the person in whose behalf the subpoena is
A person present in court before a judicial officer issued fails to advance the reasonable cost of
may be required to testify as if he or she were in the production thereof (Sec. 4, Rule 21, ROC, as
attendance upon a subpoena issued by such court or amended;) or
officer. (Sec. 7, Rule 21, ROC, as amended) 4. That the witness fees and kilometrage allowed
by the Rules were not tendered when the
COMPELLING ATTENDANCE OF WITNESSES; subpoena was served.
CONTEMPT
Grounds in Subpoena ad testificandum:
Effect of failure to comply with subpoena
1. That the witness is not bound thereby; or
GR: The court or judge which issued the subpoena, 2. That the witness fees and kilometrage allowed
upon proof of the service thereof and of the failure by the Rules were not tendered when the
of the witness, may issue a warrant for the arrest of subpoena was served. (Sec. 4, Rule 21, ROC, as
the witness and require him or her to pay the cost of amended)
such warrant and seizure, if the court should
determine that his disobedience was willful and
without just cause. N. COMPUTATION OF TIME (RULE 22)
The refusal to obey a subpoena without adequate

cause shall be deemed contempt of the court issuing
Rule on computation of time
it. If the subpoena was not issued by a court,
disobedience thereto shall be punished in
The day of the act or the event from which the
accordance with the applicable law or Rule. (Secs. 8
designated period begins to run is to be excluded
and 9, Rule 21, ROC, as amended)
and the date of performance included. If the last day
falls on a Saturday, or a Sunday, or a legal holiday, in
XPNs:
the place where the court sits, the time shall not run
1. Viatory right – where the witness resides more
until the next working day.
than 100 kms. from his or her residence to the
place where he or she is to testify by the
The rule applies in computing any period
ordinary course of travel; or
prescribed or allowed by the Rules, or by order of
2. When the permission of the court in which the
the court or by any applicable statute. (Sec. 1, Rule
detention prisoner’s case is pending was not
obtained. (Sec. 10, Rule 21, ROC, as amended)
(2009 BAR)
Applicability of Article 13 of the Civil Code
When the law speaks of years, months, days or

nights, it shall be understood that years are of three

Civil Procedure
hundred sixty-five (365) days; days of twenty-four Reckoning of 15-day extension

(24) hours; and nights from sunsets to sunrise.
It should be tacked on the original period and
If months are designated by names, they shall be commence immediately after the expiration of such
computed by the number of days which they period.
respectively have.
NOTE: Any extension of time to file the required
In computing a period, the first day shall be pleading should be counted from the expiration of
excluded and the last day included. the period regardless of the fact that the said due
date is a Saturday, Sunday, or legal holiday. (Luz v.
Pretermission of Holidays National Amnesty Commission, G.R. No. 159708, 24
Sept. 2004)
It is the rule which states that the exclusion of such
holidays in the computation of the period, whenever Calendar month
the first two rules of Section 1 are present.
It is a month designated in the calendar without
It does not apply to: regard to the number of days it may contain. It is the
period of time running from the beginning of a
1. Those provided in the contract; certain number of days up to, but not including, the
2. A specific date set for a court hearing or corresponding numbered day of the next month,
foreclosure of sale; and then up to and including the last day of that month.
3. Prescriptive period (not reglementary)
provided by the Revised Penal Code. Effect of interruption
Accordingly, in criminal cases the court cannot
lengthen the period fixed by law to prosecute Should an act be done which effectively interrupts
the offender. The waiver or loss of the right to the running of the period, the allowable period after
prosecute is automatic and by operation of law. such interruption shall start to run on the day after
Where the last day to file an information falls on the notice of the cessation of the cause thereof. (Sec.
a Sunday or legal holiday, the period cannot be 2, Rule 22, ROC, as amended)
extended up to the next working day since
prescription has already set in. The day of the act that caused the interruption shall
be excluded in the computation of the period.
It shall apply to:
The event referred to would include force majeure,
1. A pleading filed on the last day of the fortuitous events or calamities.
reglementary period but after office hours is
still considered as seasonably filed if duly
mailed; and
2. Period of redemption of real properties sold at
execution sale, thus, the redemption period is
actually 360 days.
Where the last day of doing any act required or

permitted by law falls on a Saturday, a Sunday or a
legal holiday in the place where the courts sits, the
time shall not run until the next working day.

2022 GOLDEN NOTES
Remedial Law
2. To obtain knowledge of material facts or

O. MODES OF DISCOVERY admissions from the adverse party through
written interrogatories;
3. To obtain admissions from the adverse party
regarding the genuineness of relevant
Discovery
documents or relevant matters of fact through
requests for admissions;
It is a device employed by a party to obtain
4. To inspect relevant documents or objects, and
information about relevant matters on the case
lands or other property in the possession and
from the adverse party in preparation for the trial.
control of the adverse party; and
(Riano, 2019)
5. To determine the physical or mental condition
of a party when such is in controversy. (Koh v.
NOTE: As contemplated by the Rules, the device
IAC, G.R. No. 71388, 23 Sept. 1986)
may be used by all the parties to the case. Rules of
Discovery also apply to special proceedings in
NOTE: The modes of discovery are designed to
accordance with Sec. 2 Rule 72. (2008 BAR) (Ibid.)
serve as an additional device aside from a pre-trial,
to narrow and clarify the basic issues between the
Purposes of the Rules of Discovery
parties, to ascertain the facts relative to the issues
and to enable the parties to obtain the fullest
1. To enable a party to obtain knowledge of
possible knowledge of the issues and facts before
material facts within the knowledge of the
civil trials and thus prevent the said trials to be
adverse party or of third parties through
carried on in the dark. It is intended to make certain
depositions;
that all issues necessary to the disposition of a case
are properly raised. (Tinio v. Manzano, G.R. No.
132102, 19 May, 1999)
MODES OF DISCOVERY
Upon ex parte motion of a party, the testimony of any person,
whether a party or not, may be taken by deposition upon oral
examination or written interrogatories. The attendance of witnesses
Deposition Pending Action
may be compelled by the use of a subpoena as provided in Rule 21.
(Rule 23)
Depositions shall be taken only in accordance with these Rules. The
deposition of a person confined in prison may be taken only by leave
of court on such terms as the court prescribes.
A person who desires to perpetuate his or her own testimony or that
Depositions before action or pending
of another person regarding any matter that may be cognizable in
appeal
any court of the Philippines, may file a verified petition in the court
(Rule 24)
of the place of the residence of any expected adverse party.
Upon ex parte motion, any party desiring to elicit material and
relevant facts from any adverse party shall file and serve upon the
Written interrogatories to adverse
latter written interrogatories to be answered by the party served or,
parties
if the party served is a public or private corporation or a partnership
(Rule 25)
or association, by any officer thereof competent to testify in its
behalf.
At any time after issues have been joined, a party may file and serve
Admission by adverse party upon any other party a written request for the admission by the
(Rule 26) latter of the genuineness of any material and relevant document or
of the truth of any material and relevant matter of fact.

Civil Procedure
Upon motion of any party showing good cause therefor, the court in
which an action is pending may order any party to produce and
Production or inspection of permit the inspection and copying of any designated documents or
documents or things order any party to permit entry upon designated land or other
(Rule 27) property in his possession or control for the purpose of inspecting
or photographing the property or any designated relevant object or
operation thereon. (2002, 2009 BAR)
In an action in which the mental or physical condition of a party is in
Physical and mental examination of
controversy, the court in which the action is pending may in its
persons.
discretion order him or her to submit to a physical or mental
(Rule 28)
examination by a physician. (2005 BAR)
1. DEPOSITIONS recruiters be taken by way of deposition by

written interrogatories?
Meaning of Depositon
A: YES. In People v. Sergio (G.R. No. 240053, 09 Oct.
A deposition is the taking of the testimony of any 2019), the Supreme Court permitted the taking of
person, whether he be a party or not, but at the the testimony of Mary Jane Veloso, who is presently
instance of a party to the action. This testimony is imprisoned in Indonesia, by way of deposition by
taken out of court. written interrogatories. Although the rule on
deposition by written interrogatories is inscribed
When available under Rule 23 of the Rules on Civil Procedure, it may
be applied suppletorily in criminal proceedings so
1. During a pending action (Rule 23) – deposition long as there is compelling reason.
de bene esse; or
2. Before action or Pending appeal (Rule 24) – Effect of substitution of parties
deposition in perpetuam rei memoriam
It does not affect the right to use depositions
DEPOSITIONS PENDING ACTIONS previously taken; and when an action has been
dismissed and another action involving the same
Rule on taking depositions pending actions subject is afterward brought between the same
parties or their representatives or successors-in-
Upon ex parte motion of a party, the testimony of interest, all depositions lawfully taken and duly filed
any person, whether a party or not, may be taken by in the former action may be used in the latter as if
deposition. The attendance of witnesses may be originally taken therefor. (Sec. 5, Rule 23, ROC, as
compelled using subpoena as provided in Rule 21. amended)
Deposition may either be upon: Effect of taking depositions
1. Oral examination; or A party shall not be deemed to make a person his or

2. Written interrogatories. her own witness for any purpose by taking his or
her deposition. (Sec. 7, Rule 23, ROC, as amended)
NOTE: The deposition of a person confined in
prison may be taken only by leave of court. (Sec. 1, Effect of using depositions
GR: The introduction in evidence of the deposition,
Q: May the testimony of a prosecution witness, or any part thereof, makes the deponent the witness
who is imprisoned in a foreign country due to of the party introducing the deposition. (Sec. 8, Rule
drug-trafficking charges, against her illegal 23, ROC, as amended)

2022 GOLDEN NOTES
Remedial Law
XPN: Introduction of deposition does not make the direct testimony. May the Court grant his Motion
deponent his or her witness: for Court Authorization to Take Deposition?
1. If the deposition is used for impeaching or A: YES. The taking of depositions has been allowed
contradicting the deponent (Sec. 8, Rule 23, ROC, as a departure from open-court testimony.
as amended); or Depositions may be taken at any time after the
2. If the adverse party uses the deposition of the institution of any action, whenever necessary or
other party (Sec. 4(b), Rule 23, ROC, as amended) convenient." There is no rule that limits deposition-
taking only to the period of pre-trial or before it; no
Rebutting a deposition prohibition against the taking of depositions after
pre-trial." There can be no valid objection to
At the trial or hearing, any party may rebut any allowing them during the process of executing final
relevant evidence contained in a deposition and executory judgments, when the material issues
whether introduced by him or her or by any other of fact have become numerous or complicated.
party. (Sec. 9, Rule 23, ROC, as amended)
In keeping with the principle of promoting the just,
Persons before whom deposition may be taken speedy and inexpensive disposition of every action
and proceeding, depositions are allowed as a
1. If within the Philippines "departure from the accepted and usual judicial
a. Any Judge; proceedings of examining witnesses in open court
b. Notary public (Sec. 10, Rule 23, ROC, as where their demeanor could be observed by the
amended); or trial judge." Depositions are allowed, provided they
c. Any person authorized to administer oaths, are taken in accordance with the provisions of the
as stipulated by the parties in writing (Sec. Rules of Court (that is, with leave of court if the
14, Rule 23, ROC, as amended) summons have been served, without leave of court
if an answer has been submitted); and provided,
2. If outside the Philippines further, that a circumstance for their admissibility
a. On notice, before a secretary of embassy or exists. (Santamaria v. Cleary, G.R. No. 197122, 15
legation, consul-general, consul, vice- June 2016)
consul, or consular agent of the Philippines
(Sec. 11, Rule 23, ROC, as amended); Issuance of commissions or letters rogatory
b. Before such person or officer as may be
appointed by commission or letters A commission or letters rogatory shall be issued
rogatory; or only when necessary or convenient, on application
c. Any person authorized to administer oaths, and notice, and on such terms and with such
as stipulated by the parties in writing (Sec. direction as are just and appropriate. (Sec. 12, Rule
14, Rule 23, ROC, as amended) 23, ROC, as amended)
Q: Thomas Cleary, an American citizen with Commission vs. Letters Rogatory

office address in California, filed a Complaint for
specific performance and damages against COMMISSION LETTERS ROGATORY
Miranila Land Development Corporation, An instrument issued An instrument sent in
Manuel S. Go, Ingrid Sala Santamaria, Astrid Sala by a court of justice or the name and by the
Boza, and Kathyrn Go-Perez before the RTC of other competent authority of a judge or
Cebu. Cleary moved for court authorization to tribunal, directed to a court of another,
take deposition. He prayed that his deposition magistrate by his requesting the latter to
be taken before the Consulate-General of the official designation or to cause to be examined,
Philippines in Los Angeles and be used as his an individual by name, upon interrogatories
authorizing him to take filed in a case pending

Civil Procedure
depositions of the before the former, a Stipulations regarding taking depositions

witness named therein witness who is within
the jurisdiction of the If the parties so stipulate in writing, depositions
judge or court to whom may be taken before any person authorized to
such letters are administer oaths, at any time or place (Sec. 14, Rule
addressed. (Dasmarinas 23, ROC, as amended). However, they may not
Garments, Inc. v. Reyes, stipulate as to the manner of taking depositions, as
et al, G.R. No.108229, 24 such should be in accordance with the Rules. (Feria
Aug. 1993) & Noche, 2013)
Directed to officials of Requests to foreign
the issuing jurisdiction tribunals Notice of deposition upon oral examination
The methods of
Taken in accordance procedure are under A party desiring to take the deposition of any person
with the rules laid down the control of foreign upon oral examination shall give reasonable notice
by the court issuing the tribunal. (Dulay v. in writing to every other party to the action. (Sec. 15,
commission Dulay, G.R. No. 158857, Rule 23, ROC, as amended)
11 Nov. 2005)
Contents of the notice
NOTE: Letters rogatory (letters request) may be
applied for and issued only after a commission has It shall state the time and place for taking the
been returned unexecuted. (Dasmarinas Garments, deposition and the name and address of each person
Inc. v. Reyes, et al, G.R. No. 108229, 24 Aug. 1993) to be examined, if known, and if the name is not
known, a general description sufficient to identify
Leave of court is not required when the deposition him or her or the particular class or group to which
is to be taken before a secretary of embassy or he or she belongs (Sec. 15, Rule 23, ROC, as
legation, consul general, consul, vice-consul or amended).
consular agent of the Republic of the Philippines
and the defendant’s answer has already been NOTE: On motion of any party upon whom the
served. However, if the deposition is to be taken in a notice is served, the court may for cause shown
foreign country where the Philippines has no enlarge or shorten the time. (Ibid.)
secretary of embassy or legation, consul general,
consul, vice-consul or consular agent, it may be Orders for the protection of parties and
taken only before such person or officer as may be deponents
appointed by commission or under letters rogatory.
(Dulay v. Dulay, G.R. No. 158857, 11 Nov. 2005) After notice is served for taking a deposition by oral
examination, upon motion seasonably made by any
Disqualifications of a deposition officer party or by the person to be examined and for good
cause shown, the court in which the action is
1. One who is related to the deponent within the pending may make any of the following orders for
6th degree of consanguinity or affinity; the protection of parties and deponents:
2. An employee or attorney of one of the parties;
3. One who is related to the attorney of the 1. That the deposition shall not be taken;
deponent within the same degree or employee 2. That it may be taken only at some designated
of such attorney; and place other than that stated in the notice;
4. One who is financially interested in the action 3. That it may be taken only on written
(Sec. 13, Rule 23, ROC, as amended) interrogatories;
4. That certain matters shall not be inquired into;

2022 GOLDEN NOTES
Remedial Law
5. That the scope of the examination shall be held Option of parties in lieu of participating in the
with no one present except the parties to the oral examination
action and their officers or counsel;
6. That after being sealed, the deposition shall be In lieu of participating in the oral examination,
opened only by order of the court; parties served with notice of taking a deposition
7. Those secret processes, developments, may transmit written interrogatories to the officers,
research need not be closed; who shall propound them to the witness and record
8. That the parties shall simultaneously file the answers verbatim. (Sec. 17, Rule 23, ROC, as
specified documents or information enclosed in amended)
sealed envelopes to be opened as directed by Submission of the deposition to the witness
the court; or
9. The court may make any other order which When the testimony is fully transcribed, the
justice requires to protect the party or witness deposition shall be submitted to the witness for
from annoyance, embarrassment, or examination and shall be read to or by him or her,
oppression. (Sec. 16, Rule 23, ROC, as amended) unless such examination and reading are waived by
the witness and by the parties. (Sec. 19, Rule 23, ROC,
Certain guidelines for oral depositions as amended)
1. The officer before whom the deposition is taken Changes in the deposition which the deponent
shall put the witness on oath; desire to make
2. The officer shall personally, or by someone
acting under his direction and in his presence, Any changes in form or substance which the
record the testimony of the witness; deponent desires to make shall be entered upon the
3. The testimony shall be taken stenographically deposition by the officer with a statement of the
unless the parties agree otherwise; reasons given by the witness for making them. (Sec.
4. All objections made at the time of the
examination as to the: Signing deposition
a. qualifications of the officer taking the GR: The deposition shall be signed by the witness.
deposition;
b. manner of taking it; XPNs:
c. conduct of any party; 1. Parties by stipulation waive the signing;
d. any other objection to the proceedings shall 2. Witness is ill;
be noted; 3. Witness cannot be found; or
4. Witness refuses to sign (Sec. 19, Rule 23, ROC, as
5. Evidence objected to shall be taken but subject amended)
to the objections.
NOTE: If the witness does not sign the deposition,
NOTE: A deposition officer has no authority to rule the officer shall sign it and state on the record the
on the objection. Evidence objected to shall be taken fact of the waiver or of the illness or absence of the
subject to the objection, which will be ruled upon by witness or the fact of refusal to sign together with
the court when the deposition is offered in evidence. the reason given therefor, if any, and the deposition
(Feria & Noche, 2013) may then be used as fully as though signed, unless
on a motion to suppress under Sec. 29(f), Rule 23,
the court holds that the reasons given for the refusal
to sign require rejection of the deposition in whole
or in part. (Sec. 19, Rule 23, ROC, as amended)

Civil Procedure
Deposition upon written interrogatories Contents of the petition
A party desiring to take the deposition of any person The petition shall be entitled in the name of the
upon written interrogatories shall serve them upon petitioner and shall show that:
every other party with a notice stating the name and
address of the person who is to answer them and 1. The petitioner expects to be a party to an action
the name or descriptive title and address of the in a court of the Philippines but is presently
officer before whom the deposition is to be taken. unable to bring it or cause it to be brought;
Within 10 calendar days thereafter, a party so 2. The subject matter of the expected action and
served may serve cross-interrogatories upon the his or her interest therein;
party proposing to take the deposition. Within 5 3. The facts which he or she desires to establish by
calendar days thereafter, the latter may serve re- the proposed testimony and his or her reasons
direct interrogatories upon a party who has served for desiring to perpetuate it;
cross-interrogatories. Within 3 calendar days after 4. The names or a description of the persons he or
being served with re-direct interrogatories, a party she expects will be adverse parties and their
may serve recross-interrogatories upon the party addresses so far as known; and
proposing to take the deposition. (Sec. 25, Rule 23, 5. The names and addresses of the persons to be
ROC, as amended) examined and the substance of the testimony
which he or she expects to elicit from each, and
NOTE: The duties of the officer under Secs. 17, 19, shall ask for an order authorizing the petitioner
20, 21 & 22 of Rule 23 shall also be followed on to take the depositions of the persons to be
deposition upon written interrogatories. (Secs. 26 examined named in the petition for the purpose
and 27, Rule 23, ROC, as amended) of perpetuating their testimony. (Sec. 2, Rule 24,
ROC, as amended)
After the service of the interrogatories and prior to
the taking of the testimony of the deponent, the Notices required before taking a deposition
court, on motion promptly made and for good cause before action
shown, may make:
The petitioner shall serve a notice upon each person
1. Any order specified in Sections 15, 16 and 18 of named in the petition as an expected adverse party,
Rule 23; together with a copy of the petition, stating that the
2. An order that the deposition shall not be taken petitioner will apply to the court, at a time and place
before the officer designated in the notice; or named therein, for the order described in the
3. An order that the deposition shall not be taken petition. At least twenty (20) calendar days before
except upon oral examination. (Sec. 28, Rule 23, the date of the hearing, the court shall cause notice
ROC, as amended) thereof to be served on the parties and prospective
deponents in the manner provided for service of
DEPOSITIONS BEFORE ACTION OR PENDING summons. (Sec. 3, Rule 24, ROC, as amended)
APPEAL
How to take a deposition pending appeal
How taken
The party who desires to perpetuate the testimony
Any person who wants to perpetuate his or her own may make a motion in the said court for leave to
testimony or that of another person regarding any take the depositions, upon the same notice and
matter that may be cognizable in any court of the service thereof as if the action was pending therein.
Philippines, may file a verified petition in the court
of the place of residence of any expected adverse
party. (Sec. 1, Rule 24, ROC, as amended)

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Remedial Law
The motion shall state: d. The party offering the deposition has been
unable to procure the attendance of the
1. The names and addresses of the persons to be witness by Subpoena; or
examined; e. Upon application and notice, that such
2. The substance of the testimony which he Exceptional circumstances exist as to make
expects to elicit from each; and it desirable in the interest of justice. (Sec. 4,
3. The reason for perpetuating their testimony Rule 23)
NOTE: If only part of a deposition is offered in
USES; SCOPE OF EXAMINATION evidence by a party, the adverse party may
require him or her to introduce all of it which is
Parties against whom deposition may be used relevant to the part introduced, and any party
may introduce any other parts. (Sec. 4, Rule 23,
Any part or all of the deposition, so far as admissible ROC, as amended)
under the rules of evidence, may be used against:
Use of deposition pending appeal
1. Any party who was present or represented at
the taking of the deposition; or Depositions are taken pending appeal with the view
2. One who had due notice of the deposition (Sec. to their being used in the event of further
4, Rule 23, ROC, as amended) proceeding in the court of origin or appellate court.
Examination and cross-examination of deponents
may proceed as permitted at the trial under Sections NOTE: If the court finds that the perpetuation of the
3 to 18 of Rule 132. (Sec. 3, Rule 23, ROC, as testimony is proper to avoid a failure or delay of
amended) justice, it may make an order allowing the
depositions to be taken, and thereupon the
Uses of depositions pending actions depositions may be taken and used in the same
manner and under the same conditions as are
1. Contradicting or impeaching the testimony of prescribed under Rule 23. (Sec. 7, Rule 24, ROC, as
the deponent as a witness; amended)
2. Any purpose by the adverse party where the
deponent is a party or who at the time of taking NOTE: The deposition taken under Rule 24 is
the deposition was an officer, director, or admissible in evidence in any action subsequently
managing agent of a public or private brought involving the same subject matter. (Sec. 6,
corporation, partnership, or association which Rule 24, ROC, as amended)
is a party; or
3. Any purpose by any party if the court finds that: Scope of the examination of the deponent
(D-R-U-S-E)
Unless otherwise ordered by the court as provided
a. The witness is Dead; by Sec. 16 or 18, Rule 23, the deponent may be
b. The witness Resides more than 100 kms. examined regarding any matter, not privileged,
from the place of trial or hearing or is out of which is relevant to the subject of the pending
the Philippines. Unless it appears that his action, whether relating to the claim or defense of
absence was procured by the party offering any other party, including the:
the deposition;
c. The witness is Unable to testify because of 1. Existence;
age, sickness, infirmity or imprisonment; 2. Description;
3. Nature;
4. Custody;

Civil Procedure
5. Condition; conduct of the parties and errors of any kind

6. Location of any books, documents, or other which might be obviated, removed, or cured if
tangible things; and promptly prosecuted, are waived unless
7. The identity and location of persons having reasonable objection thereto is made at the
knowledge of relevant facts. (Sec. 2, Rule 23, taking of the deposition;
ROC, as amended)
5. As to form of written interrogatories –
WHEN MAY OBJECTIONS Objections to the form of written
TO ADMISSIBILITY BE MADE interrogatories submitted under Secs. 25 and
26 are waived unless served in writing upon the
Objections to admissibility party propounding them within the time
allowed for serving succeeding cross or other
Subject to the provisions of Sec. 29, Rule 23, interrogatories and within 3 days after service
objection may be made at the trial or hearing to of the last interrogatories authorized;
receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of 6. As to manner of preparation – Errors and
the evidence if the witness were then present and irregularities in the manner in which the
testifying. (Sec. 6, Rule 23, ROC, as amended) testimony is transcribed or the deposition is
prepared, signed, certified, sealed, indorsed,
Effect of errors and irregularities in depositions transmitted, filed, or otherwise dealt with by
as stated under Sec. 29, Rule 23 the officer under Secs. 17, 19, 20 and 26 are
waived unless a motion to suppress the
1. As to notice – All errors and irregularities in the deposition or some part thereof is made with
notice for taking a deposition are waived unless reasonable promptness after such defect is, or
written objection is promptly served upon the with due diligence might have been,
party giving the notice; ascertained. (Sec. 29, Rule 23, ROC, as amended)
2. As to disqualification of officer – Objection to WHEN MAY TAKING OF DEPOSITION BE

taking a deposition because of disqualification TERMINATED OR ITS SCOPE LIMITED
of the officer before whom it is to be taken is
waived unless made before the taking of the Grounds for termination of deposition or
deposition begins or as soon thereafter as the limiting the scope of examination
disqualification becomes known or could be
discovered with reasonable diligence; The court in which the action is pending or the RTC
of the place where the deposition is being taken may
3. As to competency or relevancy of evidence – order the termination or limit the scope and manner
Objections to the competency of witness or the of the taking of the deposition at any time during the
competency, relevancy, or materiality of taking of the deposition, on motion or petition of
testimony are not waived by failure to make any party or of the deponent, and upon showing that
them before or during the taking of the the examination is conducted in:
deposition, unless the ground, of the objection
is one which might have been obviated or 1. Bad faith;
removed if presented at that time; 2. Such manner as unreasonably to annoy,
embarrass, or oppress the deponent party (Sec.
4. As to oral examination and other particulars 18, Rule 23, ROC, as amended); or
– Errors and irregularities occurring at the oral 3. When the constitutional privilege against self-
examination in the manner of taking the incrimination is invoked by deponent or his
deposition in the form of the questions or counsel.
answers, in the oath or affirmation, or in the

2022 GOLDEN NOTES
Remedial Law
NOTE: If the order made terminates the Interrogatories vs. Bill of particulars
examination, it shall be resumed thereafter only
upon the order of the court in which the action is BILL OF
INTERROGATORIES
pending. Upon demand of the objecting party or PARTICULARS
deponent, the taking of the deposition shall be Interrogatories to Designed to clarify
suspended for the time necessary to make a notice parties are not ambiguities in a
for an order. In granting or refusing such order, the directed to a particular pleading or to state
court may impose upon either party or upon the pleading. Instead, they with sufficient
witness the requirement to pay such costs or seek to disclose all definiteness
expenses as the court may deem reasonable. (Sec. material and relevant allegations in a
18, Rule 23, ROC, as amended) facts from a party. (Sec. pleading. It is therefore
1, Rule 25, ROC, as directed to a pleading.
Protection order vs. Motion to terminate or limit amended) (Sec. 1, Rule 12, ROC, as
examination amended)
A party may properly A party may properly
MOTION TO seek disclosure of seek disclosure only of
PROTECTION
TERMINATE OR LIMIT matters of proof which matters which define
ORDER (Sec. 16,
EXAMINATION may later be made a the issues and become
Rule 23)
(Sec. 18, Rule 23) part of the records of a part of the pleadings.
Provides protection evidence.
Provides protection
to the party or
during the taking of
witness before the NOTE: If a motion to a bill of particulars is denied, it
deposition.
taking of deposition. will not bar the party to avail of modes of discovery.
Motion or petition is
filed with the court in Q: Does an unsigned deposition have no force
The Motion is filed
which the action is and effect?
with the court in
pending or the RTC of
which the action is
the place where the A: A deposition not signed does not preclude its use
pending.
deposition is being during the trial. A deponent’s signature to the
taken. deposition is not in all events indispensable since
the presence of signature goes primarily to the form
2. INTERROGATORIES of deposition. (Ayala Land v. Tagle, G.R. No. 153667,
11 Aug. 2005)
WRITTEN INTERROGATORIES
TO ADVERSE PARTIES Depositions upon written interrogatories under
Sec. 25, Rule 23 vs. Interrogatories to parties
Purpose of interrogatories to parties under Rule 25
The framers of the new court rules intended that the DEPOSITIONS UPON
rules should provide ample facilities for discovery WRITTEN
INTERROGATORIES
of facts before trial so that surprise at the trial and INTERROGATORIES
TO PARTIES (Rule
possible miscarriage of justice might be avoided. A TO PARTIES (Sec. 25,
25)
purpose of this rule was to obtain admissions and Rule 23)
thus limit subjects of controversy at trial and avoid Deponent
unnecessary testimony and waste of time in Party or ordinary
Party only
preparation. (Feria & Noche, 2013) witness
Procedure
NOTE: The answers may now be used as judicial With intervention of No intervention.
admissions of the adverse party. (Ibid.) the officer authorized Written

Civil Procedure
by the Court to take interrogatories are NOTE: The party against whom it is directed may
deposition directed to the party make objections to the interrogatories. (Sec. 2, Rule
himself 25, ROC, as amended)
Not served upon the
adverse party directly. Served directly upon Objections to the interrogatories
They are instead the adverse party. (Sec.
delivered to the officer 1, Rule 25) Objections shall be presented to the court within ten
before whom the (10) calendar days after service of the
deposition is to be interrogatories. The filing of the objections shall
taken. (Sec. 26, Rule 23) have the effect of deferring the filing and service of
Scope the answer to the interrogatories. (Sec. 3, Rule 25,
Direct, cross, redirect, Only one set of ROC, as amended)
re-cross interrogatories
Interrogatories Necessity of leave of court before a party may be
15 days to answer served with written interrogatories
No fixed time unless extended or
reduced by the court It is necessary before answer has been served
Binding Effect because, at that time, the issues are not yet joined
Binding to anyone who and the disputed facts are not yet clear. However, it
Binding only to the is not necessary after answer has been served, for
is present during the
parties. the first set of interrogatories.
deposition.
Procedure in taking interrogatories Scope and use of interrogatories
The mode of discovery is availed of by a party, upon Interrogatories may relate to any matters that can
ex parte motion, by filing and serving upon the be inquired into under Sec. 2 of Rule 23, and the
adverse party written interrogatories to be answers may be used for the same purposes
answered by the party served. If the party is a provided in Sec. 4 of the same Rule. (Sec. 5, Rule 25,
juridical entity, it shall be answered by any of its ROC, as amended)
officers competent to testify in its behalf. (Sec. 1,
Rule 25, ROC, as amended) CONSEQUENCES OF REFUSAL TO ANSWER
NOTE: No party may, without leave of court, serve Modes of discovery affected
more than one set of interrogatories to be answered
by the same party. (Sec. 4, Rule 25, ROC, as amended) 1. A party or other deponent refuses to answer
any question upon oral examination; or
How to answer interrogatories 2. A party or witness refuses to answer deposition
upon written interrogatories under Section 23;
The interrogatories shall be answered fully in or
writing and shall be signed and sworn to by the 3. A party or witness refuses to answer written
person making them. The party upon whom the interrogatories under Section 25.
interrogatories have been served shall file and serve
a copy of the answers on the party submitting the Remedies
interrogatories within fifteen (15) calendar days
after service thereof, unless the court, on motion 1. The examination may be completed on other
and for good cause shown, extends or shortens the matters or adjourned as the proponent of the
time. (Sec. 2, Rule 25, ROC, as amended) question may prefer;
2. The proponent may thereafter apply to the
proper court of the place where the deposition

2022 GOLDEN NOTES
Remedial Law
is being taken, for an order to compel an 3. An order made under Rule 28 requiring him to
answer. submit to a physical or mental examination,
a. If the application is granted – the court The court may make such orders in regard to the
shall require the refusing party or refusal as are just, and among others the following:
deponent to answer the question or
interrogatory. 1. An order that the matters regarding which the
questions were asked, or the character or
b. If the court also finds that the refusal to description of the thing or land, or the contents
answer was without substantial of the paper, or the physical or mental condition
justification – it may require the refusing of the party, or any other designated facts shall
party or deponent or the counsel advising be taken to be established for the purposes of
the refusal, or both of them, to pay the the action in accordance with the claim of the
proponent the amount of the reasonable party obtaining the order;
expenses incurred in obtaining the order,
including attorney’s fees. 2. An order refusing to allow the disobedient
party to support or oppose designated claims or
c. If the application is denied and the court defenses or prohibiting him from introducing in
finds that it was filed without evidence designated documents or things or
substantial justification – the court may items of testimony, or from introducing
require the proponent or the counsel evidence of physical or mental condition;
advising the filing of the application, or
both of them, to pay to the refusing party or 3. An order striking out pleadings or parts thereof,
deponent the amount of the reasonable or staying further proceedings until the order is
expenses incurred in opposing the obeyed, or dismissing the action or proceeding
application, including the attorney’s fees. or any part thereof, or rendering a judgment by
(Sec. 1, Rule 29) default against the disobedient party;
Contempt of Court 4. In lieu of any of the foregoing orders or in

addition thereto, an order directing the arrest
If a party or other witness refuses to be sworn or of any party or agent of a party for disobeying
refuses to answer any question after being directed any of such orders except an order to submit to
to do so by the court of the place in which the a physical or mental examination. (Sec. 3, Rule
deposition is being taken, the refusal may be 29)
considered a contempt of that court. (Sec. 2, Rule 29)
EFFECT OF FAILURE TO SERVE WRITTEN
Other Consequences INTERROGATORIES
If any party or an officer or managing agent of a GR: A party not served with written interrogatories
party refuses to obey: may not be compelled by the adverse party to give
testimony in open court, or to give a deposition
1. An order made under Sec. 1 of Rule 29 requiring pending appeal.
him to answer designated questions; or
2. An order under Rule 27 to produce any XPN: When allowed by the court and there is good
document or other thing for inspection, cause shown and the same is necessary to prevent a
copying, or photographing or to permit it to be failure of justice. (Sec. 6, Rule 25, ROC, as amended)
done, or to permit entry upon land or other
property; or Q: Spouses XY filed a complaint for nullification
of mortgage and foreclosure against XYZ Bank

Civil Procedure
before the trial court. Spouses XY filed a Motion The answer to a request for admission properly
for Issuance of Subpoena Duces Tecum Ad served which was signed and sworn to by the
Testificandum to require XYZ Bank’s officers to counsel of the party so requested is sufficient
appear as Spouses XY’s initial witnesses during compliance with this rule, especially in the light of
a hearing for the presentation of their evidence- counsel’s authority under Secs. 21 and 23, Rule 138.
in-chief, and to bring the documents relative to (Nestle Philippines, Inc. v. CA, G.R. No. 102404, 01 Feb.
their loan with Metrobank, as well as those 2002)
covering the extrajudicial foreclosure and sale
of Spouses XY’s land. XYZ Bank opposed arguing When request for admission is made
that its officers may not be compelled to appear
and testify in court for the Spouses since they At any time after issues have been joined, a party
were not initially served with written may file and serve upon any other party a written
interrogatories. RTC denied the Motion for request for the admission by the latter. (Sec. 1, Rule
Issuance of Subpoena Duces Tecum Ad 26, ROC, as amended)
Testificandum ruling that XYZ Bank and its
officers are adverse parties who cannot be IMPLIED ADMISSION BY ADVERSE PARTY;
summoned to testify unless written CONSEQUENCES OF FAILURE TO ANSWER
interrogatories are first served upon them. Is REQUEST FOR ADMISSION
service of written interrogatories upon Bank’s
officers necessary before the latter can be GR: Each of the matters of which an admission is
subpoenaed? requested shall be deemed admitted.
A: YES. As a rule, in civil cases, the procedure of XPN: The request for admission must be served
calling the adverse party to the witness stand is not directly upon the party; otherwise, the party to
allowed, unless written interrogatories are first whom the request is directed cannot be deemed to
served upon the latter. The rule aims to prevent have admitted the genuineness of any relevant
fishing expeditions and needless delays; it is there document described in and exhibited with the
to maintain order and facilitate the conduct of trial. request or relevant matters of fact set forth therein
It will be presumed that a party who does not serve on account of failure to answer the request for
written interrogatories on the adverse party admission. (Briboneria v. CA, G.R. No. 101682, 14 Dec.
beforehand will most likely be unable to elicit facts 1992)
useful to its case if it later opts to call the adverse
party to the witness stand as its witness. (Spouses Period within which to answer request for
Afulugencia v. Metropolitan Bank, G.R. No. 185145, admission
05 Feb. 2014)
Under the Rules, each of the matters of which an
3. ADMISSION BY ADVERSE PARTY admission is requested shall be deemed admitted
unless within a period designated in the request
REQUEST FOR ADMISSION which shall not be less than 15 calendar days after
service thereof, or within such further time as the
Matters requested to be admitted by the adverse court may allow on motion, the party to whom the
party request is directed files and serves upon the party
requesting the admission a sworn statement either
1. Genuineness of any material and relevant denying specifically the matter of which an
document described in and exhibited with the admission is requested or setting forth in detail the
request; or reason why he or she cannot truthfully either admit
2. Truth of any material and relevant matter of or deny those matters. (Sec. 2, Rule 26, ROC, as
fact set forth in the request. (Sec. 1, Rule 26, ROC, amended)
as amended)

2022 GOLDEN NOTES
Remedial Law
NOTE: Objections to any request for admission shall 4. PRODUCTION OR INSPECTION

be submitted to the court by the party requested OF DOCUMENTS OR THINGS
within the period for and prior to the filing of his or
her sworn statement as contemplated in the Court order under this mode of discovery
preceding paragraph and his or her compliance
therewith shall be deferred until such objections are Upon motion of any party showing good cause
resolved, which resolution shall be made as early as therefor, the court in which an action is pending
practicable. (Ibid.) may order any party to:
EFFECT OF ADMISSION 1. Produce and permit the inspection and copying

or photographing, by or on behalf of the moving
Any admission made by a party pursuant to such party, or of any designated documents, papers,
request is for the purpose of the pending action only books, accounts, letters, photographs, objects
and shall not constitute an admission by him or her or tangible things, not privileged, which
for any other purpose nor may the same be used constitute or contain evidence material to any
against him or her in any other proceeding. (Sec. 3, matter involved in the action and which are in
Rule 26, ROC, as amended) his or her possession, custody or control; or
Objections to any request for admission 2. Permit entry upon designated land or other
property in his or her possession or control for
They shall be submitted to the court by the party the purpose of inspecting, measuring,
requested within the period for and prior to the surveying, or photographing the property or
filing of his s or her worn statement. The period for any designated relevant object or operation
compliance to the request for admission shall be thereon. (Sec. 1, Rule 27, ROC, as amended)
deferred until such objections are resolved, which
resolution shall be made as early as practicable. Limitations on the request for production or
(Sec. 2(b), Rule 26, ROC, as amended) inspection of documents or things
Withdrawal of admission 1. Should not be privileged;
The court may allow the party making the NOTE: On the ground of public policy, the rules
admission to withdraw or amend the admission providing for production and inspection of
upon such terms as may be just. (Sec. 4, Rule 26, ROC, books and papers do not authorize the
as amended) production or inspection of privileged matter;
that is books and papers which, because of their
EFFECT OF FAILURE TO FILE AND SERVE confidential and privileged character, could not
REQUEST FOR ADMISSION be received in evidence. (Riano, 2019)
Unless otherwise allowed by the court for good 2. Should constitute or contain evidence material
cause shown and to prevent a failure of justice a to any matter involved in the action and which
party who fails to file and serve a request for are in his (the party ordered) possession,
admission on the adverse party of material and custody, or control (Sec. 1, Rule 27, ROC, as
relevant facts at issue which are, or ought to be, amended); and
within the personal knowledge of the latter, shall
not be permitted to present evidence on such facts. 3. In the petition, the papers and documents to be
(Sec. 5, Rule 26, ROC, as amended) produced must be sufficiently described.

Civil Procedure
Production or inspection of documents or things 3. The motion must Designate the documents,
under Rule 27 vs. Subpoena duces tecum papers, books, accounts, letters, photographs,
objects or tangible things which the party
PRODUCTION OR wishes to be produced and inspected;
INSPECTION OF SUBPOENA DUCES 4. Such documents, etc., Constitute or Contain
DOCUMENTS OR TECUM evidence material to any matter involved in the
THINGS action;
Essentially a mode of Means of compelling 5. Such documents, etc., are not Privileged, and
discovery. production of 6. Such documents, etc., are in the Possession,
evidence. custody or control of the other party. (Solidbank
Limited to the parties It may be directed to vs. Gateway Electronics Corp., G.R. No. 164805,
to the action. (Sec. 1, any person whether a 30 April 2008).
Rule 27, ROC, as party or not.
amended) 5. PHYSICAL AND MENTAL EXAMINATION
Issued only upon Issued upon an ex OF PERSONS
motion with notice to parte application.
the adverse party. When available
NOTE: This mode of discovery does not authorize It may be ordered in an action in which the physical
the opposing party or the clerk of court or other or mental condition of a party is in controversy. (Sec.
functionaries of the court to distrain the articles or 1, Rule 28, ROC, as amended)
deprive the person who produced the same of their
possession, even temporarily. (Tanda v. Aldaya, G.R. Examples:
No. L-13423, 23 Nov. 1959)
1. An action for annulment of a contract where the
Procedure to avail of the production or ground relied upon is insanity;
inspection of documents or things 2. A petition for guardianship of a person alleged
to be insane; or
1. A motion must be filed by the party seeking the 3. An action to recover damages for personal
production or inspection of documents and injury where the issue is the extent of the
things and the motion must show good cause injuries of the plaintiff. (Riano, 2019)
supporting the same; and
2. The order shall specify the time, place and Procedure to avail physical and mental
manner of making the inspection and taking examination of persons
copies and photographs and may prescribe
such terms and conditions as are just. (Sec. 1, 1. A motion must be filed showing good cause for
Rule 27, ROC, as amended) the examination, with notice to the other
parties as well aside from the party to be
Requisites (FiMo-N-Des-C-P-P) examined (Sec. 2, Rule 28, ROC, as amended);
2. The motion shall specify the time, place,
The requisites in order that a party may compel the manner, conditions and scope of the
other party to produce or allow the inspection of examination and by the person/s by whom it is
documents or things, viz: made (Sec. 2, Rule 28, ROC, as amended);
3. The party examined may request the party
1. The party must File a Motion for the production causing the examination to be made to deliver
or inspection of documents or things, showing to him a copy of a detailed written report of the
good cause therefor; examining physician setting out his findings
2. Notice of the motion must be served to all other and conclusions (Sec. 3, Rule 28, ROC, as
parties of the case; amended); and

2022 GOLDEN NOTES
Remedial Law
4. The party causing the examination to be made 5. Dismiss the action or the proceeding;
shall be entitled upon request to receive from 6. Render a judgment by default against
the party examined a like report of any the disobedient party;
examination, previously or thereafter made, of 7. Refuse to allow the disobedient party to
the same mental or physical condition. (Sec. 3, support or oppose claims or defenses;
Rule 28, ROC, as amended) 8. Strike out all or any part of the pleading
of the disobedient party;
Effect if the party examined requests and 9. Stay further proceedings until order is
obtains a report on the results of the obeyed; or
examination 10. Order the arrest of the refusing party.
REFUSAL TO PRODUCE DOCUMENT OR
1. He has to furnish the other party a copy of the THING FOR INSPECTION, COPYING OR
report of any previous or subsequent PHOTOGRAPHING
examination of the same physical and mental 1. Designated facts shall be taken to be
condition (Sec. 3, Rule 28, ROC, as amended); established for the purposes of the
2. He waives any privilege he may have in that action in accordance with the claim of
action or any other involving the same the party obtaining the order;
controversy regarding the testimony of every 2. Refuse to allow the disobedient party to
other person who has so examined or may support or oppose claims or defenses;
thereafter examine him. (Sec. 4, Rule 28, ROC, as 3. Strike out all or any part of the pleading
amended) of the disobedient party;
4. Dismiss the action or the proceeding;
Effect of refusal to deliver the report 5. Render a judgment by default against
the disobedient party;
If a party refuses to deliver the report upon request 6. Stay further proceedings until order is
to the person causing the examination to be made, obeyed;
the court may require its delivery on such terms as 7. Render a judgment by default against
are just. the disobedient party; or
8. Order the arrest of the refusing party.
If the physician refuses or fails to make a report, the REFUSAL TO SUBMIT TO
court may exclude his testimony. (Sec. 3, Rule 28, PHYSICAL OR MENTAL EXAMINATION
ROC, as amended) 1. Designated facts shall be taken to be
established for the purposes of the
6. REFUSAL TO COMPLY action in accordance with the claim of
WITH MODES OF DISCOVERY the party obtaining the order;
2. Prohibit the disobedient party to
CONSEQUENCES OF REFUSAL TO COMPLY introduce evidence of physical and
WITH MODES OF DISCOVERY mental conditions;
REFUSAL TO ANSWER ANY QUESTION 3. Strike out all or any part of the pleading
UPON ORAL EXAMINATION of the disobedient party;
1. Order to compel an answer; 4. Dismiss the action or the proceeding;
2. Contempt; 5. Render a judgment by default against
3. Require payment of reasonable fees the disobedient party;
incurred by the proponent; 6. Stay further proceedings until order is
4. Designated facts shall be taken to be obeyed; or
established for the purposes of the 7. Render a judgment by default against
action in accordance with the claim of the disobedient party.
the party obtaining the order.

Civil Procedure
REFUSAL TO THE REQUEST FOR 4. Where the complaint has been dismissed with
ADMISSION BY ADVERSE PARTY prejudice (Sec. 5, Rule 16; Sec. 3, Rule 17; Sec. 5,
1. Require payment of reasonable fees Rule 7, ROC, as amended);
incurred by the proponent (Secs. 1-4, 5. Where the parties agree in writing, upon the
Rule 26); and facts involved in the litigation, and submit the
2. Each of the matters of which an case for judgment on the facts agreed upon,
admission is requested is deemed without the introduction of evidence. If,
admitted. (Sec. 5, Rule 26) however, there is no agreement as to all the
facts in the case, trial may be held only as to the
NOTE: The remedy of the party, in this case, is to disputed facts (Sec. 6, Rule 30, ROC, as
file a motion to be relieved of the consequences amended);
of the implied admission. The amendment of the 6. Where the civil case falls under the operation of
complaint per se cannot set aside the legal effects the Rules on Summary Procedure (Rule 17, ROC,
of the request for admission since its materiality as amended); and
has not been affected by the amendment. 7. When the case falls under the Rule on Small
Claims.
P. TRIAL Trial vs. Hearing
TRIAL HEARING
Not confined to trial and
It is a judicial process of investigating and
presentation of evidence
determining the legal controversies starting with
but embraces several
the production of evidence by the plaintiff and
stages of litigation,
ending with his closing arguments. Should there be Reception of
including pre-trial and
no amicable settlement or a compromise forged evidence and other
determination of granting
between the parties, the case will be set for trial. processes.
or denying a motion.
(Riano, 2019)
(Trocio v. Subido et al, G.R.
No.
Necessity of trial
L-23363, 31 May 1967)
Does not necessarily imply
GR: Trial is necessary when an issue exists. The period for the
presentation of evidence in
Decisions should not be made without trial. introduction of
open court but the parties
evidence by both
are afforded the
XPN: There is no need for trial in the following parties.
opportunity to be heard.
cases:
1. Where the pleadings of the parties tender no
Cases where the clerk of court gives preference
issue at all, a judgment on the pleadings may be
in scheduling of cases
directed by the court (Rule 34, ROC, as
amended);
In calendaring cases, the clerk of court shall give
2. Where from the pleadings, affidavits,
preference to:
depositions and other papers, there is actually
no genuine issue, the court may render a
1. Habeas corpus cases;
summary judgment (Rule 35, ROC, as amended);
2. Election cases;
3. Where the parties have entered into a
3. Special civil actions; and
compromise or an amicable settlement either
4. Those so required by law to be preferred (Sec.
during the pre-trial or while the trial is in
1, Rule 20)
progress (Rule 18; Art. 2028, NCC);

2022 GOLDEN NOTES
Remedial Law
SCHEDULE OF TRIAL decision to the parties, with or without memoranda.

The parties shall strictly observe the scheduled
hearings as agreed upon and set forth in the pre- ADJOURNMENTS AND POSTPONEMENTS
trial order.
The court may adjourn a trial from day to day, and
1. Initial presentation of plaintiff’s evidence – to any stated time, as the expeditious and
not more than thirty (30) calendar days after convenient transaction of business may require.
the termination of the pre-trial conference.
Within a period of three (3) months or ninety Limitations on the authority to adjourn
(90) calendar days, plaintiff shall be allowed to
present its evidence. This shall include the date The court has no power to adjourn a trial for a
if the judicial dispute resolution (JDR), if period longer than 1 month from each adjournment,
necessary. nor more than 3 months in all.
2. Initial presentation of defendant’s evidence XPN: When authorized in writing by the Court
– not later than thirty (30) calendar days after Administrator.
the court’s ruling on plaintiff’s formal offer of
evidence. NOTE: The party who caused the postponement is
warned that the presentation of its evidence must
Within a period of three (3) months or ninety still be terminated on the remaining dates
(90) calendar days, defendant shall be allowed previously agreed upon. (Sec. 2, Rule 30, ROC, as
to present its evidence. amended)
3. Presentation of evidence on the third REQUISITES OF MOTION TO POSTPONE TRIAL

(fourth, etc.)-party claim, counterclaim, or
cross-claim – determined by the court, the For Absence of Evidence
total which shall not exceed ninety (90)
calendar days. A motion to postpone trial for absence of evidence
has been deleted under the 2019 Revised Rules on
4. Presentation of the parties’ respective Civil Procedure.
rebuttal evidence – completed within a period
of thirty (30) calendar days. NOTE: Motion for postponement shall only be
allowed if it is based on acts of God, force majeure,
NOTE: The trial dates may be shortened depending or physical inability of the witness to appear and
on the number of witnesses to be presented; testify. (Sec. 12, Rule 15, ROC, as amended)
Provided, the presentation of evidence of all parties
shall be terminated within a period of ten (10) For Illness of Party or Counsel
months or three hundred (300) calendar days.
1. A motion for postponement must be filed;
If there are no third (fourth, etc.)-party claim, 2. The motion must be supported by an affidavit
counterclaim, or crossclaim, presentation of or sworn certification showing:
evidence shall be terminated within the period of six
(6) months or one hundred eighty (180) calendar a. The presence of the party or counsel at the
days. trial is indispensable; and
b. That the character of his or her illness is
Within a period not exceeding ninety (90) calendar such as to render his or her non-attendance
days from the submission of the case for resolution, excusable. (Sec. 3, Rule 30, ROC, as
the court shall decide and serve copies of its amended)

Civil Procedure
Q: Karen granted a loan to LJ for which the latter AGREED STATEMENT OF FACTS
issued a check as payment. However, said check
was dishonored for having been drawn against a Effect of agreement on statement of facts
closed account. With the loan still unpaid
despite several demands, Karen filed a case for The parties to any action may agree, in writing, upon
Estafa and violation of BP 22 against LJ. LJ filed a the facts involved in the litigation, and submit the
Demurrer to Evidence which was granted by the case for judgment on the facts agreed upon, without
MeTC. The MeTC ordered the presentation of the introduction of evidence.
LJ’s evidence. However, in the course of
proceedings, LJ repeatedly moved for several If the parties agree only on some facts in issue, the
postponements, which led the MeTC to issue its trial shall be held as to the disputed facts in such
Order declaring that LJ had waived her right to order as the court shall prescribe. (Sec. 7, Rule 30,
present evidence. Now, LJ contended that she 2019 Revised Rules on Civil Procedure)
has been prevented from testifying. Is LJ
correct? Stipulations of facts in civil cases vs. Stipulation
of facts in criminal cases
A: NO. The grant or denial of motion for
postponement is addressed to the sound discretion CIVIL CASES CRIMINAL CASES
of the court, which should always be predicated on May be signed by the Must be signed both by
the consideration that the ends of justice and counsel alone who has the counsel and the
fairness are served by the grant or denial of the a special power of accused.
motion. In considering motions for postponement, attorney.
two things must be borne in mind: (1) the reason for May be made verbally It must always be in
postponement and (2) the merits of the case of the or in writing. writing.
movant. Unless grave abuse of discretion is shown,
such discretion will not be interfered with either ORDER OF TRIAL; REVERSAL OF ORDER
mandamus or appeal. Because it is a matter of
privilege, not a right, a movant for postponement Order of Trial
should not assume beforehand that his motion will
be granted. In the absence of any clear and manifest Subject to the provisions of Sec. 2, Rule 31, and
grave abuse of discretion resulting in lack or in unless the court for special reasons otherwise
excess of jurisdiction, we cannot overturn the directs, the trial shall be limited to the issues stated
decision of the court a quo. (Hun Hyung Park v. Eung in the pre-trial order and shall proceed as follows:
Won Choi, G.R. No. 220826, 27 Mar. 2019, J. Caguioa)
Plaintiff shall adduce evidence in support of his

HEARING DAYS AND CALENDAR CALL
or her complaint.
The trial shall be held from Monday to Thursday,
and courts shall call the cases at exactly 8:30 A.M. ⬇
and 2:00 P.M., pursuant to Administrative Circular
No. 3-99. Hearing on motions shall be held on Defendant shall then adduce evidence in
Fridays, pursuant to Sec. 8, Rule 15. support of his or her defense, counterclaim,
crossclaim and third-party complaint.
All courts shall ensure the posting of their court
calendars outside their courtrooms at least one (1) ⬇
day before the scheduled hearings, pursuant to OCA
Circular No. 250-2015. (Sec. 4, Rule 30, ROC, as Third party defendant if any shall adduce
amended evidence of his or her defense, counterclaim,
crossclaim, and fourth-party complaint.

2022 GOLDEN NOTES
Remedial Law
ORAL OFFER OF EXHIBITS

⬇
The offer of evidence, the comment or objection
Fourth party, and so forth, if any, shall adduce thereto, and the court ruling shall be made orally in
evidence material facts pleaded by them. accordance with Secs. 34 to 40 of Rule 132. (Sec. 6,
⬇
Parties against whom any counterclaim or
Q. CONSOLIDATION OR SEVERANCE (RULE 31)
crossclaim has been pleaded, shall adduce
evidence in support of their defense, in the
order to be prescribed by the court.
Consolidation vs. Severance
⬇ CONSOLIDATION SEVERANCE
Parties may then respectively adduce rebutting Contemplates a single
evidence only, unless the court, for good reasons action having a
Involves several
and in the furtherance of justice, permits them number of claims,
actions having a
to adduce evidence upon their original case. counterclaims,
common question of
crossclaims, third-
law or fact which may
party complaints, or
NOTE: Additional evidence is allowed when it is be jointly tried. (Sec.1,
issues which may be
newly discovered, or where it has been omitted Rule 31)
separately tried. (Sec.
through inadvertence or mistake, or where the
2, Rule 31)
purpose of the evidence is to correct evidence
previously offered. (Republic v. Sandiganbayan
Consolidation
[Fourth Division], G.R. No. 152375, 16 Dec. 2011)
1. Actions involve a common question of law or

⬇ fact are pending before the court;
Upon admission of the evidence, the case shall 2. The court may order a joint hearing or trial of
be deemed submitted for decision, unless the any or all the matters in issue;
court directs the parties to argue or to submit 3. The court may order all the actions
their respective memoranda or any further consolidated and it may make orders
pleadings.
concerning proceedings as may tend to avoid
unnecessary costs or delay. (Sec. 1, Rule 31, ROC,
NOTE: If several defendants or third-party as amended)
defendants and so forth having separate defenses
appear by different counsel, the court shall Rationale on Consolidation
determine the relative order of presentation of their
evidence. (Sec. 5, Rule 30, ROC, as amended) Consolidation is a procedural device granted to the
court as an aid in deciding how cases in its docket
Reverse order of trial are to be tried so that the business of the court may
be dispatched expeditiously and with economy
Where the defendant, in his answer, relies upon an while providing justice to the parties. (Romulo Neri
affirmative defense, a reverse order of trial shall take v. Sandiganbayan (Fifth Division, G.R. No. 202243, 08
place. Since the defendant admits the plaintiff’s May 2009)
claim but seeks to avoid liability based on his
affirmative defense, he shall proceed first to prove
his exemption. (Yu v. Mapayo, G.R. No. L-29742, 29
Mar. 1972)

Civil Procedure
Kinds of consolidation of cases performance to enforce the option to purchase

the parcel of land subject of the ejectment case.
1. Quasi-consolidation - All, except one of What is the effect of Minda's action on Doris'
several actions are stayed until one is tried, in complaint? Explain. (2000 BAR)
which case the judgment in one trial is
conclusive as to the others. A: There is no effect. The ejectment case involves
possession de facto only. The action to enforce the
2. Actual consolidation - Several actions are option to purchase will not suspend the action of
combined into one. The cases lose their identity ejectment for non-payment of rentals. (Wilmon Auto
and become a single action in which a single Supply Corp. v. CA, G.R. No. 97637, 10 Apr. 1992)
judgment is rendered.
What and when to hold separate trials
3. Consolidation for trial - Several actions are
ordered to be tried together, but each retains its The court, in furtherance of convenience or to avoid
separate character and requires the entry of a prejudice, may order a separate trial of any claim,
separate judgment. crossclaim, counterclaim, or third-party complaint,
or of any separate issue or of any number of claims,
Rule on consolidation of cases cross-claims, counterclaims, third-party complaints
or issues. (Sec 2, Rule 31, ROC, as amended)
GR: Consolidation is discretionary upon the court
to avoid multiplicity of suits, guard against
oppression or abuse, prevent delay, clear congested R. DEMURRER TO EVIDENCE
dockets, and simplify the work of the trial court and
save unnecessary costs and expenses.
When to file demurrer to evidence

XPN: Consolidation becomes a matter of duty
when:
After the plaintiff has completed the presentation of
his or her evidence, the defendant may move for
1. Two or more cases are pending before the same
dismissal on the ground that upon the facts and the
judge; or
law the plaintiff has shown no right to relief. (Sec 1,
2. If cases are filed with the different branches of
the same RTC and one of such case has not been
partially tried. (Raymundo v. Felipe, G.R. No. L-
Nature of demurrer to evidence
30887, 24 Dec. 1971)
A demurrer to evidence is a motion to dismiss on the

Suspension of civil actions
ground of insufficiency of evidence and is presented
after the plaintiff rests his case. It is an objection by
1. If willingness to discuss a possible compromise
one of the parties in an action, to the effect that the
is expressed by one or both parties; or
evidence which his or her adversary produced is
2. If it appears that one of the parties, before the
insufficient in point of law, whether true or not, to
commencement of the action or proceeding,
make out a case or sustain the issue. The evidence
offered to discuss a possible compromise but
contemplated by the rule on demurrer is that which
the other party refused the offer. (Sec. 8, Rule 30,
pertains to the merits of the case. (Gonzales v.
ROC, as amended; Art. 2030, NCC)
Bugaay G.R. No. 173008, 22 Feb. 2012)
Q: Doris filed a complaint for ejectment in the

Q: ABS Co. is the operator of several buses. One
MTC on the ground of non-payment of rentals
of the buses owned by ABS Co. rammed upon a
against Minda. After 2 days, Minda filed in the
dump truck causing the instantaneous death of
RTC a complaint against Doris for specific
Nilo, one of the passengers of the ill-fated bus.

2022 GOLDEN NOTES
Remedial Law
Consequently, Nestor, son of Nilo, filed a respondents during the administration of the
complaint against ABS Co. for damages. After late President Marcos. After the filing of the
Nestor had rested his case, ABS Co. filed a parties’ responsive pleadings, trial on the merits
demurrer to evidence, contending that Nestor's ensued. Subsequently, upon the conclusion of its
evidence is insufficient because it did not show presentation of evidence, petitioner Republic
(1) that ABS Co. was negligent and (2) that such submitted its Formal Offer of Evidence.
negligence was the proximate cause of the Respondent Borja filed his Demurrer to
collision. Should the court grant or deny Evidence of even date. The SB found that the
defendant's demurrer to evidence? Reason evidence presented was insufficient to support a
briefly. (2004 BAR) claim for damages against De Borja, thereby
granting respondent De Borja’s Demurrer to
A: NO. The court should not grant defendant’s Evidence.
demurrer to evidence. Under the Rules of Court,
after the plaintiff has completed the presentation of A: A demurrer to evidence is a motion to dismiss on
his evidence, the defendant may move for dismissal the ground of insufficiency of evidence. It is a
on the ground that upon the facts and the law the remedy available to the defendant, to the effect that
plaintiff has shown no right to relief. Here, Nestor the evidence produced by the plaintiff is insufficient
has shown that he is entitled to the relief he is asking in point of law, whether true or not, to make out a
for. ABS Co. is a common carrier. Under Art.1756 of case or sustain an issue. The question in a demurrer
the Civil Code, in case of death of or injuries to to evidence is whether the plaintiff, by his evidence
passengers, common carriers are presumed to have in chief, had been able to establish a prima facie
been at fault or to have acted negligently, unless case. In a demurrer to evidence, however, it is
they prove that they observed extraordinary premature to speak of “preponderance of evidence”
diligence. Proof that the defendant was negligent because it is filed prior to the defendant’s
and that such negligence was the proximate cause of presentation of evidence. Hence, what is crucial is
the collision is not required. Thus, without proof the determination as to whether the plaintiff’s
that ABS Co. has exercised extraordinary diligence, evidence entitles it to the relief sought. (Republic v.
the presumption of negligence stands. De Borja, G.R. No. 187448, 09 Jan. 2017, J. Caguioa)
GROUND FOR DEMURRER TO EVIDENCE EFFECT OF DENIAL
The only ground for demurrer to evidence is upon 1. The defendant shall have the right to present
showing that upon the facts and the law, the plaintiff his or her evidence. (Sec. 1, Rule 33, ROC, as
has shown no right to relief. (Sec. 1, Rule 33, ROC, as amended) This means that the denial of the
amended) demurrer to evidence does not deprive the
defendant the opportunity to adduce evidence
Q: Philippine National Oil Company would in his behalf;
regularly enter into charter agreements with 2. The court shall set the date for the reception of
vessels and vessel owners would pay “address the defendant’s evidence-in-chief. It should not
commissions” to PNOC as charterer. Allegedly, proceed to grant the relief demanded by the
during the tenure of Velasco, no address plaintiff (Northwest Airlines, Inc. v.CA, G.R. No.
commissions were remitted to PNOC. Velasco 112573, 09 Feb. 1995);
was likewise alleged to have diverted 3. An order denying a demurrer to evidence is not
government funds by entering into several appealable because it is interlocutory.
transactions and by reason of which he receives
bribes, kickbacks or commissions. A Complaint
was filed by petitioner republic before the SB
(Civil Case) for the recovery of ill-gotten assets
allegedly amassed by the individual

Civil Procedure
Denial of a demurrer to evidence in an election which it is based), will

case not apply.
A party who files a demurrer to evidence that is Action on demurrer to evidence

subsequently denied in an election case cannot
insist on the right to present evidence. The A demurrer to evidence shall be subject to the
provision of the Rules governing demurrer to provisions of Rule 15.
evidence does not apply to an election case.
(Gementiza v. COMELEC G.R. No. 140884, 06 Mar. NOTE: Thus, a demurrer to evidence should be
2001) The Rules, under the express dictum in Sec. 4 served to the other party, who may oppose the
of Rule 1 “shall not apply to election cases, land same. Further, the court may call a hearing on
registration, cadastral, naturalization and the motion, if deemed necessary for its
insolvency proceeding.” (Riano, 2019) resolution.
EFFECT OF GRANT The order denying the demurrer to evidence shall

not be subject of an appeal or petition for certiorari,
The case shall be dismissed. prohibition or mandamus before judgment. (Sec. 2,
The plaintiff may file an appeal and if that appeal
was granted (reversed the order of dismissal); the DEMURRER TO EVIDENCE IN A CIVIL CASE vs.
defendant loses his right to present evidence. (Sec. DEMURRER TO EVIDENCE IN A CRIMINAL CASE
1, Rule 33, ROC, as amended; Republic v. Tuvera, G.R. (1991, 1996, 2001, 2003, 2007 BAR)
No. 148246, 16 Feb. 2007)
CIVIL CASE CRIMINAL CASE
NOTE: Upon appeal, the appellate court reversing How filed
the order granting the demurrer should not remand The court may dismiss
the case to the trial court. Instead, it should render After the plaintiff the action on the
judgment based on the evidence submitted by the has completed the ground of insufficiency
plaintiff. (Radiowealth Finance Corporation v. Del presentation of his or of evidence (1) On its
Rosario, G.R. No. 138739, 06 July 2000) her evidence, the own initiative after
defendant may move giving the prosecution
WAIVER OF RIGHT TO PRESENT EVIDENCE for dismissal on the the opportunity to be
ground that upon the heard or (2) Upon
If the demurrer is granted but on appeal the order facts and the law the demurrer to evidence
of dismissal is reversed, the defendant is deemed to plaintiff has shown no filed by the accused
have waived his or her right to present evidence. right to relief. (Sec. 1, with or without leave
(Sec.1, Rule 33, ROC, as amended) Rule 33) of court. (Sec. 23, Rule
119)
MOTION FOR Leave of court
MOTION FOR DEMURRER GRANTED With or Without (Sec.
DEMURRER DENIED BUT REVERSED ON Not required
23, Rule 119)
APPEAL
If granted
Denial is interlocutory, Order of the court is
The plaintiff cannot
hence, not appealable. adjudication on the
make an appeal from
Sec. 1, Rule 36 (that merits. Hence, the The plaintiff may
the order of dismissal
judgment should state requirement in Sec. 1, appeal from the order
due to the
clearly and distinctly Rule 36 should be of dismissal of the case.
constitutional
the facts and the law on complied with. (Sec. 1, Rule 33)
prohibition against
double jeopardy.

2022 GOLDEN NOTES
Remedial Law
If denied judgment is distinguished from an

The defendant may interlocutory order which does not finally
adduce his evidence terminate or dispose of the case. It has also the
The defendant may
only if the demurrer is effect of ending the litigation, and an aggrieved
proceed to adduce his
filed with leave of party may then appeal from the judgment; and
evidence.
court.
2. Judgment that is no longer appealable and is
If the plaintiff appeals from the order of already capable of being executed because
dismissal the period for appeal has elapsed without a
If plaintiff appeals and party having perfected an appeal, or it has
judgment is reversed If the court finds the already been resolved by a highest possible
by the appellate court, prosecution’s tribunal- In this sense, the judgment is
it will decide the case evidence insufficient, commonly referred to as one that is final and
on the basis of the it will grant the executory. (Riano, 2019)
plaintiff’s evidence demurrer by
with the consequence rendering judgment Action of Courts act upon facts and issues not
that the defendant acquitting the accused. pleaded by the parties
already loses his or her Judgment of acquittal
right to present is not appealable It is vital to keep in mind that in the process of
evidence. No res because double rendering judgment or in resolving controversies,
judicata in dismissal jeopardy sets in. courts can only consider facts and issued pleaded by
due to demurrer. the parties. Courts, as well as magistrates presiding
over them are not omniscient. They can only act on
the facts and issues presented before their own
S. JUDGMENTS AND FINAL ORDERS personal knowledge for evidence. Nor may they
take notice of matters except those expressly
provided as subjects of mandatory judicial notice.
(Social Justice Society v. Atienza, G.R. No. 156052, 13
Judgment
Feb. 2008)
It is the final ruling by a court of competent

Requisites of a valid judgment
jurisdiction regarding the rights or other matters
submitted to it in an action or proceeding.
1. The court or tribunal must be clothed with
(Macahilig v. Heirs of Garcia M. Magalit, G.R. No.
authority to hear and determine the matter
141423, 15 Nov. 2000)
before it;
2. The court must have jurisdiction over the
It is the court’s official and final consideration and
parties and the subject matter;
determination of the respective rights and
3. The parties must have been given an
obligations of the parties. (46 AM Jur 2d, Judgments
opportunity to adduce evidence in their behalf;
SS1)
4. The evidence must have been considered by the
tribunal in deciding the case;
NOTE: “Judgment” is normally synonymous with
5. The judgment must be in writing, personally
“decision.” (Tung Chin Hui v. Rodriguez, G.R. No.
and directly prepared by the judge; and
141938, 02 Apr. 2001)
NOTE: A verbal judgment is, in contemplation
Judgment may be understood in 2 senses:
of law, not in esse, therefore, ineffective. (Corpuz
v. Sandiganbayan, G.R. No. 162214, 11 Nov.
1. Judgment that disposes of a case in a manner
2004)
that leaves nothing more to be done by the
court in respect thereto- In this sense, a final

Civil Procedure
6. The judgment must clearly state the facts and Effect when the plaintiff moves for judgment on
the law on which it is based, signed by the judge the pleadings and defendant interposes no
and filed with the clerk of court. (Sec. 1, Rule 36) objection
NOTE: This requirement refers to decisions and The latter is deemed to have admitted the truth of
final orders on the merits not to those resolving the allegations of the complaint, so that there is no
incidental matters. (Pablo-Gualberto v. longer any necessity for the plaintiff to submit
Gualberto, G.R. No. 154994, 28 June 2005) evidence of his claims. (Phil. Advertising Counselors,
Inc. v. Revilla, G.R. No. L-31869, 08 Aug. 1973)
1. JUDGMENT ON THE PLEADINGS (RULE 34)
(2012, 2014, 2015, 2016 BAR) NOTE: A motion for judgment on the pleadings may
be filed only by the plaintiff or the claimant. (2016
Grounds for judgment on the pleadings (1999 BAR)
BAR)
Q: Sunbanun, owner of a residential house,
1. The answer fails to tender an issue because of: entered into a lease agreement with Go, which
a. General denial of the material allegations of the latter subleased. 3 months before the
the complaint; expiration of the lease agreement, Sunbanun,
b. Insufficient denial of the material alleging that Go violated the agreement because
allegations of the complaint; the latter subleases the premises, said that she
is terminating the lease. Thereafter, Go filed an
2. The answer admits material allegations of the action for damages against Sunbanun. At the
adverse party’s pleadings. (Sec. 1, Rule 34, ROC, pre-trial, Sunbanun moved for the case to be
as amended) submitted for judgment on the pleadings
considering that the only disagreement between
Instances when judgment on the pleadings is the parties was the correct interpretation of the
NOT applicable lease contract. Go did not object to the motion.
The trial court rendered judgment in favor of Go.
1. Actions for declaration of nullity of marriage, Is judgment on the pleadings proper?
annulment of marriage or for legal separation;
2. Unliquidated damages; A: YES. The trial court has the discretion to grant a
3. Insufficiency of fact – amendment is the motion for judgment on the pleadings filed by a
remedy. party if there is no controverted matter in the case
after the answer is filed.
Action on motion for judgment on the pleadings
The instant case is unusual because it was
The court may motu proprio or on motion render Sunbanun, and not the claimant Go, who moved for
judgment on the pleadings if it is apparent that the a judgment on the pleadings during the pre-trial.
answer fails to tender an issue, or otherwise admits Sunbanun, in moving for a judgment on the
the material allegations of the adverse party’s pleadings without offering proof as to the truth of
pleadings. Otherwise, the motion shall be subject to her own allegations and without giving Go the
the provisions of Rule 15 of these Rules. opportunity to introduce evidence, is deemed to
have admitted the material and relevant averments
Any action of the court on a motion for judgment on of the complaint, and to rest her motion for
the pleadings shall not be subject of an appeal or judgment based on the pleadings of the parties.
petition for certiorari, prohibition or mandamus. (Sunbanun v. Go, G.R. No. 163280, 02 Feb. 2010)
NOTE: A motion for judgment on the pleadings is
the appropriate remedy where the defendant is

2022 GOLDEN NOTES
Remedial Law
deemed to have admitted the matters contained in Feliciano Loy, Jr., et al. v. San Miguel Corporation
the Request for Admission by the plaintiff. The Employees Union-Philippine Transport and General
failure of the defendant to answer a request for Workers Organization, et al., G.R. No. 164886, 24 Nov.
admission results in an implied admission of all the 2009)
matters which an admission is requested. (Rule 34
in connection with Sec. 2, Rule 26, ROC, as amended) NOTE: A claimant may at any time after the pleading
(2012 BAR) in answer thereto has been served, and the
defendant may, at any time, move with supporting
Judgment on the pleadings vs. Judgment by affidavits, depositions or admissions for a summary
default judgment in his favor upon all or any part thereof.
(Secs. 1 and 2, Rule 35)
JUDGMENT ON THE JUDGMENT BY
PLEADINGS DEFAULT Genuine issue on any material facts
The defendant
answered but did not An issue of material fact exists if the answer or
tender an issue or The defendant did not responsive pleading filed specifically denies the
admitted the material file an answer. material allegations of fact set forth in the complaint
allegations in the or pleading. If the issue of fact requires the
complaint. presentation of evidence, it is a genuine issue of fact.
Evidence is not (Ibid.)
received as the same is
Evidence is received.
based on the pleadings Fictitious or Sham Issue
alone.
Decision is based on Decision is based on Trial may be dispensed with and a summary
the allegations in the the evidence judgment rendered if the case can be resolved
pleadings. presented. judiciously by plain resort to the pleadings,
Generally available affidavits, depositions, and other papers filed by the
only to the plaintiff, parties. (Olivarez Realty v. Castillo, G.R. No. 196251,
unless the defendant Available to plaintiff. 09 July 2014)
presents a
counterclaim. Requisites of Summary Judgment (2015 BAR)
2. SUMMARY JUDGMENTS (RULE 35)
1. The motion shall cite the supporting affidavits,
When proper depositions or admissions, and the specific law
relied upon.
It is proper where, upon motion filed after the issues
had been joined and on the basis of the pleadings NOTE: The adverse party may file a comment
and papers filed, the court finds that there is no and serve opposing affidavits, depositions, or
genuine issue as to any material fact except as to the admissions within a non-extendible period of
amount of damages. (Ley Construction & Dev. Corp. five (5) calendar days from receipt of the
v. Union Bank of the Phil., G.R. No. 133801, 27 June motion. (Sec. 3, Rule 35, 2019 Amendments to the
2000) Rules on Civil Procedure)
Summary judgments are sanctioned by the Rules of Any action of the court on a motion for
Court as a device to simplify and expedite the summary judgment shall not be subject of an
resolution of cases when, as shown by pleadings, appeal or petition for certiorari, prohibition or
affidavits, depositions or admissions on the records, mandamus. (Ibid.)
there are no genuine issues which would entail an
expensive, lengthy and protracted trial. (Jose

Civil Procedure
2. The pleadings, supporting affidavits, judgment. Here, the trial court proceeded to render
depositions, and admissions show no genuine summary judgment with neither of the parties filing
issue as to any material fact, except for the a motion therefor. (Calubaquib, et al v. Republic, et
amount of damages; and al., G.R. No. 170658, 22 June 2011)
NOTE: The court may still order the conduct of Important features of Rule 35
a hearing.
1. There is no limitation as to the type of action in
3. The party presenting the motion for summary which the remedy is available (claim,
judgment must be entitled to a judgment as a counterclaim, cross claim, declaratory relief);
matter of law. 2. The remedy is available to both parties alike;
and
Q: The Republic filed a complaint for recovery of 3. The summary judgment procedure has been
possession against Calubaquib, et al., who coupled with deposition-discovery procedure
allegedly entered a military reservation site (Feria & Noche, 2013).
and, through strategy and stealth, took
possession of a five-hectare portion thereof. Q: Garcia, et al. filed a complaint for quieting of
Calubaquib, et al. then countered that their title with writ of preliminary injunction with the
predecessor-in-interest had been in open and RTC against Eland Philippines, Inc. The latter
continuous possession of the property since the found out that the lot was the subject of a land
early 1900s. While they acknowledge the registration proceeding that had already been
issuance of the Proclamation, they insist that the decided by the same court. Eland thus filed a
subject property is excluded from its operation, motion to dismiss. The motion was denied and
citing that the Proclamation itself said it was the trial court enjoined Eland to file its answer.
“subject to private rights”. On the basis of the Thereafter, Garcia, et.al. moved to declare Eland
foregoing admitted facts, the RTC rendered a in default which was granted and the former
summary judgment, even without the motion of were allowed to present evidence ex parte. After
either party. The RTC dismissed Calubaquib, et the many motions initiated by Eland were
al’s claim of possession of the property in the denied, Garcia, et al. moved for summary
concept of an owner. Was the summary judgment. The motion was granted and the trial
judgment proper? court decided in Garcia’s, et al. favor. Is
A. NO. The remedy of summary judgment without a summary judgment proper?
motion being filed is in derogation of a party's right
to a plenary trial of his case; the trial court cannot A: NO. Trial courts have limited authority to render
railroad the parties’ rights over their objections. A summary judgments and may do so only when there
summary judgment is permitted only if there is no is clearly no genuine issue as to any material fact.
genuine issue as to any material fact and the moving
party is entitled to a judgment as a matter of law. Eland is already the registered owner of the parcel
The filing of a motion and the conduct of a hearing of land in question, pursuant to a decree of
on the motion are important because these enable registration based on the ruling of the same court
the court to determine if the parties’ pleadings, that granted the summary judgment. By granting
affidavits and exhibits in support of, or against, the the summary judgment, the trial court has in effect
motion are sufficient to overcome the opposing annulled its former ruling based on a claim of
papers and adequately justify the finding that, as a possession and ownership of the same land for
matter of law, the claim is clearly meritorious or more than 30 years without the benefit of a full-
there is no defense to the action. The non- blown trial. The fact that Garcia, et al. seek to nullify
observance of the procedural requirements of filing the original certificate of title issued to Eland on the
a motion and conducting a hearing on the said claim that the former was in possession of the same
motion warrants the setting aside of the summary land for a number of years, is already a clear

2022 GOLDEN NOTES
Remedial Law
indicium that a genuine issue of a material fact WHEN THE CASE NOT FULLY ADJUDICATED
exists. (Eland Philippines, Inc. v. Azucena Garcia et
al., G.R. No. 173289, 17 Feb. 2010) Consequences when a case is not fully
adjudicated; Partial Summary Judgment (2004,
FOR THE CLAIMANT 2009 BAR)
A party seeking to recover upon a claim, If on motion, judgment is not rendered upon the
counterclaim, or crossclaim or to obtain a whole case or for all the reliefs sought and a trial is
declaratory relief may, at any time after the pleading necessary, the court may, by examining the
in answer thereto has been served, move with pleadings and the evidence before it and by
supporting affidavits, depositions or admissions for interrogating counsel, ascertain what material facts
a summary judgment in his or her favor upon all or exist without substantial controversy, including the
any part thereof. (Sec. 1, Rule 35, ROC, as amended) extent to which the amount of damages or other
relief is not in controversy, and direct such further
FOR THE DEFENDANT proceedings in the action as are just. The facts so
ascertained shall be deemed established, and the
A party against whom a claim, counterclaim or trial shall be conducted on the controverted facts
crossclaim is asserted or a declaratory relief is accordingly. (Sec. 4, Rule 35, ROC, as amended)
sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary NOTE: A partial summary judgment is not a final or
judgment in his or her favor as to all or any part appealable judgment. (Province of Pangasinan v. CA,
thereof. (Sec. 2, Rule 35, ROC, as amended) G.R. No. 104266, 31 Mar. 1993)
Bases of summary judgment Q: After Geoff has served and filed his answer to
John's complaint for damages, John served and
1. Affidavits made on personal knowledge; filed a motion for a summary judgment in his
2. Depositions of the adverse party or a third party favor upon all of his claims. Geoff served and
under Rule 23; filed his opposition to the motion. After due
3. Admissions of the adverse party under Rule 26; hearing, the court issued an order (1) stating
and that the court has found no genuine issue as to
4. Answers to interrogatories under Rule 25. All any material fact and thus concluded that John is
intended to show that: entitled to judgment in his favor as a matter of
law except as to the amount of damages
a. There is no genuine issue as to any material recoverable, and (2) accordingly ordering that
fact, except damages which must always be John shall have judgment summarily against
proved; and Geoff for such amount as may be found due John
b. The movant is entitled to a judgment as a for damages, to be ascertained by trial on
matter of law. October 7, 2004, at 8:30 in the morning. May
Geoff properly take an appeal from said order?
Burden of demonstrating the absence of genuine Or, may Geoff properly challenge said order thru
issue of fact a special civil action for certiorari? (2004 BAR)
The party who moves for summary judgment has A: NO. The plaintiff may not properly take an appeal
the burden of demonstrating clearly that the issue from said order because it is an interlocutory order,
posed in the complaint is patently unsubstantial so not a final and appealable order. It does not dispose
as not to constitute a genuine issue for trial. (Riano, of the action or proceeding. Partial summary
2019) judgments are interlocutory. There is still
something to be done, which is the trial for the
adjudication of damages, but the defendant may

Civil Procedure
properly challenge said order thru a special civil JUDGMENT ON THE PLEADINGS vs.
action for certiorari under Rule 65 on the ground of SUMMARY JUDGMENTS (2016 BAR)
abuse of discretion amounting to lack or excess of
jurisdiction. JUDGMENT ON THE
SUMMARY JUDGMENT
PLEADINGS
(Rule 35)
AFFIDAVITS AND ATTACHMENTS (Rule 34)
Based on the pleadings,
Based solely on the
Form depositions, admissions
pleadings.
and affidavits.
1. Supporting and opposing affidavits shall be Generally available
made on personal knowledge, only to the plaintiff,
Available to both
2. It shall set forth such facts as would be unless the defendant
plaintiff and defendant.
admissible in evidence, presents a
3. It shall show affirmatively that the affiant is counterclaim.
competent to testify to the matters stated There is no genuine
therein. The answer fails to
issue between the
4. Certified true copies of all papers or parts tender an issue or
parties, i.e., there may
thereof referred to in the affidavit shall be there is an admission
be issues but these are
attached thereto or served therewith. (Sec. 5, of material allegations.
irrelevant.
Rule 35, ROC, as amended) No notice to the adverse
party is required.
Affidavit in Bad Faith However, the adverse
party may file a
Should it appear to its satisfaction at any time that No notice to the comment and serve
any of the affidavits presented pursuant to the Rules adverse party is opposing affidavits,
are presented in bad faith, or solely for the required. depositions, or
purpose of delay. admissions within a
non-extendible period
Effect of affidavits in bad faith of five (5) calendar days
from receipt of motion.
The court: May be interlocutory
(i.e., partial summary
1. Shall forthwith order the offending party or On the merits.
judgments) or on the
counsel to pay to the other party the amount of merits.
reasonable expenses which the filing of the
affidavits caused him or her to incur, including NOTE: Even if the answer does not tender an issue,
attorney’s fees; and therefore a judgment on the pleadings is not
2. May, after hearing, further adjudge the proper, a summary judgment may still be rendered
offending party or counsel guilty of contempt. if the issues tendered are not genuine, are shams,
(Sec. 6, Rule 35, ROC, as amended) fictitious, contrived up, set-up in bad faith, patently
unsubstantial. (Vergara v. Suelto, G.R. No. L-74766,
21 Dec. 1987)
Q: In a petition for judicial separation of

property instituted by Teofilo against his
estranged wife Fe, Teofilo filed a Request for
Admission of the genuineness of the complaint,
answer and decision in a separate civil case
wherein the trial court ruled that the subject

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Remedial Law
property constituted conjugal property albeit denies the allegation in paragraphs 1 and 2 of
said decision is on appeal before the CA. As Fe the complaint, the truth being defendant did not
failed to file her answer or response, Teofilo execute any promissory note in favor of plaintiff,
filed a Motion for Judgment Based on the or 2) Defendant has paid the P1 million claimed
Pleadings which the trial court granted, treating in the promissory note (Annex "A" of the
the same as a move to seek summary judgment. Complaint) as evidenced by an"
Later, the CA ruled that the subject property Acknowledgment Receipt" duly executed by
constituted Fe’s paraphernal property. Is the plaintiff on January 30, 2015 in Manila with his
filing of the Motion for Judgment Based on the spouse signing as witness. A copy of the
Pleadings proper? "Acknowledgment Receipt" is attached as Annex
"1" hereof. Plaintiff filed a motion for judgment
A: NO. In a proper case for judgment on the on the pleadings on the ground that defendant's
pleadings, there is no ostensible issue at all because answer failed to tender an issue as the
of the failure of the defending party’s answer to allegations therein on his defenses are sham for
raise an issue. On the other hand, in the case of a being inconsistent; hence, no defense at all.
summary judgment, issues apparently exist-i.e., Defendant filed an opposition claiming his
facts are asserted in the complaint regarding which answer tendered an issue.
there is as yet no admission, disavowal or
qualification; or specific denials or affirmative a.) Is judgment on the pleadings proper?
defenses are in truth set out in the answer-but the Defendant filed a motion for summary judgment
issues thus arising from the pleadings are sham, on the ground that there are no longer any
fictitious or not genuine, as shown by affidavits, triable genuine issues of facts. b.) Should the
depositions, or admissions. Here, no valid resort can court grant defendant's motion for summary
be had to a motion for either judgment because the judgment? (2015 BAR)
decision of the trial court that the subject property
was conjugal was appealed to the CA. Until the A:
appeal is resolved by the CA, it would be premature a. NO. Under Section 2 of Rule 8, a party may set
to render judgment on Teofilo’s motion. Both the forth two or more statements of a defense
trial court and Teofilo may not preempt the appeal. alternatively or hypothetically. The Supreme
(Adolfo v. Adolfo, G.R. No. 201427, 18 Mar. 2015) Court has held that inconsistent defenses may
be pleaded alternatively or hypothetically
Q: Plaintiff sued defendant for collection of P1 provided that each defense is consistent with
million based on the latter's promissory note. itself. (Baclayon v. Court of Appeals, 26 Feb.
The complaint alleges, among others: 1) 1990) Hence Plaintiff’s contention that
Defendant borrowed P1 million from plaintiff as defendant’s answer failed to tender an issue as
evidenced by a duly executed promissory note. his defenses are sham for being inconsistent is
The promissory note reads: without merit.
"Makati, Philippines (Dec. 30, 2014) b. YES. The court should grant Defendant’s motion
For value received from plaintiff, defendant for summary judgment. Under Section 2 of Rule
promises to pay plaintiff P1 million, twelve (12) 35, a defendant may at any time, move with
months from the above indicated date without supporting admissions for a summary
necessity of demand. judgment in his favor. Here, the Plaintiff had
Signed impliedly admitted the genuineness and due
Defendant" execution of the acknowledgment receipt,
which was the basis of Defendant’s defense, by
A copy of the promissory note is attached as failing to specifically deny it under oath. Hence
Annex "A."Defendant, in his verified answer, the Defendant may move for a summary
alleged among others: 1) Defendant specifically judgment on the basis that Plaintiff had

Civil Procedure
admitted that Defendant had already paid the banc. (Benwaren v. COMELEC, G.R. No. 169393, 07
P1 million obligation. Apr. 2006)
3. RENDITION OF JUDGMENTS. AND ENTRY OF Preparation of a judgment (2004 BAR)

JUDGMENTS AND FINAL ORDERS (RULE 36)
A judgment or final order determining the merits of
Rendition of Judgment (2004 BAR) the case shall be in writing personally and directly
prepared by the judge, stating clearly and distinctly
Rendition of judgment is the filing of the same with the facts and the law on which it is based, signed by
the clerk of court. Even if the judgment has already him, and filed with the clerk of the court. (Sec. 1, Rule
been put in writing and signed, it is still subject to 36)
amendment if it has not yet been filed with the clerk
of court; and before its filing, it does not yet No requirement to state in its decision all the
constitute the real judgment of the court. (Ago v. CA, facts found in the records
G.R. No. L-17898, 31 Oct. 1962)
While it is required that decisions, no matter how
Promulgation concisely written, must distinctly and clearly set
forth the facts and the law upon which they are
It is the process by which a decision is published, based (Naguiat v. NLRC, G.R. No. 116123, 13 Mar.
officially announced, made known to the public or 1997), the rule however, does not require that the
delivered to the clerk of court for filing, coupled court shall state in its decision all the facts found in
with notice to the parties or their counsel. the records. (People v. Derpo, G.R. No. L-41040 &
43908-10, 14 Dec. 1988) A decision need not be a
NOTE: In civil cases, a judgment is rendered, while complete recital of the evidence presented. So long
in criminal cases and election cases, a judgment is as the factual and legal basis is distinctly and clearly
rendered and promulgated. set forth, the judgment is valid. (Chan v. CA, G.R. No.
159922, 28 Apr. 2005)
Q: In an election contest between Mr. Palma and
Mr. Monsod, the COMELEC en banc unanimously NOTE: A decision that does not clearly and
resolved the dispute in favor of Monsod. distinctly state the facts and the law on which it is
COMELEC Commissioner Garci participated at based leaves the parties in the dark as to how it was
the deliberation of the said resolution. However, reached and is especially prejudicial to the losing
when the resolution on the said dispute was party, who is unable to pinpoint the possible errors
promulgated by COMELEC en banc, of the court for review by a higher. (Miguel v. JCT
Commissioner Garci was no longer a member of Group, Inc., G.R. No. 157752, 16 Mar. 2005)
the COMELEC en banc. Mr. Palma contends that
the decision of the COMELEC en banc was null Rendition of a judgment based on issues not
and void because Commissioner Garci, who took raised
part in the resolution of the case, was no longer
connected with COMELEC. Is Mr. Palma correct? GR: A judgment must conform to the pleading and
the theory of the action under which the case was
A: NO. A decision becomes binding only after it is tried. A judgment going outside the issues and
validly promulgated. Consequently, if at the time of purporting to adjudicate something on which the
the promulgation of a decision or resolution, a parties were not heard is invalid. Therefore, where
member of the collegiate court who had earlier a court enters a judgment or awards relief beyond
signed or registered his vote has vacated his office, the prayer of the complaint or the scope of its
his vote is automatically withdrawn or cancelled. allegations the excessive relief is not merely
The Resolution, in this case, remains valid because irregular but is void for want of jurisdiction and is
it is still supported by a majority of the COMELEC en open to collateral attack.

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XPN: Such issues were tried with the express or presence of the parties or a draft thereof drawn up
implied consent of the parties. and signed and/or copy thereof somehow read or
acquired by any party.
Person to decide a case
The doctrine of law of the case
GR: A case once raffled to a branch belongs to that
branch unless re-raffled or otherwise transferred to The doctrine of law of the case simply means that
another branch in accordance with the established when an appellate court has once declared the law
procedure. When the Presiding Judge of that branch in a case, its declaration continues to be the law of
to which a case has been raffled or assigned is that case even on a subsequent appeal,
transferred to another station, he leaves behind all notwithstanding that the rule thus laid down may
the cases he tried with the branch to which they have been reversed in other cases. (DBP v. Guariña
belong. He does not take these cases with him even Agricultural and Realty Development Corporation,
if he tried them and the same were submitted to him G.R. No. 160758, 15 Jan. 2014)
for decision. The judge who takes over this branch
inherits all these cases and assumes full Law of the case has been defined as the opinion
responsibility for them. He may decide them as they delivered on a former appeal. More specifically, it
are his cases. means that whatever is once irrevocably
established as the controlling legal rule or decision
XPN: Any of the parties moves that his case be between the same parties in the same case continues
decided by the judge who substantially heard the to be the law of the case, whether correct on general
evidence and before whom the case was submitted principles or not, so long as the facts on which such
for decision. (Valentin v. Sta. Maria, G.R. No. L-30158, decision was predicated continue to be the facts of the
17 Jan. 1974) case before the court. (Mercury Group of Companies,
Inc. v. Home Development Mutual Fund, G.R. No.
NOTE: A decision penned by a judge after his 171438, 19 Dec. 2007)
retirement cannot be validly promulgated and
cannot acquire a binding effect. In like manner, a It is "merely a rule of procedure and does not go to
decision penned by a judge during his incumbency the power of the court and will not be adhered to
cannot be validly promulgated after his retirement. where its application will result in an unjust
(Nazareno v. CA, G.R. No. 111610, 27 Feb. 2002) decision. It relates entirely to questions of law and
is confined in its operation to subsequent
Judgment may be penned by a judge who did not proceedings in the same case. (Ibid.)
hear the evidence
NOTE: This rule does not apply to resolutions
It is not necessary that the judge who heard the rendered in connection with the case wherein no
evidence be the same judge who shall pen the rationale has been expounded on the merits of that
decision. The judge who originally tried the case action.
may die, resign, be disabled or transferred to
another. In such an eventuality, another judge has to Principle of stare decisis et non quieta movere
continue and finish the trial.
It holds that a point of law, once established by the
When decision is binding on the parties SC, will generally be followed by the same court and
by all courts of lower rank in subsequent cases
A judgment or order whether final or interlocutory involving a similar legal issue. This proceeds from
does not bind the parties until and unless notice the legal principle that, in the absence of powerful
thereof is duly served on them by any of the modes countervailing considerations, like cases ought to be
prescribed by law. This is so even if the order or decided alike.
judgment has in fact been orally pronounced in the

Civil Procedure
NOTE: It is founded on the necessity for securing 2. The filing of a petition for relief must be filed not
certainty and stability in the law and does not more than 60 days from knowledge of the
require identity of or privity of parties. judgment and not more than 6 months from the
entry of the judgment or final order. (Sec. 3, Rule
Interlocutory Order (2006 BAR) 38, ROC, as amended)
It is an order which decides some point or matter Finality of judgment

between the commencement and end of the suit but
is not the final decision on the whole controversy. It 1. Upon lapse of the reglementary period to
leaves something to be done by the court before the appeal, with no appeal perfected within such
case is finally decided on the merits. period, the decision becomes final and
executory (Sec. 1, Rule 39, Banco de Brasil v. CA,
Remedy to question an improvident G.R. Nos. 121576-78, 16 June 2000); and
interlocutory order 2. Upon lapse of the reglementary period to file an
MR, decision rendered by the SC becomes final
File a petition for certiorari under Rule 65 not under and executory.
Rule 45. A petition for review under Rule 45 is the
proper mode of redress to question only final Q: Spouses Zulueta mortgaged several lots to the
judgments. GSIS, which eventually foreclosed the
mortgaged properties. Dela Merced filed a
NOTE: One cannot appeal an interlocutory order. complaint praying for the nullity of foreclosure
proceeding on the ground that he, not the
ENTRY OF JUDGMENT AND FINAL ORDER Zuluetas, was the owner of these lots at the time
of the foreclosure. Dela Merced died in 1988 and
Entry of judgment (2000 BAR) was substituted by his heir. The court rendered
a decision in favor of Dela Merced who
It refers to the physical act performed by the clerk thereafter filed a motion for execution.
of court in entering the dispositive portion of the Meanwhile, GSIS had already conveyed these
judgment in the book of entries of judgment and lots to Dimaguila and Victorino. GSIS opines that
after the same has become final and executory. The the holders of the derivative titles (Dimaguila
record shall contain the dispositive portion of the and Victorino) are not bound by the judgment
judgment or final order and shall be signed by the against GSIS because these holders are
clerk of court, with a certificate by said clerk that the strangers to the action between GSIS and Dela
judgment has already become final and executor. Merced. While both titles contain notices of lis
(Sec. 2, Rule 36, ROC, as amended) pendens carried over from GSIS’s title, the
Register of Deeds claimed that the writ of
When entered: If no appeal or motion for new trial execution must first be modified to include the
or reconsideration is filed within the time provided cancellation of derivative titles of the GSIS title.
in the Rules, the judgment or final order shall Can the final and executory judgment against
forthwith be entered by the clerk in the book of GSIS be enforced against their successors-in-
entries of judgments. (Sec. 2, Rule 36, ROC, as interest or holders of derivative titles?
amended)
A: YES. A transferee pendente lite of registered land,
There are some proceedings the filing of which is whose title bears a notice of a pending litigation
reckoned from the date of the entry of judgment: involving his transferor’s title to the said land, is
bound by the outcome of the litigation, whether it be
1. The execution of a judgment by motion is within for or against his transferor. Given this principle, the
5 years from the entry of the judgment (Sec. 6, modification of the final decision against the
Rule 39, ROC, as amended); transferor in order to include the transferee

2022 GOLDEN NOTES
Remedial Law
pendente lite does not violate the doctrine of Being worthless in itself, all proceeding founded
immutability of final judgments. His inclusion does upon it are equally worthless. It neither binds nor
not add to or change the judgment; it is only a legal bars anyone. All acts performed under it and all
consequence of the established doctrine that a final claims flowing out of it are void.
judgment binds the privy of a litigating party. (Dela
Merced v. GSIS, G.R. No. 167140, 23 Nov. 2011) Q: Jayson, a career service officer, was illegally
dismissed from his position. Thus, Jayson filed a
Amended or clarified judgment vs. complaint for illegal dismissal with the Career
Supplemental decision Executive Service Board (CESB). While the said
complaint was pending before the CESB, Jayson
AMENDED OR SUPPLEMENTAL filed a petition for quo warranto with the CA
CLARIFIED DECISION praying that he be reinstated to his former post.
JUDGMENT The CESB rendered a decision finding that
It is an entirely new Jayson was illegally dismissed. The CA found
Does not take the place
decision and that Jayson resigned and was not illegally
of or extinguish the
supersedes the dismissed. Both decisions became final for
original judgment.
original judgment. failure to appeal the same. Are the two decisions
Court makes a immutable and unalterable in view of their
thorough study of the Serves to bolster or finality?
original judgment and add to the original
renders the amended judgment. (Solidbank A: NO. As a rule, a decision that has acquired finality
and clarified judgment Corporation v. CA, G.R. becomes immutable and unalterable. A final
only after considering No. 166581, December judgment may no longer be modified in any respect,
all the factual and legal 7, 7 Dec. 2015) even if the modification is meant to correct
issues. erroneous conclusions of fact and law; and whether
it be made by the court that rendered it or by the
Effect of amendment of judgment highest court in the land. In this case, however, to
hold that both decisions are immutable and
The date of the amendment should be considered as unalterable would cause confusion and uncertainty.
the date of the decision for the computation of the (Collantes v. CA, G.R. No. 169604, 06 Mar. 2007)
period to perfect the appeal.
Effect of a judgment or final order of a tribunal
Collateral attack on a judgment of a foreign country having jurisdiction to
render the judgment or final order (2007 BAR)
GR: The validity of a judgment or order of a court
cannot be collaterally attacked. 1. If the judgment is on a specific thing, the
judgment is conclusive upon the title to the
XPNs: It may be attacked collaterally on the thing; and
following grounds: 2. If the judgment is against a person, the
judgment is presumptive evidence of a right as
1. Lack of jurisdiction; or between the parties and their successor in
2. The irregularity of its entry is apparent interest by a subsequent title. (Sec. 48, Rule 39,
from the face of the record. ROC, as amended)
Effect of void judgments (Doctrine of Total Grounds in assailing the judgment or final order
Nullity) of a foreign country (2007 BAR)
A void judgment is in legal effect no judgment. By it 1. Evidence of want of jurisdiction;

no rights are divested, no rights can be obtained. 2. Want of notice to the party;

Civil Procedure
3. Collusion; b. Motion for New Trial; and

4. Fraud; or c. Appeal.
5. Clear mistake of fact or law 2. After the judgment becomes executory, the
aggrieved party or losing party may avail of the
POST-JUDGMENT REMEDIES following:
1. Before a judgment becomes final and executory, a. Petition for relief from judgment;
the aggrieved party or losing party may avail of b. Action to annul judgment;
the following remedies: c. Certiorari; and
a. Motion for Reconsideration; d. Collateral attack of a judgment.

2022 GOLDEN NOTES
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T. MOTION FOR NEW TRIAL OR RECONSIDERATION
1. RULE 37
GROUNDS; WHEN TO FILE
Motion for New Trial vs. Motion for Reconsideration
MOTION FOR NEW TRIAL (MNT) MOTION FOR RECONSIDERATION (MR)

Grounds
1. Extrinsic Fraud, Accident, Mistake or Excusable

negligence (F-A-M-E) which ordinary prudence could 1. The damages awarded are
not have guarded against and by reason of which the excessive;
rights of the aggrieved party were impaired; or 2. The evidence is insufficient to
2. Newly discovered evidence, which could not with satisfy the decision or final order; or
reasonable diligence, have been discovered and 3. The decision or final order is
produced at the trial, and which if presented, would contrary to law. (Sec. 1, Rule 37,
probably alter the result. (Sec. 1, Rule 37, ROC, as ROC, as amended)
amended)
Requisites
1. They shall be in writing, stating the ground or grounds
therefore, a written notice of which shall be served by
the movant on the adverse party (Sec. 2, Rule 37, ROC,
1. They shall be in writing, stating the
as amended);
ground or grounds therefore, a written
2. Affidavit of merit setting forth the particular facts
notice of which shall be served by the
claimed to constitute a meritorious cause of action in
movant on the adverse party (Sec. 2,
case the ground relied upon is (F-A-M-E);
3. In case of newly discovered evidence:
2. Must point out specifically the
a. Affidavit of new witness; and
conclusion of judgment;
b. Duly authenticated documents to be introduced
3. Express reference to testimonial or
documentary evidence or to provisions
NOTE: The requirements are mandatory and non-compliance
of law.
therewith is fatal and renders the motion pro forma or a mere
scrap of paper and will not toll the reglementary period for
appeal.
When to file
Within the period for taking an appeal or within 15 days after notice to the appellant of the judgment or final
order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a
record on appeal within 30 days after notice of the judgment or final order. (Sec. 1, Rule 37, ROC, as amended)
The filing of a timely motion interrupts the period to appeal. (Sec. 2, Rule 40; Sec. 3, Rule 41, ROC, as amended)
NOTE: No motion for extension of time to file a Motion for New Trial or Motion for Reconsideration shall be
allowed. (Sec. 2, Rule 40, ROC, as amended)

Civil Procedure
Limitations
GR: Single motion rule
No party shall be allowed a second motion
for reconsideration of a judgment or final
order. (Sec. 5, Rule 37, ROC, as amended)
XPN: The SC may allow a second MR in the

higher interest of justice by the Court en
banc upon a vote of at least 2/3 of its actual
membership. There is reconsideration “in
the higher interest of justice” when the
assailed decision is not only legally
erroneous, but is likewise patently unjust
Second motion may be allowed so long as based on grounds
and potentially capable of causing
not existing or available at the time the first motion was made.
unwarranted and irremediable injury or
damage to the parties.
A second motion for reconsideration can

only be entertained before the ruling sought
to be reconsidered becomes final by
operation of law or by the Court’s
declaration.
In the Division, a vote of three Members

shall be required to elevate a second motion
for reconsideration to the Court En Banc.
(Sec. 3, Rule 15, A.M. No. 10-4-20-SC)
When to file
If denied, the remedy is to appeal from the judgment or final order. (Sec. 9, Rule 37, ROC, as amended)
Resolution
Both must be resolved within 30 days from the time it is submitted for resolution
Rule under Summary Procedure and Small Claims

Both are prohibited motions under Summary Procedure and Small Claims
Motion for New Trial NOTE: This is one instance wherein the Court of
Appeals can act as a trial court. (2008 BAR)
It is a motion for the trial court to set aside the
judgment or final order and grant a new trial. Requisites of newly discovered evidence (Berry
(Riano, 2019) Rule)
1. The evidence was discovered after trial;
Procedure in New Trial 2. Such evidence could not have been
discovered and produced at the trial with
Unless the court otherwise directs, the procedure in reasonable diligence; and
the new trial shall be the same as that granted by a 3. Such evidence is material, not merely
Regional Trial Court. cumulative, corroborative or impeaching,
and is of such weight that if admitted would
probably change the judgment. (CIR v. A.

2022 GOLDEN NOTES
Remedial Law
Soriano Corporation, G.R. No. 113703, 31 and Rule 121 in sound discretion of the
Jan. 1997) criminal cases. court, the exercise of
such shall not be
NOTE: These requisites originated in the case of reviewable on appeal
Berry v. State of Georgia. UNLESS a clear abuse
thereof is shown.
Newly discovered evidence need NOT be newly
created evidence Motion for reconsideration (MR)
Newly discovered evidence need not be newly A motion for reconsideration under Rule 37 is one
created evidence. It may and does commonly refer that is directed against a judgment or a final order,
to evidence already in existence prior or during and not the motion for reconsideration of an
trial, but which could not have been secured and interlocutory order. (Riano, 2019)
presented during the trial despite reasonable
diligence on the part of the litigant. (Tumang v. CA, Purpose of an MR
G.R. No. 82072, 17 Apr. 1989)
The purpose of an MR is precisely to request the
Newly discovered evidence vs. Forgotten court or the quasi- judicial body to take a second
evidence look at its earlier judgment and correct any errors it
may have committed therein. (Reyes v. Pearl Bank
NEWLY DISCOVERED FORGOTTEN Securities, G.R. No. 171435, 30 July 2008)
EVIDENCE EVIDENCE
Evidence was already When partial reconsideration allowed
Evidence was not available to a party and
available to a party was not presented If the court finds that a motion affects the issues of
during a trial and was through inadvertence the case as to only a part, or less than all of the
discovered only or negligence of the matters in controversy, or only one, or less than all,
thereafter. counsel; it is not a of the parties to it, the order may grant a
ground for new trial. reconsideration as to such issues if severable
without interfering with the judgment or final order
Motion for New Trial vs. Motion for Reopening of upon the rest. (Sec. 7, Rule 37, ROC, as amended)
the Trial
Pro forma motion
MOTION FOR NEW MOTION FOR
TRIAL REOPENING OF A pro forma motion is one which does not satisfy the
TRIAL requirements of the rules and one which will be
The judge may act treated as a motion intended to delay the
A motion must be filed.
motu propio. proceedings. (Marikina Development Corporation v.
May properly be Flojo, G.R. No. 110801, 08 Dec. 1995)
presented only after
Proper only after either or both parties A pro forma motion for new trial shall not toll the
promulgation of have formally offered reglementary period of appeal. (Sec. 2, Rule 37, ROC,
judgment. and closed their as amended)
evidence before
judgment. Q: FACOMA, represented by its Directors Belara
Controlled by no other and Pagonzaga instituted an action for quieting
Based upon specific a title and recovery of ownership and
than the paramount
grounds mentioned in possession of a parcel of land, and damages
interest of justice,
Rule 37 in civil cases against respondents Heirs of Cabotaje and
resting entirely on the

Civil Procedure
Francisco Estrada. The RTC ruled in favor of the and is not a mere supplemental decision. (Esquivel
plaintiffs. Thereafter, the respondent Heirs of v. Alegre, G.R. No. 79425, 17 Apr. 1989)
Cabotaje filed notice of appeal and the RTC
deemed their motion for reconsideration as a Effect if the MNT is granted
pro forma motion, failing to toll the
reglementary period to file an appeal. However, If the motion for new trial is granted in accordance
the CA found that the Motion for with the provisions of the rules, the original
Reconsideration filed by respondent Heirs of judgment shall be vacated or set aside, and the
Cabotaje is not a pro forma motion. Hence, the action shall stand for trial de novo; but the recorded
Notice of Appeal filed by the latter was not filed evidence taken upon the former trial so far as the
out of time. Is the CA correct? same is material and competent to establish the
issues, shall be used at the new trial without
A: YES. A Motion for Reconsideration is not a pro retaking the same. (Sec. 6, Rule 37, ROC, as amended)
forma motion just because it reiterated arguments
earlier passed upon and rejected by the appellate Effect of an order reversing the grant of a new
court. A movant may raise the same arguments trial
precisely to convince the court that the ruling was
erroneous. The Court upholds the CA’s finding that Legally speaking, the effect of the order
respondents Heirs of Cabotaje’s Motion for withdrawing the grant of new trial is that the
Reconsideration on the RTC’s Decision is not a pro original judgment shall be deemed as having been
forma motion that prevented the tolling of the repromulgated. In other words, since the original
reglementary period to file an appeal. (Valencia judgment had already been vacated, the
(Bukidnon) Farmers’ Cooperative Marketing reconsideration of the grant of new trial does not in
Association, Inc. v. Heirs of Cabotaje, G.R. No. 219984, turn vacate the said grant, although the original
03 April 2019, J. Caguioa) judgment is given a new life. (Pineda v. CA, G.R. No.
L-38196, 22 July 1975)
DENIAL OF THE MOTION; EFFECT
2. REMEDY WHEN MOTION IS DENIED;
If a party wishes to challenge the denial of his or her FRESH 15-DAY PERIOD RULE
MNT or MR, he or she may include such denial in the
assignment of errors of the appeal from the Fresh Period Rule or Neypes Rule
judgment or final order. The order denying an MNT
or MR is not appealable, the remedy being an appeal To standardize the appeal periods provided in the
from the judgment or final order. (Sec. 9, Rule 37, Rules and to afford litigants fair opportunity to
ROC, as amended) The movant has a fresh period of appeal their cases, the Court deems it practical to
fifteen days from receipt or notice of the order allow a fresh period of 15 days within which to file
denying or dismissing the motion for the notice of appeal, counted from the receipt of the
reconsideration within which to file a notice of order dismissing a motion for new trial or motion
appeal. It is no longer assailable by certiorari. (Sec. for reconsideration. (Neypes v. CA, G.R. No. 141524,
9, Rule 37, as amended by A.M. No. 07-7-12-SC) 14 Sept. 2005)
GRANT OF THE MOTION; EFFECT Application of fresh period rule
Effect if a MR is granted It applies to:
The court may amend such judgment or final order 1. Rule 40 – MTC to RTC
accordingly. (Sec. 3, Rule 37, ROC, as amended) The 2. Rule 41 – Appeals from RTC
amended judgment is in the nature of a new 3. Rule 42 – Petition for Review from RTC to CA
judgment which supersedes the original judgment

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4. Rule 43 – Appeals from quasi-judicial agencies NOTE: Its purpose is to grant an opportunity for the
to CA court to correct any actual or perceived error
5. Rule 45 – Appeals by certiorari to the SC attributed to it by re-examination of the legal and
factual circumstances of the case.
Fresh period rule applies to criminal cases
XPNs:
Although Neypes involved the period to appeal in 1. Where the order is a patent nullity, as where the
civil cases, the Court’s pronouncement of a “fresh court a quo has no jurisdiction;
period” to appeal should equally apply to the period
for appeal in criminal cases under Section 6 of Rule 2. Where the questions raised in the certiorari
122 of the Revised Rules of Criminal Procedure. proceedings have been duly raised and passed
(Judith Yu v. Samson- Tatad, G.R. No. 170979, 09 Feb. upon by the lower court, or are the same as
2011) those raised and passed upon in the lower
court;
Fresh period rule does NOT apply to
administrative cases 3. Where there is an urgent necessity for the
resolution of the question and any further delay
It is settled that the fresh period rule in Neypes would prejudice the interests of the
applies only to judicial appeals and proceedings, not Government or of the petitioner or the subject
to administrative appeals and proceedings. matter of the action is perishable;
(Panolino v. Tajala, G.R. No. 183616, 29 June 2010;
San Lorenzo Ruiz Builders & Dev. Corp., Inc. v. 4. Where, under the circumstances, a motion for
Bayang, G.R. No. 194702, 20 Apr. 2015) reconsideration would be useless;
In the case wherein the court did not apply the 5. Where petitioner was deprived of due process
Neypes Rule to administrative decisions, the and there is extreme urgency for relief;
specific administrative rules of procedure
applicable in such cases precluded the application of 6. Where, in a criminal case, relief from an order
the Fresh Period Rule. (Puerto del Sol Palawan, Inc. of arrest is urgent and the granting of such relief
v. Gabaen, G.R. No. 212607, 27 Mar. 2019, J. Caguioa) by the trial court is improbable;
Retroactive application of the Fresh Period Rule 7. Where the proceedings in the lower court are a
nullity for lack of due process
The fresh period rule may be applied retroactively
to cases where the period for appeal had lapsed 8. Where the proceeding was ex parte or in which
prior to 14 September 2005 when Neypes was the petitioner had no opportunity to object; and
promulgated. Procedural laws may be given
retroactive effect to actions pending and 9. Where the issue raised is one purely of law or
undetermined at the time of their passage, there where public interest is involved. (Rep. of the
being no vested rights in the rules of procedure. (Fil- Phils. v. Bayao, G.R. No. 179492, 05 June 2013)
Estate Properties, Inc. v. Homena-Valencia, G.R. No.
173942, 25 June 2008)
MR as a requirement for filing a petition for

certiorari under Rule 65
GR: MR is a condition sine qua non for filing a

petition for certiorari under Rule 65.

Civil Procedure
end the Court’s task of adjudicating the parties’

U. EXECUTION, SATISFACTION AND contentions and determining their rights and
EFFECT OF JUDGMENTS (RULE 39) liabilities as regards each other, but obviously
indicates that other things remain to be done by the
Court, is “interlocutory.” (Heirs of Spouses Reterta v.
Spouses Lopez, G.R. No. 159941, 17 Aug. 2011)
Execution is a process provided by law for the
enforcement of a final judgment. It is the fruit and
Final judgments for purposes of appeal vs. Final
end of suit. A judgment that is left unexecuted is
judgments for purposes of execution
nothing but an empty victory for the prevailing part.
(Cagayan de Oro Coliseum v. CA, G.R. No. 129713, Dec.
FINAL JUDGMENTS FINAL JUDGMENTS
15, 1999; Ayo v. Violago-Isani, A.M. No. RTJ-99-1445,
FOR PURPOSES OF FOR PURPOSES OF
21 June 1999)
APPEAL EXECUTION
Dispose of, adjudicate, Becomes final and
DIFFERENCE BETWEEN FINALITY OF
or determine the executory by operation
JUDGMENT FOR PURPOSES OF APPEAL AND
rights of the parties. of law.
FOR PURPOSES OF EXECUTION
No further action can
be had when no appeal
Final Judgment
Still subject to appeal. was perfected until the
The term “final” is used in two senses depending on lapse of the period to
appeal
whether it is used on the issue of appeal ability or
on the issue of binding effect. (Regalado, 2017) Execution of judgment Execution of judgment
is not a matter of right. is a matter of right.
1. For the purposes of appeal – it refers to a
judgment that disposes of a case in a manner Part of the Judgment to be Executed
that leaves nothing more to be done by the
court in respect thereto. In this sense, a final 1. The dispositive portion (called “fallo”) of the
judgment is distinguished from an judgment is that part which is subject to
interlocutory order which does not finally execution under Rule 39 of the Rules of Court.
terminate or dispose of the case. (Rudecon 2. Jurisprudence considers this portion of the
Management Corp. v. Singson, G.R. No. 150798, judgment as that which finally vests rights upon
31 Mar. 2005) the parties, sets conditions for the exercise of
those rights, and imposes the corresponding
2. For the purposes of binding effect – the word duties and obligations. Hence, if there is a
“final” may refer to a judgment that is no longer conflict between the dispositive portion of the
appealable and is already capable of being decision and the body thereof, the dispositive
executed because the period for appeal has portion controls irrespective of what appears in
elapsed without a party having perfected an the body. (Globe Telecom, In. v. Florendo-Flores,
appeal or if there has been appeal, it has already G.R. No. 150092, 27 Sept. 2002)
been resolved by a highest possible tribunal.
(PCGG v. Sandiganbayan, G.R. Nos. 151809-12, 12 When Execution shall issue
Apr. 2005) In this sense, the judgment is
commonly referred to as one that is final and A final and executory judgment or order may be
executory. executed on motion within five (5) years from the
date of its entry. After the lapse of such time, and
NOTE: A final judgment or order is one that finally before it is barred by the stature of limitations, a
disposes of a case, leaving nothing more to be done judgment may be enforced by action. (Ting v. Heirs
by the Court in respect thereto. Conversely, an order of Diego Lirio, G.R. No. 16891, 14 Mar. 2007)
that does not finally dispose of the case and does not

2022 GOLDEN NOTES
Remedial Law
NOTE: No appeal may be taken from an order of Enterprises Corporation v. Court of Appeals, G.R. Nos.
execution. (Sec. 1(e), Rule 41) A party desiring to 121662-64, 06 July 1999)
assail an order of execution may instead file an
appropriate special civil action under Rule 65 of the Execution shall issue upon motion. Even in
Rules of Court. (Ibid.) judgments which are immediately executory, there
must be a motion to that effect and a hearing called
As a rule, parties are not allowed to object to the for that purpose. A decision which is immediately
execution of a final judgment. One exception is when executory does not mean dispensing with 3-day
the terms of the judgment are not clear enough and notice required by Sec. 10(c) of Rule 39 of ROC in
there remains room for interpretation. If the the implementation of a writ of execution. A sheriff
exception applies, the adverse party may seek the who enforces the writ without the required notice is
stay of execution or the quashal of the writ of running afoul with the rules. (Calaunan v.
execution. (Orix Metro Leasing and Finance Madolaria, A.M. No. P-10-2810, 08 Feb. 2011)
Corporation v. Cardline, Inc., G.R. No. 201417, 13 Jan.
2016) A motion for the issuance of a writ of execution shall
contain a notice to the adverse party. A motion
EXECUTION AS A MATTER OF RIGHT which does not contain a notice of hearing of the
time and place for the hearing of the motion, as
Execution will issue as a matter of right when: required by Secs. 4 and 5 of Rule 15 of the ROC (now
Sec. 6, Rule 15 of 2019 Amendments to the Rules on
1. The judgment has become final and executory Civil Procedure), is a worthless piece of paper which
(Sec. 1, Rule 39, ROC, as amended); the clerk has no right to receive and which the court
has no authority to act upon. (Pallada v. Regional
2. Judgment debtor has renounced or waived his Trial Court of Kalibo, Aklan, Br. 1, G.R. No. 129442, 10
right to appeal; Mar. 1999)
3. The period for appeal has lapsed without an Refusal of the Court to issue a writ of execution
appeal having been filed; or
GR: Execution of judgment is a matter of right on the
4. Having been filed, the appeal has been resolved part of the winning party. The court cannot refuse
and the records of the case have been returned execution.
to the court of origin. (Florendo v. Paramount
Insurance Corp, now MAA General Insurance Inc., XPNs:
G.R. No. 167976, 20 Jan. 2010) 1. When execution is sought more than five (5)
years from its entry without the judgment
How issued having been revived;
Once a judgment becomes final and executory, the 2. When the judgment has already been executed
prevailing party can have it executed as a matter of by the voluntary compliance thereof by the
right, and the issuance of a writ of execution parties (Cunanan v. CA, G.R. No. L-25511, 28 Sept.
becomes the ministerial duty of the court. (Buaya v. 1968);
Stronghold Insurance Co., Inc., G.R. No. 139020, 11
Oct. 2000) 3. When the judgment has been novated by the
parties (Dormitorio v. Fernandez, G.R. No. L-
NOTE: A judgment becomes "final and executory" 25897, 21 Aug. 1976);
by operation of law. Its finality becomes a fact when
the reglementary period to appeal lapses, and no NOTE: The parties, despite the existence of a
appeal is perfected within such period. (Viason judgment, are at liberty to novate a judgment by
entering into a compromise. A compromise is a

Civil Procedure
contract recognized by substantive law. (Art. compelling circumstances that justify immediate
2028, NCC) execution lest the judgment becomes illusory.
Circumstances must be superior, outweighing the
4. When a petition for relief is filed and a injury or damages that might result should the
preliminary injunction is granted in accordance losing party secure a reversal of the judgment.
with Sec. 5, Rule 38; (Florendo v. Paramount Insurance Corp., G.R. No.
167976, 20 Jan. 2010)
5. When the judgment sought to be executed is
conditional or incomplete (Cu Unjieng E Hijos v. The following are examples of good reasons that
Mabalacat Sugar Co., et al., G.R. No. L-32644, 04 would justify a discretionary execution:
Oct. 1930; Del Rosario v. Villegas, G.R. No. L-
25726, 22 Nov. 1926); 1. The proven insolvency of the debtors (Lao et al.
v. Mencias et al., G.R. No. L-23554, 25 Nov. 1967);
6. When facts and circumstances transpire which
would render execution inequitable or unjust 2. The purpose of preventing irreparable injury
(Bacharach Corp. v. CA, G.R. No. 128349, 25 Sept. (Fortune Guarantee and Insurance Corp. v. Court
1998); of Appeals, G.R. No. 110701, 12 March 2002);
7. When execution is sought against property 3. The fact that the goods subject of the judgments
exempt from execution under Sec. 13, Rule 39; will perish or deteriorate during the pendency
and of the appeal, a fact which would render the
judgment in favor of the prevailing party
8. On equitable grounds, as when there has been ineffective (Federation of United NAMARCO
change in the situation of the parties which Distributors, Inc. v. Court of Appeals, G.R. No. L-
makes execution inequitable. (Luna v. IAC, G.R. 17819, 31 Mar. 1962);
No. 68374, 18 June 1985)
4. The failure of an unlawful detainer case to make
Remedy if a Motion for Execution is denied the required periodic deposits to cover the
amount of rentals due under the contract or for
The remedy is mandamus. The issuance of writ of payment of the reasonable value of the use and
execution is a ministerial duty of court under Sec. 1 occupation of the premises, or the failure to
of Rule 39, compellable by writ of mandamus. post a supersedeas bond may be good reasons
(Greater Metropolitan Manila Solid Waste to allow execution pending appeal. (Sec. 19, Rule
Management Committee v. Jancom Environmental 70, ROC)
Corporation, G.R. No. 163663, 30 June 2006)
The following examples are NOT good reasons
DISCRETIONARY EXECUTION that would justify a discretionary execution:
It constitutes an exception to the rule that a 1. Where the sole reason given by the trial court in
judgment cannot be executed before the lapse of the allowing execution is that the appeal is frivolous
period for appeal or during the pendency of an and dilatory (International School, Inc. Manila v.
appeal. The execution of a judgment under this Court of Appeals, GR No. 131109, 29 June 1999);
concept is addressed to the discretionary power of
the court and cannot be insisted upon. Discretionary 2. the mere filing of a bond by the successful party
execution may only issue upon good reasons to be (Ibid.); and
stated in a special order after due hearing. (Sec. 2,
Rule 39, ROC, as amended) 3. The fact that the prevailing party is in financial
distress. (Intramuros Tennis Club, Inc. v.
NOTE: “Good reasons” have been held to consist of Philippine Tourism Authority, G.R. No. 135630,

2022 GOLDEN NOTES
Remedial Law
26 Sept. 2000) the RTC for compliance with maritime law,

regulation and contract, specific performance,
Requisites for discretionary execution and damages against Harbour Centre for its
failure to comply with the MOA. La Filipina
1. There must be a motion filed by the prevailing argued that Harbour Centre failed to dredge
party with notice to the adverse party; regularly and maintain the required depth of its
2. There must be a hearing of the motion for navigational channel and berthing area, which
discretionary execution; caused several of its vessels to touch bottom.
3. There must be good reasons to justify the The RTC found that due to Harbour Centre's
discretionary execution; and failure to regularly dredge, La Filipina's vessels
4. The good reasons must be stated in a special touched bottom. The trial court also ruled that
order. (Sec. 2, Rule 39, ROC, as amended) Harbour Centre overcharged La Filipina for the
port and cargo rates, as Harbour Centre did not
Instances when execution is discretionary follow the specified formula in the MOA for its
increase. The trial court also denied Harbour
1. Execution pending appeal; Centre's claim for rental fees. On November 2,
2011, Harbour Centre filed a notice of appeal
2. While trial court has jurisdiction over the case (Main Appeal). On November 9, 2011, La Filipina
and is in possession of either the original record filed a Motion for Partial Execution Pending
or record on appeal; Appeal. In any case, it showed willingness to put
up a bond to cover the amounts that Harbour
3. When trial court has lost jurisdiction but has Centre will be entitled should the Decision be
not transmitted records of the case to the reversed. The RTC granted La Filipina's Motion
appellate court; for Partial Execution Pending Appeal. On the
same day, the TC directed the Branch Clerk of
4. When trial court has lost jurisdiction and has Court to elevate the records to the CA pursuant
transmitted records (motion for execution to Harbour Centre's Notice of Appeal. A writ of
pending appeal with appellate court); and execution was issued. Pursuant to the writ of
execution, La Filipina then filed before the RTC a
5. Execution of several, separate or partial motion to authorize it to enter into a contract
judgment. (Florendo v. Paramount Insurance with a dredging contractor, which in turn was
Corp, now MAA General Insurance Inc., G.R. No. granted and became final and executory. La
167976, 20 Jan. 2010) Filipina entered into a contract for dredging
with FFFC Cruz. Thus, Harbour Centre filed a
Q: La Filipina Uygongco Corporation and Petition for Review on Certiorari before this
Philippine Foremost Milling Corporation Court. On December 3, 2015, respondent La
(collectively, La Filipina) are both engaged in Filipina filed a Motion to Dismiss Petition on the
the importation of various products. On the Ground of Forum Shopping, alleging that
other hand, Harbour Centre operates a port in petitioner willfully engaged in forum shopping
the Manila Harbour Centre. La Filipina and when it raised as an issue in the Main Appeal the
Harbour Centre executed a Memorandum of validity of the partial execution pending appeal,
Agreement (MOA) on berthing and dredging, as despite the pendency of this case. Petitioner
well as port and cargo handling charges. For pointed in its Appellant's Brief that the
dredging, the parties agreed that Harbour execution was not done in accordance with Rule
Centre shall regularly dredge the navigational 11 of Rule 39 of the Rules of Court. The issues in
channel and berthing area to maintain it at -11.5 this case are: (1) Whether or not the grant of the
meters Mean Lower Low Water (MLLW) at all motion for partial execution pending appeal was
times. Thereafter, several of La Filipina's vessels valid; and (2) Whether or not Harbour Centre
touched bottom. La Filipina filed a complaint in Port Terminal is guilty of forum shopping.

Civil Procedure
A: As to the first issue, and as to the validity of the execution is necessary not only to ensure that the
execution pending appeal, this Court partially judgement creditor would be able to enjoy the fruits
grants the Petition. The grant of the motion for of the trial court's decision, but also because there
partial execution pending appeal and the issued are good policy reasons such as fairness or public
writ of execution is valid as to the immediate benefit associated with the discretionary grant
dredging of the navigation channel and berthing pending appeal.
area of the Manila Harbour Centre to -11 .5 meters
MLLW. However, it is invalid as to the crediting of Second, the question for consideration is whether
the amounts paid to petitioner for port and cargo the immediate execution of a portion or all of the
handling charges and its release by the Office of the judgment is more equitable to the judgment
Clerk of Court to respondent. creditor or the public in general, as compared with
a final ruling on the appeal.
As a general rule, the execution of a judgment is
allowed only when it has been renounced or Given these parameters, the credit and release of
waived; (2) the period for appeal has lapsed without the amounts for port and cargo handling charges to
an appeal having been taken; or (3) the appeal has respondent should not have been allowed. Since this
been resolved and the records of the case have been matter is still being contested in the Main Appeal, it
returned to the court of origin. In these instances, cannot yet be said that the amounts are already
execution shall issue as a matter of right. fixed and definite. The amount due is still being
challenged.
However, an execution of a judgment or final order
may be allowed even before the expiration of the Furthermore, the bond that respondent is willing to
period to appeal under Rule 39, Section 2(a) of the post is not sufficient to be deemed as a good reason
Rules of Court. for the grant of execution pending appeal. Thus, the
amounts for port and cargo handling charges should
A motion for execution pending appeal may be filed not have yet been released to respondent. However,
before the Regional Trial Court while it still has this Court finds that the immediate execution of the
jurisdiction over the case and is still in possession of order to dredge is justified.
the original record or the record on appeal at the
time the motion is filed. As to the second issue, NO, petitioner Harbour
Centre Port Terminal is not guilty of forum
Here, the motion for execution pending appeal was shopping.
also filed within the period for filing an appeal,
while a motion for partial reconsideration was Respondent contends that petitioner willfully
pending, and the case records were not yet engaged in forum shopping when it raised as an
transmitted to the Court of Appeals. The records issue in the validity of the partial execution pending
were transmitted only after the motion for appeal in its Appellant's Brief in the Main Appeal,
execution pending appeal was granted. Thus, the despite the pendency of this case. However,
Regional Trial Court still had jurisdiction to hear the petitioner's Appellant's Brief only raised as an issue
motion. the manner by which the execution was done.
Petitioner points out that the execution was done in
Moreover, what is most essential for the grant of accordance with Section 10 of Rule 39, instead of
execution pending appeal is "the existence of good Section 11 of Rule 39. It did not question the
reasons." Jurisprudence has established guidelines granting of the Motion for Partial Execution by the
to determine what constitutes as a good reason for RTC per se. It questioned the manner by which the
the grant of execution pending appeal. execution was completed.
First, they come close, if not synonymous, to Here, the issue is the validity of the partial execution
equitable considerations. This can mean that pending appeal. On the other hand, the issue in the

2022 GOLDEN NOTES
Remedial Law
Main Appeal is the finding of liability against Where to file an application for discretionary
petitioner. Thus, there is no filing of multiple cases execution
based on the same cause of action asking for the
same prayer. Considering the issues raised in the 1. The motion for discretionary execution shall be
two cases are different, petitioner did not commit filed with the trial court:
forum shopping. (Harbour Centre Port Terminal, Inc.
vs. Hon. Lyliha L. Abella-Aquino, as Presiding Judge of a. While it has jurisdiction over the case; and
RTC Branch 24, Manila, La Filipina Uygongco b. While it is in possession of either the
Corporation, And Philippine Foremost Milling original record or the record on appeal; or
Corporation, G.R. No. 213080, 03 May 2021)
2. After the trial court has lost jurisdiction, the
Instances when judgment may issue before motion for execution pending appeal may be
judgment has become executory and before the filed in the appellate court. (Bangkok Republic
appeal was perfected Company Limited v. Lee, G.R. No. 159806, 20 Jan.
2006)
1. Where the lapse of time would make the
ultimate judgment ineffective, as where the NOTE: In either instance, and whether it is a regular
debtors were withdrawing their business and judgment or a special judgment such as several,
assets from the country; separate or partial judgment, the same procedure
and the requirement of a special order stating good
2. Where the appeal is clearly dilatory; reasons for discretionary execution shall be
observed. (Regalado, 2017)
3. Where the judgment is for support and the
beneficiary is in need thereof; Remedy when the judgment is reversed or
annulled
4. Where the articles subject of the case would
deteriorate; The trial court may, on motion, issue such orders of
restitution or reparation of damages as equity and
5. Where the defendants are exhausting their justice may warrant under the circumstances. (Sec.
income and have no other property aside from 5, Rule 39, ROC)
the proceeds of a property subject of the action;
NOTE: In Philippines Nails and Wire Corporation v.
6. Where the judgment debtor is in imminent Malayan Insurance Company, Inc. (G.R. No. 143933,
danger of insolvency or is actually insolvent; 14 Feb. 2003), the Supreme Court held that one
party may validly question a decision in a regular
7. Where the prevailing party is of advanced age appeal and at the same time assail the execution
and in a precarious state of health, and the pending appeal via certiorari without violating the
obligation in the judgment is non- rule against forum shopping. This is because the
transmissible; and merits of the case will not be addressed in the
Petition dealing with the execution and vice versa.
8. Where the case involved escrow deposits and The resolution or a favorable judgment in either will
the prevailing party posts sufficient bond to not amount to res judicata in the subsequent
answer for damages in case of reversal of the proceedings between the same parties.
judgment. (Regalado, 2017)
Q: In a complaint filed by Granger for rescission
and damages, the RTC ruled against JP Latex,
defendant. On Aug. 5, 2006, Granger moved for
the execution pending appeal of the decision.
Upon receipt of the decision, JP Latex filed an

Civil Procedure
MR. The RTC granted the execution “pending NOTE: The reasons allowing execution pending
appeal” without acting on the motion for appeal must constitute superior circumstances
reconsideration. Is the order of the trial court demanding urgency which will outweigh the injury
correct? or damage should the losing party secure a reversal
of the judgment on appeal. (Jaca v. Davao Lumber
A: NO. Discretionary execution is allowed only Company, G.R. No. L-25771, 29 Mar. 1982)
when the period to appeal has commenced but
before the trial court loses jurisdiction over the NOTE: Moral and exemplary damages may be the
case. The period to appeal where a motion for subject of an execution pending appeal if they are
reconsideration has been filed commences only NOT dependent on other type of damages and that
upon the receipt of the order disposing of the MR. there is a good reason to grant the execution
The pendency of a MR, therefore, prevents the pending appeal. However, if they are dependent
running of the period to appeal. upon the outcome of the case, they may not be
awarded. (2002 BAR)
The MR filed by JP Latex had not been acted upon by
the RTC before it ruled on the motion for execution Staying the discretionary execution
“pending appeal.” The pendency of the MR has
prevented the period to appeal from even It may be stayed upon approval by the proper court
commencing. The period within which a party may of a sufficient supersedeas bond filed by the party
move for an execution pending appeal of the RTC’s against whom execution is directed, conditioned
decision has not yet started. Thus, where there is upon the performance of the judgment or order
pending MR, an order of execution pending appeal allowed to be executed in case it shall be finally
is improper and premature. (JP Latex Technology, sustained in whole or in part. The bond thus given
Inc. v. Ballons Granger Balloons, Inc., et al., G.R. No. may be proceeded against on motion with notice to
177121, 16 Mar. 2009) the surety. (Sec. 3, Rule 39, ROC)

2022 GOLDEN NOTES
Remedial Law
HOW A JUDGMENT IS EXECUTED
Judgment is executed by motion within 5

years from date of its entry.
I
I I I
r
Execution is a matter Discretionary If the winning party does not
of right after execution upon good move for execution within 5
expiration of the reasons stated in a years but before 10 years
period to appeal and special order after due from the date of entry of
no appeal is perfected. hearing.
--------~
I
______
\...
I
_ judgment, the same can only
be revived by means of new
action / petition.
I
r Sheriff executes writ of execution. l
r
Losing party is made to indemnify thru:
Payment with interest;
Levy and sale of personal property;
Levy and sale of real property;
Delivery of personal and/or real property.

Civil Procedure
EXECUTION BY MOTION OR Motion is indispensable even if judgment is

BY INDEPENDENT ACTION immediately executory
Modes of execution of final and executory There must be a motion to that effect and a hearing
judgment or order and revived Judgment called for the purpose. (Lu v. Siapno, A.M. MTJ-99-
1199, 06 July 2000)
1. Execution by motion – if the enforcement of the
judgment is sought within five (5) years from Execution by motion after the lapse of 5 years
the date of its entry; (2007 BAR) and
GR: Execution of a judgment can no longer be
2. Execution by independent action – if the five effected by filing a motion, after 5 years. The remedy
(5) year period has elapsed and before it is would be to file an independent action for the
barred by statute of limitations which is 10 revival of the judgment. When a writ of execution is
years from the date entry under Art. 1144 (3) of issued by motion after 5 years from the date of entry
the New Civil Code. This action is a personal one of judgment, such motion is considered null and
and not quasi in rem. (Sec. 6, Rule 39, ROC, as void. (Tag Fibers, Inc. v. NLRC, G.R. No. 120931, Oct.
amended) 20, 2000; Terry v. People, G.R. No. 136203, 16 Sept.
1999)
NOTE: The date of finality of judgment or final order
shall be deemed to be the date of its entry. (No XPNs: However, the court in certain instances
longer based on the mechanical act of recording). allowed execution of the judgment by mere motion
(2000 BAR) despite the lapse of the 5-year period where:
However, if the judgment is based upon a 1. The delay in the execution of the judgment was
compromise which is immediately final and through causes attributable to the judgment
executory, prescription runs from the date of its debtor; or
rendition and not from date of entry. (Jacinto v. IAC,
G.R. No. 66478, 28 Aug. 1988) NOTE: Any interruption or delay occasioned by
the debtor will extend the time within which the
NOTE: Once a judgment becomes final and writ may be issued without scire facias
executory, the prevailing party can have it executed (Republic v. CA, G.R. No. L-43179, 27 June 1985).
as a matter of right, and the issuance of a Writ of
Execution becomes a ministerial duty of the court. It 2. When delay is incurred for his or her benefit;
is axiomatic that once a decision attains finality, it and
becomes the law of the case regardless of any claim
that it is erroneous. The judgment may no longer be 3. The period may also be interrupted by the
altered even at the risk of occasional legal agreement of the parties to suspend the
infirmities or errors it may contain. (Buaya v. enforcement of the judgment. (Macias v. Lim,
Stronghold Insurance Co., Inc., G.R. No. 139020, 11 G.R. No. 139284, 04 June 2004)
Oct. 2000)
Q: The decision of the Court of Appeals (CA)
Instances where the five- and ten-year periods became final on November 1, 1998. Thereafter,
do not apply a writ of demolition was issued by the trial court
pursuant to the CA’s decision. However, the CA’s
1. Special proceedings, e.g., land registration and decision was not executed due to multiple
cadastral cases; and petitions and motions filed by the respondents.
2. Judgments for support. On July 12, 2010, the Heirs of Piedad filed a
motion praying that an order be issued to
resume the unfinished writ of execution and/or

2022 GOLDEN NOTES
Remedial Law
writ of demolition. The motion was denied by Revival of judgment

the trial court. The trial court opined that since
more than 12 years had passed since the CA An action for revival of judgment is no more than a
decision became final and executory, the procedural means of securing the execution of a
execution should have been pursued through a previous judgment which has become dormant
petition for revival of judgment, not a mere after the passage of five (5) years without it being
motion. Should the motion of the heirs be denied executed upon motion of the prevailing party. It is
since more than 12 years had passed since the not intended to re-open any issue affecting the
CA decision became final and executory? merits of the judgment debtor’s case nor the
propriety or correctness of the first judgment.
A: NO. Under the rules, the prevailing party may (Saligumba v. Palanog G.R. No. 143365, 04 Dec. 2008)
move for the execution of a final and executory
judgment as a matter of right within five (5) years NOTE: An action to revive judgment is a personal
from the entry of judgment. If no motion is filed one.
within this period, the judgment is converted to a
mere right of action and can only be enforced by A revived judgment is deemed a new judgment
instituting a complaint for the revival of judgment in separate and distinct from the original judgment. It
a regular court within 10 years from finality of is not a continuation of the original judgment. The
judgment. However, the Court, in a long line of cases, action to revive the judgment is a new action and
has allowed for the execution of a final and results in a new judgment constituting a new cause
executory judgment even if prescription has already of action with a new period of limitations. (Riano,
set in, if the delay was caused by the judgment 2019)
obligor for his or her benefit or advantage. Here, it
is not disputed that CA decision became final and When a judgment is revived, such revived judgment
executory as early as November 1, 1998. However, may also be enforced by motion within 5 years from
due to respondents' schemes and maneuvers, they the date of its entry and thereafter by action also
managed for many years to prevent Piedad and his before it is barred by the statute of limitations. (Sec.
heirs from enjoying what had already been decreed 6, Rule 39, ROC, as amended)
to be rightfully theirs, leading to an empty victory
and petitioners' continued struggle for their rights. NOTE: The 10-year period to revive the revived
Hence, the Court granted the petition of the heirs judgment shall commence to run from the date of
and ordered the resumption of the execution the finality of the revived judgment and not from the
process against the respondents. (Piedad v. Bobilles, date of finality of the old, original judgment.
G.R. No. 208614, 27 Nov. 2017) (Philippine National Bank v. Bondoc, G.R. No. L-
20236, 30 July 1965)
Dormant judgment
Q: On August 25, 2009, Petitioners, The Malits,
A dormant judgment is one which has not been filed a complaint for cancellation and
enforced by motion within 5 years after its entry declaration of nullity of Free and Katibayan ng
and is thus reduced to a mere right of action in favor Orihinal na Titulo covering Lot No. 1298 of the
of judgment-obligee. It may be enforced by filing an Luba Cadastre, claiming that these were
action for revival of judgment and enforcing the procured by respondents through fraud. The
decision therein. (Salvante v. Cruz, Salvante v. Cruz, Malts alleged that they acquired ownership of
No. L-2531, 28 Feb. 1951) the subject land through inheritance from their
mother in whose name it was surveyed in the
years 1932 and 1935. The Malts' title over the
subject land was confirmed by the then Court of
First Instance of Pampanga dated October 28,
1959. Since then, Lot No. 1298 has been declared

Civil Procedure
for taxation purposes in the names of Orlando land registration case, unless the adverse or
Malit (Orlando) and Manuel Malit (Manuel). Lot losing party is in possession, becomes final
No. 1298 was the subject of a tenancy without any further action, upon the expiration
relationship with Nicasio Flores, Sr. (Nicasio, of the period for perfecting an appeal.
Sr.), and thereafter by Nicasio, Jr., as their
agricultural lessees. However, the respondents The Sta. Ana doctrine on the inapplicability of the
applied for a free patent over the lot which rules on prescription and laches to land registration
application was given due course by the CENRO cases has been repeatedly affirmed. Clearly, the
and was approved by the PENRO. In effect, the peculiar procedure provided in the Property
Register Deeds of Pampanga issued a Katibayan Registration Law from the time decisions in land
ng Orihinal na Titulo in the names of registration cases become final is complete in itself
respondents. and does not need to be filled in. From another
perspective, the judgment does not have to be
The RTC ruled in favor of the Malits. The CA executed by motion or enforced by action within the
however reversed the RTC's judgment on the purview of Rule 39 of the 1997 Rules on Civil
ground of failure of the Malits' to assert their Procedure.
right for an unreasonable and unexplained
length of time warranted the presumption that Unlike in ordinary civil actions governed by the
they have either abandoned or declined to Rules on Civil Procedure, the intent of land
assert it based on the grounds of public policy, registration proceedings is to establish ownership
which requires the discouragement of stale by a person of a parcel of land, consistent with the
claims for the peace of society. purpose of such extraordinary proceedings to
declare by judicial fiat a status, condition, or fact.
Is the CA correct in applying the doctrine of Hence, upon the finality of a decision adjudicating
laches against the Malits' claim? such ownership, no further step is required to
effectuate the decision and a ministerial duty exists
A: NO. Neither laches nor the statute of limitations alike on the part of the land registration court to
applies to a decision in a land registration case. The order the issuance of, and the Land Registration
fact that the Malts' ownership over Lot No. 1298 had Authority (LA) to issue, the decree of registration.
been adjudicated several decades ago does not give Failure of the court or of the clerk to issue the decree
room for the application of the statute of limitations for the reason that no motion therefore has been
or laches. In the landmark case of Sta. Ana v. Menla, filed cannot prejudice the owner or the person in
the Court expounded the raison d'etre why the whom the land is ordered to be registered. (Alberto
statute of limitations and Section 6, Rule 39 of the v. Spouses Flores, G.R. No. 237514, 10 Feb. 2021)
Rules of Court do not apply in land registration
proceedings, thus: Proper venue of revival of judgment
After the ownership has been proved and The proper venue depends on the determination of
confirmed by judicial declaration, no further whether the present action for revival of judgment
proceeding to enforce said ownership is is a real action or a personal action. If the action for
necessary, except when the adverse or losing revival of judgment affects title to or possession of
party had been in possession of the land and the real property, or interest therein, then it is a real
winning party desires to oust him therefrom. action that must be filed with the court of the place
where the real property is located. If it is a personal
Furthermore, there is no provision in the Land action, it may be filed with the court of the place
Registration Act similar to Sec. 6, Rule 39, regarding where the plaintiff or defendant resides. (Infante v.
the execution of a judgment in a civil action, except Aran Builders, Inc. G.R. No. 156596, 24 Aug. 2007)
the proceedings to place the winner in possession
by virtue of a writ of possession. The decision in a

2022 GOLDEN NOTES
Remedial Law
Effect of an appeal to the execution of the a. Death before levy:

judgment
i. Action for recovery of real or
GR: An appeal perfected in due time stays the personal property or enforcement
execution of a judgment. of any lien thereon – execution shall
issue against his or her executor or
XPNs: There are judgments which by express administrator or successor-in-
provision of law are not stayed by appeal: interest; or
ii. Action for a sum of money –
1. Those judgments which by express provision of execution will NOT issue. The
the rules are immediately executory and are not judgment obligee should file a claim
stayed by appeal (Sec. 4, Rule 39, ROC, as against the estate of the judgment
amended such as judgment for injunction, obligor under Rule 86;
receivership, accounting and support unless the
court rules otherwise or the appellate court on b. Death after levy:
appeal suspends, modifies, restores or grants Execution will issue against his or her
the same. Judgments appealed under Rule 43 executor, administrator, or successor-in-
are not stayed unless ordered by the Court; or interest because the property is already
separated from the estate of the deceased
2. Those judgments that have become the object and is deemed in custodia legis.
of discretionary execution. (Sec. 2, Rule 39, ROC,
as amended) ISSUANCE AND CONTENTS OF
A WRIT OF EXECUTION
Judgments or final orders that are immediately
final and executory Writ of execution
1. Judgments in summary judicial proceedings in It is a judicial writ issued to an officer authorizing

the family law (Art. 247, FC); him or her to execute the judgment of the court.
2. Compromise judgments;
3. Judgments of direct contempt (Sec. 2, Rule 71, Execution is the fruit and end of the suit and is the
ROC, as amended); and life of law. A judgment that is left unexecuted is
4. Judgments in cases covered by the Rule of nothing but an empty victory for the prevailing
Procedure for Small Claims Cases (Sec. 23, A.M. party. (Ayo. v. Judge Violago-Isnani, A.M. No. RTJ-99-
No. 08-8-7-SC) 1445, 21 June 1999)
Defenses available in an action for enforcement Under Supreme Court Circular No. 24-94, a Motion
for the Issuance of a Writ of Execution must contain
1. Prescription; a notice to the adverse party. Execution shall issue
2. Satisfaction of claim; and as a matter of right, on motion, upon a judgment or
3. Counterclaims. order that disposes of the action or proceeding upon
the expiration of the period to appeal therefrom if
Issuance of Execution in case of death of a party no appeal has been duly perfected. (Pallada v. RTC
of Kalibo, Aklan, G.R. No. 129442, 10 Mar. 1999)
1. Death of an obligee – execution will issue in
any case, upon application of his or her By way of exception, execution pending appeal is
executor, administrator, or successor-in- allowed on motion of the prevailing party with
interest; notice to the adverse party; the court may, in its
discretion, order execution to issue even before the
2. Death of an obligor expiration of the time to appeal, upon good reasons

Civil Procedure
to be stated in a special order. (Eudela v. CA, G.R. No. with the judgment, the material parts of
89265, 17 July 1992) which shall be recited in the writ of
execution;
Lifetime of a writ of execution
d. If it be for the delivery of the possession of
1. A final and executory judgment or order may be real or personal property, to deliver the
executed on motion within five (5) years from possession of the same, describing it, to the
the date of its entry. After the lapse of such time, party entitled thereto, and to satisfy any
and before it is barred by the statute of costs, damages, rents, or profits covered by
limitations, a judgment may be enforced by the judgment out of the personal property
action. of the person against whom it was
rendered, and if sufficient personal
2. The revived judgment may also be enforced by property cannot be found, then out of the
motion within five (5) years from the date of its real property; and
entry and thereafter by action before it is
barred by the statute of limitations. (Sec. 6, Rule e. In all cases, the writ of execution shall
39, ROC, as amended) specifically state the amount of the interest,
costs, damages, rents, or profits due as of
Contents of a writ of execution the date of the issuance of the writ, aside
from the principal obligation under the
The writ of execution is issued in the name of the judgment. For this purpose, the motion for
Philippines and shall state: execution shall specify the amounts of the
foregoing reliefs sought by the movants.
1. The name of the court which granted the (Sec. 8, Rule 39, ROC, as amended)
motion;
2. The case number; NOTE: The motion for execution and the writ of
3. The dispositive portion of the judgment or execution must state specifically the amount of
order subject of the execution; and interest, costs, damages, rents, or profits due as
4. A statement requiring the sheriff or other of the date of issuance of the writ, aside from the
proper officer to whom it is directed to enforce principal obligation.
the writ according to its terms, in the manner
hereinafter provided: Effect when the writ of execution does not
conform to the judgment
a. If the execution be against the property of
the judgment obligor, to satisfy the The general rule is that the writ of execution should
judgment, with interest, out of the real or conform to the dispositive portion of the decision to
personal property of such judgment be executed, and that the execution is void if it is in
obligor; excess of and beyond the original judgment or
award. (Santos v. Commission on Elections, G.R. No.
b. If it be against real or personal property in 235058, 04 Sept. 2018)
the hands of personal representatives, If the writ of execution is different from the
heirs, devisees, legatees, tenants, or judgment or exceeds the terms of the judgment, it is
trustees of the judgment obligor, to satisfy a nullity and may be quashed on motion. (Romero, et
the judgment, with interest, out of such al. v. CA, G.R. No. L-29659, 30 July 1971)
property;
Cases where a writ of possession may be issued
c. If it be for the sale of real or personal
property, to sell such property, describing 1. Land registration proceedings (in rem);
it, and apply the proceeds in conformity

2022 GOLDEN NOTES
Remedial Law
2. Extrajudicial foreclosure of a real estate EXECUTION OF JUDGMENTS FOR MONEY

mortgage;
3. Judicial foreclosure of mortgage, (quasi in rem) Three ways to enforce a judgment for money
provided that the mortgagor is in possession of
the mortgaged realty and no third person, not a 1. Immediate payment on demand;
party to the foreclosure suit, had intervened; 2. Satisfaction by levy; and
and 3. Garnishment of debts and credits.
4. Execution sale (Mabale v. Apalisok, G.R. No. L-
46942, 06 Feb. 1979) Steps in executing a judgment for money
NOTE: An order granting the issuance of a writ of 1. The officer shall demand from the obligor the
execution of a final judgment is not appealable, immediate payment of the full amount stated in
except when the order varies in term, vague, and a the judgment including the lawful fees in cash,
wrong interpretation of judgment. (Socorro v. Ortiz, certified check payable to the judgment obligee
G.R. No. L-23608, 24 Dec.1964; Molina v. De la Riva, 8 or any other form of payment acceptable to
Phil 571; JM Tuazon & Co., Inc. v. Estabillo, G.R. No. L- him;
20610, 10 Jan. 1975)
2. If the judgment obligor cannot pay all or part of
Grounds to quash the writ of execution the obligation in cash, certified check or other
mode of payment, the officer shall levy upon the
1. When the writ of execution varies the properties of the judgment obligor. The
judgment; judgment obligor shall have the option to
choose which property or part thereof may be
2. When there has been a change in the situation levied upon. If the judgment obligor does not
of the parties making the execution inequitable exercise the option, the officer shall first levy on
or unjust; the personal properties, if any, and then on the
real properties if the personal properties are
3. When execution is sought to be enforced insufficient to answer for the personal
against a property exempt from execution; judgment but the sheriff shall sell only so much
of the property that is sufficient to satisfy the
4. When it appears that the controversy has never judgment and lawful fees;
been submitted to the judgment of the court;
3. The officer may levy on the debts due the
5. When the terms of the judgment are not clear judgment debtor including bank deposits,
enough and there remains room for financial interests, royalties, commissions and
interpretation thereof; other personal property not capable of manual
delivery in the possession or control of third
6. When it appears that the writ of execution has parties. This is called garnishment. (Sec. 9, Rule
been improvidently issued; and 39, ROC)
7. When it appears that the writ of execution is Discretion to choose which property to levy
defective in substance, or is issued against the
wrong party, or that the judgment debt has The judgment obligor shall have the discretion to
been paid or otherwise satisfied or the writ is choose which property to levy. Therefore, the
issued without authority. (Reburiano v. CA, G.R. sheriff cannot and should not be the one to
No. 102965, 21 Jan. 1999) determine which property to levy if the judgment
obligor cannot immediately pay because it is the
judgment obligor who is given the option to choose
which property or part thereof may be levied upon

Civil Procedure
to satisfy the judgment. The power of the court in properties in custodia legis, obtaining pendente lite
executing judgments extends only to properties a lien until the judgment of the proper tribunal on
unquestionably belonging to the judgment debtor the plaintiff’s claim is established, when the lien
alone. An execution can be issued only against a becomes effective as of the date of the levy.
party and not against one who did not have his day
in court. (Leachon v. Pascua, A.M. No. P-11-2972, 28 NOTE: The garnishee or the third person who is in
Sept. 2011) the possession of the property of the judgment
debtor is deemed a forced intervenor.
Right to choose may be waived by the judgment
obligor It is a settled rule that upon service of the writ of
garnishment, the garnishee becomes a “virtual
If the judgment obligor does not exercise the option, party” or “forced intervenor” to the case and the
he waives such right, and the sheriff shall levy first trial court thereby acquires jurisdiction to bind the
on personal property, then on real property. The garnishee to comply. (BPI v. Lee, G.R. No. 190144, 01
sheriff shall only sell property sufficient to satisfy Aug. 2012)
the judgment and other lawful fees. (Villarin v.
Munasque, G.R. No. 169444, 17 Sept. 2008) Procedure in garnishment
Levy (2010 BAR) 1. A notice is served upon the third person or

garnishee having in possession or control of the
It is the act by which an officer sets apart or credits in favor of the judgment obligor;
appropriates a part or the whole of the property of
the judgment debtor for purposes of the execution 2. The garnishee shall make a written report to the
sale. court within 5 days from service of notice of
garnishment stating whether or not the
A lawful levy on execution is indispensable to a valid judgment obligor has sufficient funds to satisfy
sale on execution. A sale, unless preceded by a valid the judgment. If sufficient, the garnishee shall
levy, is void, and the purchaser acquires no title to deliver the amount in cash or certified check
the property sold. Without a proper levy, the issued in the name of the judgment obligee shall
property is not placed under the authority of the be delivered directly to the judgment obligee
court. The court does not acquire jurisdiction over within 10 working days from service of notice
the property subject of execution; hence, it could not on garnishee;
transmit title thereto. (Cagayan de Oro Coliseum, Inc.
v. CA, G.R. No. 129713, 15 Dec. 1999) 3. The lawful fees shall be directly paid to the
court;
Garnishment
4. If the amount is insufficient, the garnishee shall
Garnishment is a form of levy on the debts due the make a report as to the amount he holds for the
debtor including bank deposits, financial interests, judgment creditor. (Sec. 9, Rule 39, ROC, as
royalties, commissions and other personal property amended)
not capable of manual delivery in the possession or
control of third parties. (Riano, 2014 2019) Q: The writ of execution was returned
unsatisfied. The judgment obligee subsequently
Garnishment is a kind of attachment for reaching received information that a bank holds a
credits belonging to the judgment debtor and owing substantial deposit belonging to the judgment
to him from a stranger to the litigation. A writ of obligor. If the bank denies holding the deposit in
attachment is substantially a writ of execution the name of the judgment obligor but your
except that it emanates at the beginning, instead of client's informant is certain that the deposit
at the termination, of a suit. It places the attached belongs to the judgment obligor under an

2022 GOLDEN NOTES
Remedial Law
assumed name, what is your remedy to reach required to effect removal of an improvement
the deposit? (2008 BAR) constructed by the defeated party;
A: A motion may be filed for a court order requiring 2. Deliver – The sheriff will take possession and
the proper bank officer to appear in court for deliver it to the winning party; and
examination under oath as to such bank deposit,
and subsequently move for a court order 3. Comply – The court can appoint some other
authorizing the filing of an action against such bank person at the expense of the disobedient party
for the recovery of the judgment obligor’s and the act shall have the same effect as if the
deposit/interest therein and to forbid a transfer or required party performed it.
other disposition of such deposit/interest within
120 days from notice of the order. (Secs. 37 and 43, Execution of Judgments for the following
Rule 39, ROC, as amended) specific acts if the judgment debtor refuses/fails
to comply
Implementation of Judgment if the obligee is
absent at the time of payment JUDGMENTS
FOR SPECIFIC
MANNER OF EXECUTION
When the judgment obligee is not present at the ACTS
time the judgment obligor makes the payment, the (Sec. 10)
sheriff is authorized to receive it. However, the Court can appoint some other
Conveyance,
money received must be remitted to the clerk of person at the cost of the
delivery of
court within the same day or, if not practicable, disobedient party and the act
deeds, or other
deposited in a fiduciary account with the nearest when so done shall have the
specific acts,
government depository bank. Sheriffs are not same effect as if done by the
vesting title.
permitted to retain the money in their possession required party.
beyond the day when the payment was made or to Sale of real Sell such property and apply
deliver the money collected directly to the judgment and personal the proceeds in conformity
oblige. (Peña, Jr. v. Regalado II, A.M. No. P-10-2772, property with the judgment.
16 Feb. 2010) If the party refuses to deliver, a
writ of execution directing the
EXECUTION OF JUDGMENTS sheriff to cause the defendant
FOR SPECIFIC ACTS to vacate is in the nature of a
habere facias possesionem and
Specific Acts authorizes the sheriff to break
open the premises where
1. Conveyance, delivery of deeds, or other specific there is no occupant therein.
acts vesting title;
2. Sale of real or personal property; Delivery or If the party refuses to vacate
3. Delivery or restitution of real property; restitution of property, the remedy is not
4. Removal of improvements on property subject real property contempt. The sheriff must
of execution; and oust the party. But if
5. Judgments for the delivery of personal demolition is involved, there
property. (Sec. 10, Rule 39, ROC, as amended) must be a special order. A
demolition order from the
Remedy when a party refuses to comply with the court is required to effect
judgment removal of an improvement
constructed by the defeated
1. Vacate the property – The sheriff must oust the party.
party. A demolition order from the court is

Civil Procedure
A writ of execution directing EXECUTION OF SPECIAL JUDGMENTS

the sheriff to cause the
defendant to vacate is in the Special judgment
nature of a habere facias
possesionem and authorizes One which requires the performance of any act,
the sheriff to break open the other than the payment of money or the sale or
premises where there is no delivery of real or personal property, which a party
occupant therein. must personally do because his personal
The officer may destroy, qualifications and circumstances have been taken
Removal of
demolish or remove the into consideration. (Sec. 11, Rule 39, ROC, as
improvements
improvements upon special amended; Regalado, 2017)
on property
order of the court, issued upon
subject of
motion of the judgment Effect of failure to comply with special
execution
obligee. judgments
Delivery of The officer shall take
personal possession and deliver to the Failure to comply with special judgment under
property party entitled thereto. Sec. 11 of ROC is punishable by imprisonment. (Sec.
Contempt in case of refusal to comply with the
judgment of the court How executed
GR: The judgment debtor cannot be cited in When a judgment requires the performance of any
contempt of court. Generally, it is not a remedy to act other than those mentioned in the two preceding
enforce a judgment. sections, a certified copy of the judgment shall be
attached to the writ of execution and shall be served
XPNs: by the officer upon the party against whom the same
1. Refusal to perform a particular act or special is rendered, or upon any other person required
judgments under Sec. 11, Rule 39 where he may thereby, or by law, to obey the same, and such party
be cited in contempt. or person may be punished for contempt if he
disobeys such judgment. (Sec. 11, Rule 39, ROC, as
2. In case of the provisional remedy of support amended)
pendente lite under Rule 61, the judgment
debtor may still be cited for contempt even if EFFECT OF LEVY ON THIRD PERSONS
the decision is not a special judgment and
requires the latter judgment debtor to pay The levy on execution creates a lien in favor of the
money. judgment obligee over the right, title and interest of
the judgment obligor in such property at the time of
NOTE: If a judgment requires a person to perform a the levy, subject to liens and encumbrances then
specific act, said act must be performed, but if the existing. (Sec. 12, Rule 39, ROC, as amended)
party fails to comply within the specified time, the
court may direct the act to be done by someone at Encumbered property may be levied
the cost of the disobedient party and the act when
so done shall have the effect as if done by the party. For purposes of the levy, a property is deemed to
(Riano, 2019) belong to the judgment debtor if he holds a
beneficial interest in such property that he can sell
In such case, the disobedient party incurs no or otherwise dispose of for value. In a contract of
liability for contempt. (Regalado, 2017) mortgage, the debtor retains beneficial interest over
the property notwithstanding the encumbrance,
since the mortgage only serves to secure the

2022 GOLDEN NOTES
Remedial Law
fulfillment of the principal obligation. Indeed, even liable to him for the money judgment alleging
if the debtor defaults, this fact does not operate to that B had transferred said properties to C to
vest in the creditor the ownership of the property; defraud him. After due hearing, the court denied
the creditor must still resort to foreclosure the third-party claim and rendered an amended
proceedings. Thus, a mortgaged property may still decision declaring B and C jointly and severally
be levied upon by the sheriff to satisfy the judgment liable to A for the money judgment. Is the ruling
debtor’s obligations. (Golden Sun Finance of the court correct? (2006 BAR)
Corporation v. Albano, A.M. No. P-11-2888, 27 July
2011) A: NO. C has not been properly impleaded as a party
defendant. He cannot be held liable for the judgment
Remedies available to a third-party claimant in against A without a trial. In fact, since no bond was
levy of real property filed by B, the sheriff is liable to C for damages. C can
file a separate action to enforce his third-party
1. Summary hearing before the court which claim. It is in that suit that A can properly raise the
authorized the execution; ground of fraud against C. However, the execution
2. Terceria or a third-party claim filed with the may proceed where there is a finding that the claim
sheriff; is fraudulent. Besides, the judgment is already final.
3. Action for damages on the bond posted by
judgment creditors; or PROPERTIES EXEMPT FROM EXECUTION
4. Independent reinvindicatory action (Sec. 16,
Rule 39, ROC, as amended) 1. The judgment obligor’s family home as
provided by law, or the homestead in which he
NOTE: The remedies are cumulative and may be resides, and land necessarily used in connection
resorted to by the third-party claimant therewith;
independently of or separately from the others.
Availment of the terceria is not a condition sine qua 2. Ordinary tools and implements personally used
non to the institution of “separate action.” (Imani v. by him in his trade, employment or livelihood;
Metropolitan Bank & Trust Company, G.R. No.
187023, 17 Nov. 2010) 3. Three (3) horses, cows, or carabaos, or other
beasts of burden, such as the judgment obligor
The officer shall not be liable for damages for the may select necessarily used by him in his
taking or keeping of the property, to any third-party ordinary occupation;
claimant if there is a bond filed by the winning party.
If there is no bond, the sale cannot proceed. 4. His necessary clothing and articles for ordinary
However, the judgment obligee can claim damages personal use, excluding jewelry;
against a third-party claimant who filed a frivolous
or plainly spurious claim, and such judgment 5. Household furniture and utensils necessary for
obligee can institute proceedings therefor in the housekeeping, and used for that purpose by the
same or separate action. judgment obligor and his family, such as the
judgment obligor may select, of a value not
Q: A obtained a money judgment against B. After exceeding Php 100,000;
the finality of the decision, the court issued a
writ of execution for the enforcement thereof. 6. Provisions for individual or family use sufficient
Conformably with the said writ, the sheriff for four (4) months;
levied upon certain properties under B’s name.
C filed a third-party claim over said properties 7. The professional libraries and equipment of
claiming that B had already transferred the judges, lawyers, physicians, pharmacists,
same to him. A moved to deny the third-party dentists, engineers, surveyors, clergymen,
claim and to hold B and C jointly and severally

Civil Procedure
teachers, and other professionals, not Other properties exempt from execution
exceeding Php 300,000 in value; outside the Rules of Court
8. One (1) fishing boat and accessories not 1. Property mortgaged to DBP (Sec. 26, C.A. No.
exceeding the total value of Php 100,000 owned 458);
by a fisherman and by the lawful use of which
he earns his livelihood; 2. Property taken over by Alien Property
Administration (Sec. 9(f), US Trading with the
9. So much of the salaries, wages, or earnings of Enemy Act);
the judgment obligor for his personal services
within the 4 months preceding the levy as are 3. Savings of national prisoners deposited with
necessary for the support of his family; the Postal Savings Bank (Act No. 2489);
10. Lettered gravestones;
4. Back pay of pre-war civilian employees (R.A. No.
11. Monies, benefits, privileges, or annuities 304);
accruing or in any manner growing out of any
life insurance; 5. Philippine Government back pay to guerillas
(R.A. No. 897);
12. The right to receive legal support, or money or
property obtained as such support, or any 6. Produce, work animals, and farm implements of
pension or gratuity from the government; and agricultural lessees, subject to limitations (Sec.
21, R.A. No. 6389);
13. Properties specially exempted by law. (Sec. 13,
Rule 39, ROC, as amended) 7. Benefits from private retirement systems of
companies and establishments, with limitations
NOTE: No article or species of property mentioned (R.A. No. 4917);
above shall be exempt from execution issued upon a
judgment recovered for its price or upon a judgment 8. Labor wages, except for debts incurred for food,
of foreclosure of a mortgage thereon. (Ibid.) shelter, clothing, and medical attendance (Art.
1708, NCC);
Otherwise stated, if the property mentioned in Sec.
13 of Rule 39 is the subject of execution because of 9. Benefit payments from the SSS (Sec. 16, R.A. No.
a judgment for the recovery of the price or upon a 1161 as amended by P.D. Nos. 24, 65, and 177);
judgment of foreclosure of a mortgage upon the
property, the property is not exempt from 10. Copyrights and other rights in intellectual
execution. (Riano, 2019) property under the former copyright law (P.D.
No. 49; Sec. 239.3, R.A. No. 8293); and
Judgment obligor’s family home as provided by
law 11. Bonds issued under R.A. No. 1000 (NASSCO v.
CIR. No. L-17874, 31, Aug. 1963; Regalado, 2017)
It is not sufficient that the person claiming
exemption merely alleges that such property is a REMEDIES WHEN PROPERTY IS CLAIMED BY
family home. This claim for exemption must be set THIRD PERSONS
up and proved to the sheriff. Failure to do so would
estop the party from later claiming the exception. When to file a third-party claim
(Sps. Versola v. CA, G.R. No. 164740, 31 July 2006)
At any time, so long as the sheriff has the possession
of the property levied upon, or before the property

2022 GOLDEN NOTES
Remedial Law
is sold under execution. (Sec. 14, Rule 57, ROC, as Other remedies of the third-party claimant
amended)
Other remedies may also be availed of by the third-
Requisites for a claim by a third person party claimant because nothing contained in the
(Terceria) Rules shall prevent the claiming third person from
vindicating his or her claim to the property in a
1. The property is levied; separate action. (Riano, 2019)
2. The claimant is a person other than the
judgment obligor or his agent; Remedy of the judgment obligee in case of a
3. The claimant makes an affidavit of his title frivolous or plainly spurious claim
thereto or right to the possession thereof
stating the grounds of such right or title; and The judgment obligee may claim damages in the
4. The claimant serves the same upon the officer same or a separate action against a third-party
making the levy and the judgment oblige. (Sec. claimant who filed a frivolous or plainly spurious
16, Rule 39, ROC, as amended) claim.
Duty of the officer if the property sought to be Effect of a writ of execution is issued in the Name
levied on is claimed by another person and of the Republic of the Philippines
proper proof of ownership or possession is
served such officer When the writ of execution is issued in favor of the
Republic of the Philippines, or any officer duly
If the property levied on is claimed by any person representing it:
other than the judgment obligor or his agent, and
such person makes an affidavit of his title thereto 1. The filing of such bond shall not be required;
or right to the possession thereof, stating the
grounds of such right or title, and serves the same 2. In case the sheriff or levying officer is sued for
upon the officer making the levy and a copy thereof damages as a result of the levy, he or she shall
upon the judgment obligee, the officer in such a case be represented by the Solicitor General; and
shall not be bound to keep the property, unless the
judgment obligee, on demand of the officer, files a 3. If the sheriff or levying officer is held liable
bond approved by the court to indemnify the third- therefor, the actual damages adjudged by the
party claimant in a sum not less than the value of the court shall be paid by the National Treasurer
property levied on. In case of disagreement as to the out of such funds as may be appropriated for
value, the same shall be determined by the court the purpose. (Ibid.)
issuing the writ of execution. No claim for damages
for the taking or keeping of the property may be IN RELATION TO THIRD-PARTY CLAIM IN
enforced against the bond unless the action therefor ATTACHMENT AND REPLEVIN
is filed within 120 days from the date of the filing of
the bond. (Sec. 16, Rule 39, ROC, as amended) Remedies available to a third person not party to the
action but whose property is the subject of
Liability of the officer for damages for the taking execution:
or keeping of the property
1. Terceria – By making an affidavit of his title
The officer shall not be liable for damages for the thereto or his right to possession thereof,
taking or keeping of the property, to any third-party stating the grounds of such right or title. The
claimant if such bond is filed. (Ibid) affidavit must be served upon the sheriff and
the attaching party (Sec. 14, Rule 57, ROC, as
amended). Upon service of the affidavit upon
him, the sheriff shall not be bound to keep the

Civil Procedure
property under attachment except if the available only to real properties. (Sec. 27, Rule 39,
attaching party files a bond approved by the ROC, as amended)
court. The sheriff shall not be liable for damages
for the taking or keeping of the property, if such NOTE: The period of redemption is not suspended
bond shall be filed. by an action to annul the foreclosure sale. The
periods for redemption are not extendible.
2. Exclusion or release of property – Upon However, the parties may agree on a longer period,
application of the third person through a in a in such case, it would be a conventional
motion to set aside the levy on attachment, the redemption.
court shall order a summary hearing for the
purpose of determining whether the sheriff has Person/party to redeem the real property sold
acted rightly or wrongly in the performance of
his duties in the execution of the writ of Real property sold, or any part thereof sold
attachment. The court may order the sheriff to separately, may be redeemed by the following
release the property from the erroneous levy persons:
and to return the same to the third person. In
resolving the application, the court cannot pass 1. Judgment obligor
upon the question of title to the property with
any character of finality but only insofar as may 2. Judgment obligor’s, successor-in-interest in
be necessary to decide if the sheriff has acted the whole or any part of the property;
correctly or not. (Ching v. CA, G.R. No. 124642, 23
Feb. 2004) 3. Redemptioner – a creditor having a lien by
virtue of an attachment, judgment or mortgage
For the conjugal partnership to be liable for a on the property sold, or on some part thereof,
liability that should appertain to the husband subsequent to the lien under which the
alone, there must be a showing that some property was sold. (Sec 27(b), Rule 39, ROC, as
advantages accrued to the spouses. (Ibid.) amended)
3. Intervention– This is possible because no NOTE: There is no right of redemption in

judgment has yet been rendered and under the judicial foreclosure of mortgage under Rule 68.
rules, a motion for intervention may be filed any The right of redemption exists only in execution
time before the rendition of the judgment by the sales and extrajudicial foreclosures where
trial court. (Sec. 2, Rule 19, ROC, as amended) there is always a right of redemption. (Santos v.
Register of Deeds, G.R. No. L-26752, 19 Mar.
4. Accion Reivindicatoria – The third-party 1971)
claimant is not precluded by Sec. 14, Rule 57
from vindicating his claim to the property in the Judgment Obligor vs. Redemptioner
same or in a separate action. He may file a
separate action to nullify the levy with damages JUDGMENT OBLIGOR REDEMPTIONER
resulting from the unlawful levy and seizure. Does not only refer to
This action may be a totally distinct action from judgment obligor. He
the former case. or her may be a
Judgment obligor, or
creditor having a lien
his or her successor in
RULES ON REDEMPTION by virtue of an
interest (e.g.,
attachment, judgment
transferee, assignee,
Availability of the right of redemption or mortgage on the
heirs, joint debtors)
property sold, or on
There is no right of redemption as to personal some part thereof,
properties for the sale is absolute. Such right is subsequent to the lien

2022 GOLDEN NOTES
Remedial Law
under which the Redemption price

property was sold.
Such redeeming 1. By judgment obligor or the first
creditor is termed a redemptioner:
redemptioner (Sec. 27, a. Purchase price;
Rule 39, ROC, as b. One percent (1%) per month interest up to
amended). the time of redemption;
1. Within 1 year from c. Amount of any assessments or taxes which
the date of the purchaser may have paid thereon after
registration of the purchase and interest on such last-named
certificate of sale if amount at the same rate; and
he is the first d. If the purchaser is also a creditor having a
redemptioner; or prior lien to that of a redemptioner, other
than the judgment under which such
2. Within 60 days purchase was made, the amount of such
Within 1 year from the from the last other lien, also with interest. (Sec. 28, Rule
date of registration of redemption, if he 39, ROC)
the certificate of sale. be a subsequent
redemptioner, 2. By subsequent redemptioners:
provided that the a. Amount paid on last redemption;
judgment debtor b. Two percent (2%) interest thereon;
has not exercised c. Any amount of assessments or taxes which
his right of purchaser may have paid after purchase as
redemption (Sec. well as interest on such last named amount
28, Rule 39, ROC, as at the same rate; and
amended). d. The amount of any liens held by said last
Once he or she redemptioner prior to his own, also with
redeems, no further interest. (Sec. 28, Rule 39, ROC, as amended)
redemption is allowed. Further redemption is
The person to whom allowed, even after Effect of Redemption by Judgment Obligor
redemption was made lapse of 1 year, as long
must execute and as each redemption is The person to whom the redemption payment is
deliver to the made within 60 days made must execute and deliver to the judgment
judgment obligor a after the last. obligor a notarized certificate of redemption, which
certificate of is filed, registered, and annotated with the Register
redemption. of Deeds. (Sec. 29, Rule 39, ROC, as amended)
Successors-in-interest Rights Pending Redemption
The following are successors in interest: A judgment obligee may apply for injunction to
restrain the commission or waste on the property.
1. One to whom the debtor has transferred his (Sec. 31, Rule 39, ROC, as amended)
interest;
2. One to whom the debtor has conveyed his It is not waste for a person in possession of the
interest in the property for purposes of property at the time of the sale, or entitled to
redemption; or possession afterwards, during the period allowed
3. One who succeeds in the interest of the for redemption to:
judgment obligor because of law. (Palicte v.
Ramolete, G.R. No. L-55076, 21 Sept. 1987)

Civil Procedure
1. Continue to use it in the same manner in which Instances when the purchaser may recover the
it was previously used; purchase price from the judgment obligor
2. Use it in the ordinary course of husbandry; or
3. Make the necessary repairs to buildings 1. If the purchaser or his or her successor-in-
thereon while he occupies the property. (Ibid.) interest fails to recover possession of the
property sold on execution sale; or
Rights of a judgment debtor
2. Is evicted due to:
1. To remain in possession of the property until a. Irregularities in the proceedings
the expiration of period of redemption; concerning the sale;
2. To collect rents and profits until the expiration b. Reversal or setting aside of judgment;
of period of redemption (Sec. 32, Rule 39, ROC, c. The fact that the property was exempt from
as amended); execution; or
3. To use the property in the same manner it was d. If a third person has vindicated his claim to
previously used; the property. (Sec. 34, Rule 39, ROC, as
4. To make necessary repairs; and amended)
5. Use it in the ordinary course of husbandry. (Sec.
31, Rule 39, ROC, as amended) Remedy of a purchaser of real property sold on
execution in instances when purchaser may
Purchaser entitled to possession and recover the purchase price
conveyance of the property sold on Execution
1. Bring an action against the judgment creditor;
The purchaser is entitled to possession and 2. File a motion for revival of judgment in his
conveyance of the property if no redemption is name against the judgment debtor; or
made within 1 year from the date of the registration 3. Bring an action to recover possession of
of the certificate of sale. (Sec. 33, Rule 39, ROC, as property. (Sec. 34, Rule 39, ROC, as amended)
amended)
EXAMINATION OF JUDGMENT OBLIGOR
NOTE: If so, redeemed whenever 60 days have WHEN JUDGMENT IS UNSATISFIED
elapsed and no other redemption has been made,
and notice thereof given, and the time for Effect when the judgment was returned
redemption has expired, the last redemptioner is unsatisfied (2002, 2008 BAR)
entitled to the conveyance and possession. (Ibid.)
1. The judgment creditor may cause examination
NOTE: As a rule, upon the expiration of the right of of the judgment debtor as to his or her property
redemption, the purchaser or redemptioner shall be and income (Sec. 36, Rule 39, ROC, as amended);
substituted to and acquire all the rights, title, 2. The judgment creditor may cause examination
interest and claim of the judgment obligor to the of the debtors of the judgment debtor as to any
property as of the time of the levy; the possession of debt owed by him or her or to any property of
the property shall be given to the purchaser or last the judgment debtor in his or her possession
redemptioner by the same officer. before the court or a commissioner appointed
by it, at a time and place within the province or
As an exception, whenever a third party is actually city where such debtor resides or is found (Sec.
holding the property adversely to the judgment 37, Rule 39, ROC, as amended);
obligor. (Ibid.)
3. If the court finds, after examination, that there
is property of the judgment debtor either in his
or her own hands or that of any person, the
court may order the property applied to the

2022 GOLDEN NOTES
Remedial Law
satisfaction of the judgment (Sec. 37, Rule 39, obligee, at any time after such return is made, shall
ROC, as amended); be entitled to an order from the court which
rendered the said judgment, requiring such
4. If the court finds the earnings of the judgment judgment obligor to appear and be examined
debtor are more than sufficient for his or her concerning his property and income before such
family’s needs, it may order payment in fixed court or before a commissioner appointed by it.
monthly installments (Sec. 40, Rule 39, ROC, as However, no judgment obligor shall be so required
amended); to appear before a court or commissioner outside
the province or city in which such obligor resides or
5. The court may appoint a receiver for the is found. (Sec. 36, Rule 39, ROC, as amended)
property of the judgment debtor not exempt
from execution or forbid a transfer or EXAMINATION OF OBLIGOR
disposition or interference with such property OF JUDGMENT OBLIGOR
When the return of a writ of execution against the
6. If the court finds that the judgment debtor has property of a judgment obligor shows that the
an ascertainable interest in real property either judgment remains unsatisfied, in whole or in part,
as mortgagor, mortgagee, or otherwise, and his and upon proof to the satisfaction of the court which
or her interest can be ascertained without issued the writ, that a person, corporation, or other
controversy, the court may order the sale of judicial entity has property of such judgment
such interest (Sec. 42, Rule 39, ROC, as obligor or is indebted to him, the court may, by an
amended); and order, require such person, corporation, or other
juridical entity, or any officer or member thereof, to
7. If the person alleged to have the property of the appear before the court or a commissioner
judgment debtor or be indebted to him or her, appointed by it, at a time and place within the
claims an adverse interest in the property, or province or city where such debtor resides or is
denies the debt, the court may authorize, by an found, and be examined concerning the same. (Sec.
order, the judgment creditor to institute an 37, Rule 39, ROC, as amended) (2008 BAR)
action to recover the property, forbid its
transfer and may punish disobedience of such NOTE: A party or other person may be compelled,
order for contempt. (Sec. 43, Rule 39, ROC, as by an order of subpoena, to appear before the court
amended) or commissioner to testify as provided in Secs. 36 &
37. Failure to obey may be punished by contempt. If
Q: Anna, a Manila resident, sued Betsie, a examination is before a commissioner, the
resident of Malolos, Bulacan, in the RTC Manila commissioner must put it in writing and certify it to
for a sum of money. The trial court rendered the court. All examinations and answers must be
judgment holding Anna liable for the entire under oath.
amount prayed for in the complaint. After the
judgment had become final, a writ of execution EFFECT OF JUDGMENTS OR FINAL ORDERS
was issued by the court. As the writ was
returned unsatisfied, Anna filed a motion for an 1. If judgment or final order is on a specific thing –
order requiring Betsie to appear before it and be the same is conclusive upon the title to thing;
examined regarding his property and income.
How should the court resolve the motion? (2002 2. If judgment or final order is in respect to the
BAR) probate of a will, or the administration of the
estate of a deceased person – the same is
A: The RTC Manila should deny the motion. Betsie conclusive upon the will or administration, but
resides in Malolos, Bulacan. When a writ of the probate of the will or the granting of letters
execution is returned unsatisfied, the judgment of administration shall only be prima facie

Civil Procedure
evidence of the death of the testator or intestate 6. Writ of execution is improvidently issued;
and not a conclusive presumption of death; 7. Writ of execution is defective in substance;
8. Writ of execution is issued against the wrong
3. If judgment or final order is in respect to the party;
personal, political or legal condition or status of 9. Judgment debtor has been paid or otherwise
a particular person or his relationship to satisfied; and
another – the judgment or final order is 10. Writ of execution was issued without authority.
conclusive upon the condition, status or
relationship; NOTE: In the above exceptions, the proper remedy
is petition for certiorari under Rule 65.
4. In other cases, if the judgment be with respect
to the matter directly adjudged or as to any Instances when execution of final and executory
other matter that could have been raised in judgment is allowed
relation thereto – the judgment or final order is
conclusive between the parties and their 1. Upon filing of a petition for relief from
successors-in-interest by title subsequent to judgment;
the commencement of the action or special 2. Attack against a judgment which is void for lack
proceeding, litigating for the same thing and of jurisdiction, or obtained through fraud;
under the same title and in the same capacity, 3. On equitable grounds; and
relationship; and 4. In cases falling under the 10 exceptions above.
5. In any other litigation between the same parties Modifying final and executory judgments
or their successors-in-interest – that only is
deemed to be adjudged in a former judgment or GR: Final and executory judgments cannot be
final order which appear upon its face to have amended or modified. Any amendment which
been adjudged, or which was actually and substantially affects a final and executory judgment
necessarily included therein or necessary is null and void for lack of jurisdiction.
thereto. (Sec. 47, Rule 39, ROC, as amended)
XPN: Judgment may be modified as to:
Refusal to issue writ of execution after judgment
has become final 1. Clerical errors or mistakes - errors which are not
the result of the exercise of judicial functions;
GR: The trial court has ministerial duty to order 2. To clarify ambiguity;
execution of final and executory judgments. It 3. To enter nunc pro tunc orders – to make a
cannot refuse execution and is compellable by present record of an order which the court
mandamus. rendered at a previous time but, by
inadvertence has not been entered; and
XPNs: (Same as the grounds to quash a writ of 4. In judgments for support which can always be
execution) amended from time to time, in light of the
circumstances of the parties. (Regalado, 2017)
1. Change in the situation of the parties which
makes the execution inequitable or unjust; Requisites of Res Judicata
2. Writ of execution varies judgment;
3. Controversy was never submitted to the 1. Former judgment or order must be final and
judgment of the court; executory;
4. Execution is sought against property exempt 2. Court has jurisdiction over subject matter and
from execution; parties;
5. Terms of the judgment are not clear and leaves 3. Former judgment or order was rendered on
room for interpretation; merits;

2022 GOLDEN NOTES
Remedial Law
4. Identity of parties, subject matter, and cause of To apply this doctrine, the following essential
action between first and second action (The requisites should be satisfied: (1) finality of the
test is to determine identity of cause of action). former judgment; (2) the court which rendered the
(FELS v. Province of Batangas, G.R. No. 168557, judgment had jurisdiction over the subject matter
19 Feb. 2007) and the parties; (3) it must be a judgment on the
merits; and (4) there must be, between the first and
Two Aspects of Res Judicata second actions, identity of parties, subject matter
and causes of action. (BPI v. Coquia G.R. No. 167518,
1. "Bar by prior judgment" or "estoppel by 23 Mar. 2011)
verdict" – It is the effect of a judgment as a bar
to the prosecution of a second action upon the ENFORCEMENT AND EFFECT OF
same claim, demand or cause of action. (Sps. FOREIGN JUDGMENTS OR FINAL ORDERS
Rasdas v. Estenor, G.R. No. 157605, 13 Dec. 2005).
Effect of a Foreign Order (2007 BAR)
Any right, fact or matter in issue directly
adjudicated or necessarily involved in the 1. Against a specific thing – conclusive upon title
determination of an action before a competent to the thing
court in which a judgment or decree is rendered
on the merits is conclusively settled by the 2. Against a person – presumptive evidence of a
judgment therein and cannot again be litigated right as between the parties and their
between the parties and their privies whether successors-in-interest by a subsequent title
the claim or demand, purpose or subject matter (Sec. 48, Rule 39, ROC, as amended)
of the two suits is the same or not. (Prudential
Bank v. Mauricio, G.R. No. 183350, 18 Jan. 2012) NOTE: In both instances, the judgment may be
repelled by evidence of want of jurisdiction, notice,
2. "Conclusiveness of judgment" or the “rule of collusion, fraud, or clear mistake of law or fact.
auter action pendant” – It ordains those issues
actually and directly resolved in a former suit Enforcement of a judgment of a foreign court
cannot again be raised in any future case (2007 BAR)
between the same parties involving a different
cause of action. It has the effect of preclusion of Judgment of foreign courts may only be enforced in
issues only. (Sps. Rasdas v. Estenor, G.R. No. the Philippines through an action validly heard in an
157605, 13 Dec. 2005). RTC. Thus, it is actually the judgment of the
Philippine court enforcing the foreign judgment
Q. On appeal, the CA affirmed the NLRC’s finding that shall be executed.
of illegal dismissal. Aggrieved, the defendant
employer filed a petition to set aside the
judgment only after the entry of judgment. Will
the petition prosper?
A. NO. Given that the case is already final and

executory, it can no longer be attacked by any
parties or be modified, even by the Supreme Court.
In its concept as a bar by prior judgment under
Section 47(b) of Rule 39 of the Rules of Court, res
judicata dictates that a judgment on the merits
rendered by a court of competent jurisdiction
operates as an absolute bar to a subsequent action
involving the same cause of action.

Provisional Remedies
previously granted therein. Provisional remedies

III. PROVISIONAL REMEDIES (also known as ancillary or auxiliary remedies) are
writs and processes available during the pendency
of the action which may be resorted to by a litigant
to preserve and protect certain rights and interests
pending rendition, and for purposes of the ultimate
A. NATURE, PURPOSE AND JURISDICTION OVER effects, of a final judgment in the case. They are
PROVISIONAL REMEDIES provisional because they constitute temporary
measures availed of during the pendency of the
action, and they are ancillary because they are mere
Provisional remedies are those writs and processes incidents in and are dependent upon the result of
which are temporary, auxiliary, and ancillary the main action. (United Alloy v. UCPB, G.R. No.
remedies available to a litigant for the protection 179257, 23 Nov. 2015)
and preservation of his rights until the final
disposition of a matter in litigation. Such writs and Q: PAP is a government agency charged with the
processes are dependent for their application upon management and control of all ports in the
the existence of a main action. (Riano, 2019) Philippines. On the other hand, NIASSI is a duly
organized Philippine corporation engaged in
They are temporary measures availed during the the business of cargo handling. PAP accepted
pendency of the action and ancillary because they bids for a 10- year contract to operate as the sole
are incidents and are dependent upon the result of cargo handler at the port of Nasipit, Agusan del
the main action. (Buyco v. Baraquia, G.R. No. 177486, Norte. Subsequently, PAP issued a Notice of
21 Dec. 2009) Award in favor of NIASSI and the latter sent a
Notice confirming the same to the former.
Purpose of provisional remedies Instead of formally executing a written contract,
NIASSI requested PAP to issue a Holdover
1. To preserve or protect their rights or interests Authority in its favor in view of a pending
while the main action is pending; protest filed by the second highest bidder,
2. To secure the judgment; CASCOR. PAP granted the same and issued a HOA
3. To preserve the status quo; or dated August 1, 2001 or until a cargo-handling
4. To preserve the subject matter of the action. contract shall have been awarded, whichever
comes first. The HOA was extended several
Q: CA Manila granted a writ of preliminary times upon NIASSl's request. However, PAP
mandatory injunction to UniAlloy. Pursuant to issued a letter revoking the extension and
RA No. 8246, the records of the case were relayed to NIASSI that PAP would take over the
forwarded to CA CDO. However, in its decision, cargo handling services at the Nasipit Port
CA CDO found that UniAlloy lost its rights to beginning December 10, 2004.
remain in possession of the property after it
defaulted in the payment of lease and that it NIASSI filed with the RTC a Petition for
could no longer avail the remedy of preliminary Injunction with Prayer for the Writ of
injunction to regain the possession of the Preliminary Injunction and/or TRO. The
disputed premises since it already vacated the petition was later amended to a Petition for
property three days prior to the filing of Mandamus with Prayer for the Writ of
complaint. Does the dismissal of a main action Preliminary Mandatory Injunction and/or TRO.
carry with it the dissolution of any ancillary It prayed for the issuance of a writ of mandamus
relief previously granted therein? directing PAP to formally execute a written
contract, and a writ of preliminary mandatory
A: YES. The dismissal of UniAlloy's main action injunction directing PAP to turn over the
carries with it the dissolution of any ancillary relief management and operations of Nasipit Port's

2022 GOLDEN NOTES
Remedial Law
cargo handling services back to NIASSI. The RTC precludes departure from a rule previously made by
granted NIASSI's petition for the Writ of an appellate court in a subsequent proceeding
Preliminary Injunction, but was later quashed essentially involving the same case. (Philippine
upon motion of PAP. Hence, NIASSI filed a Ports Authority v. Nasipit Integrated Arrastre and
petition for Certiorari before the CA and the Stevedoring Services, Inc., G.R. No. 214864, 22 Mar.
latter granted the same and found that the RTC 2017, J. Caguioa)
Order was tainted with irregularities and in the
process of resolving the petition of NIASSI ruled Provisional remedies in civil cases (A-I-R2-S)
upon the issue of the latter's continued
operations at Nasipit Port. The CA (CA-G.R. SP 1. Preliminary Attachment (Rule 57, ROC, as
No. 00214) held that there was a perfected amended);
contract between NIASSI and PAP and that the 2. Preliminary Injunction (Rule 58, ROC as
HO and its extensions constituted partial amended);
fulfillment thereof. However, upon motion for 3. Receivership (Rule 59, ROC as amended);
reconsideration of NIASSI, the CA issued its 4. Replevin (Rule 60, ROC as amended); and
Amended Decision directing PAP to execute a 5. Support pendente lite (Rule 61, ROC as
cargo-handling contract in favor of NIASSI for a amended)
full 10-year term from the finality of the RTC
Resolution. Hence, PAP field the instance case Other provisional remedies
contending that the Amended Petition before
the TC had been rendered moot and academic by 1. Temporary Protection Order (TPO) (R.A. No.
virtue of the CA decision (CA-G.R. SP No. 00214). 9262, Anti-Violence Against Women and Their
On this basis, PAP concludes that it can no longer Children Act; Rule on Writ of Amparo);
be compelled to formally execute a contract with 2. Witness Protection Order (WPO) (R.A. No. 6981;
NIASSI upon finality of the Amended Decision, Rule on the Writ of Amparo);
since the term of the perfected contract already 3. Inspection Order (IO) (A.M. No. 07-9-12, Rule on
expired 10 years after PPA received notice of Writ of Amparo);
NIASSI's conformity to the Notice of Award. Is 4. Production Order (PO) (A.M. No 07-9-12, Rule on
PAP correct? Writ of Amparo);
5. Administration of Common Property (A.M. 02-
A: YES. The CA's findings in C.A.-G.R. S.P. No. 00214 11-12, Rule on Provisional Orders);
constitute the law of the case between the parties, 6. Freeze Order under R.A. No. 9160 as amended
and are thus binding herein. In its decision in C.A. by R.A. No. 9194 (Anti-Money Laundering Act);
G.R. S.P. No. 00214, the CA held that (i) the 10- 7. Stay Order (A.M. No. 00-8-10, Rules of Procedure
year cargo handling contract had already been on Corporate Rehabilitation);
perfected, and (ii) the HOA and its subsequent 8. Hold Departure Order (Criminal cases under
extensions constituted partial fulfillment Circular 39-97 and Family cases under A.M. No.
thereof. In turn, the Court's decision became final 02-11-12);
and executory after the lapse of 15 days from notice 9. Temporary Visitation Rights (A.M. No. 02-11-12,
thereof to the parties. From such time, the Court's Rule on Provisional Orders);
decision became immutable and unalterable. The 10. Guardian Ad Litem of Child (A.M. No. 02-1-19,
Court notes that C.A.-G.R. S.P.No.00214 and the Rule on Involuntary Commitment of Children);
instant Petition both stem from the Amended 11. Temporary Custody of Child (A.M. No. 01-1-19
Petition, and seek the same relief - the execution of and A.M. No 02-11-12);
a written contract in accordance with the Notice of 12. Spousal and Child Support (A.M. No. 02-11-12,
Award. Moreover, both cases involve the same facts, Rule on Provisional Orders)
parties and arguments. For these reasons, the Court
believes that the doctrine of the law of the case is
applicable. The doctrine of the law of the case

Provisional Remedies in Criminal Cases No. 01-11-12). Recovery of damages from the
bond is governed by Sec. 20, Rule 57 of the
Under Sec. 1, Rule 127 of the Rules of Court, the Rules of Court.
provisional remedies in civil actions may be availed
of in connection with the civil aspect deemed Applications must be filed with the court having
instituted with the criminal action, insofar as they jurisdiction over the pending principal/main action.
are applicable. An inferior court may grant a provisional remedy in
an action pending with it.
Provisional Remedies vs. Special Civil Actions
Courts with jurisdiction over provisional
PROVISIONAL SPECIAL CIVIL remedies
REMEDIES ACTIONS
Ordinary civil The SC, CA, RTC and all first-level courts can issue
Temporary, auxiliary,
proceedings; what the following provisional remedies:
and ancillary remedies
makes them special
available to a litigant
are the distinct 1. Attachment;
for the protection and
peculiarities inherent 2. Injunction;
preservation of his
in their very nature not 3. Receivership; and
rights while the main
found in ordinary civil 4. Replevin. (Riano, 2019)
action is pending
actions
These are actions in The provisional remedy of support pendente lite can
These are not causes of
themselves, but only be issued by the RTC/Family Court since an
action in themselves
possessing special action for support can only be filed with it being an
but merely adjuncts to
matters that require action the subject matter of which is incapable of
a main suit. (Estares v.
special procedures. pecuniary estimation. (Tan, 2013)
CA, G.R. No. 144755, 08
(De Fiesta v. Llorente,
June 2005))
25 Phil. 544) NOTE: As a rule, courts may not grant an application
for provisional remedy without complying with the
Common requirements requirements of notice and hearing. These
requirements, however, may be dispensed with in
1. Affidavits are required to support the issuance an application for:
of these remedies, except preliminary
injunction and receivership; 1. Writ for preliminary attachment - Under Section
2, Rule 57 of the Rules of Court, preliminary
2. A bond is required to answer for damages by attachment may be issued ex parte or upon
reason of the improvident issuance of the writ motion with notice and hearing.
except on support pendete lite, inspection of
accounts and freeze order (Human Security 2. Writ of replevin - Under Section 3, Rule 60 of
Act), inspection and production orders (Rule on ROC, the Court shall issue an order and the
the Writ of Amparo), seizure and sequestration corresponding writ of replevin, upon the filing
of accounts and assets (Human Security Act), of such affidavit and approval of the bond.
restriction of travel (Human Security Act) and There are no requirements of prior notice and
hold departure order (Circular 39-97 and A.M. hearing. (2014 BAR)

2022 GOLDEN NOTES
Remedial Law
When to apply and in what principal actions available
WHEN TO APPLY IN WHAT PRINCIPAL ACTION/S

Preliminary Attachment (Rule 57)
At the commencement of the action or at any time 1. Recovery of liquidated sum of money
before entry of judgment 2. Recovery of possession of property unjustly or
fraudulently taken, detained or converted
Preliminary Injunction (Rule 58)
At any stage of the action prior to the judgment or Action for injunction, whether or not coupled with other
final order prayers
Receivership (Rule 59)
At any stage of the proceedings and even after 1. Receivership action
judgment has become final and executory as 2. Real action involving title to or possession of realty
means of enforcing judgment 3. Foreclosure of mortgage
4. Dissolution of corporation
Replevin (Rule 60)
1. Recovery of possession of personal property
At the commencement of the action or at any time 2. Recovery of personal property subject of chattel
before answer mortgage as a preliminary step to extrajudicial
foreclosure
Support Pendente Lite (Rule 61)
1. Support, whether as the main case or as one of several
At the commencement of the prior action or causes of action
proceeding or at any time prior to judgment or 2. Criminal actions where the civil liability includes
final order support of the offspring as a consequence of the
crime, i.e., rape, seduction
proceeding and is availed of within a principal

B. PRELIMINARY ATTACHMENT (RULE 57) action because it is a mere provisional remedy. The
grant of remedy is addressed to the discretion of the
court. (Riano, 2019)
It is a provisional remedy, by virtue of which, a

Q: Nissi filed an action for Sum of Money with
plaintiff or other party, may have the property of the
Prayer for Issuance of Preliminary Attachment
adverse party be taken into the custody of the court
against Yssa for the latter's alleged failure to
as security for the satisfaction of any judgment. It is
perform her obligation under a contract entered
ancillary and preliminary, resorted before the
between her and Nissi. The Case was docketed
finality of judgment to secure the property of the
as Civil Case B-8623. The prayer for preliminary
adverse party and prevent its dissipation.
attachment was granted by the RTC. Thus, two
parcels of land registered in the name of Yssa
Attachment is strictly construed against the
were attached.
applicant. Hence, preliminary attachment should be
resorted to only when necessary and as a last
Subsequently, Claud learned of the pendency of
remedy because it exposes the debtor to
the action. She filed a Motion for Leave to
humiliation and annoyance. (Watercraft Venture
Intervene, arguing that, while the subject
Corporation v. Wolfe, G.R. No. 181721, 09 Sept. 2015)
properties were registered in the name of Yssa,
the latter is a mere nominal owner of the subject
NOTE: There is no separate action called
properties since Claud is the real owner and that
preliminary attachment. It is not a distinct
she had transferred the titles covering the

subject properties to Yssa only to facilitate the title thereto, or right to the possession thereof,
latter's loan with HDMF under the GLAD stating the grounds of such right or title, and serves
program. such affidavit upon the sheriff while the latter has
possession of the attached property, and a copy
On May 9, 2013, the TC granted Nissi's thereof upon the attaching party, the sheriff shall
Complaint. The said Decision eventually became not be bound to keep the property under
final and executory. Thereafter, the RTC denied attachment, unless the attaching party or his agent,
the petitioners Yu's Motion for Leave to on demand of the sheriff, shall file a bond approved
Intervene. The CA likewise denied the Petition by the court to indemnify the third-party claimant
for Certiorari filed by Claud because the issue in a sum not less than the value of the property
has already been rendered moot and academic levied upon. No such affidavit was filed by Claud.
in view of the fact that the Decision dated May
19, 2013 of the RTC already became final and Moreover, a writ of preliminary attachment is only
executory. Is the CA correct? a provisional remedy issued upon order of the court
where an action is pending; it is an ancillary remedy.
A: YES. The Civil Case B-8623 has already been Therefore, it can have no independent existence
decided with finality; the RTC's Decision dated May apart from a suit on a claim of the plaintiff against
19, 2013 is already final and executory. the defendant. Any relief against such attachment
Jurisprudence has made it clear that "intervention could be disposed of only in that case. Hence, with
can no longer be allowed in a case already the cessation of Civil Case No. B-8623, with the
terminated by final judgment." RTC's Decision having attained the status of finality,
the attachment sought to be questioned by Claud
Further, it must be noted that Civil Case No. B-8623 has legally ceased to exist. (Yuv. Miranda, G.R. No.
is centered on the recovery of sum of money 225752, 27 Mar. 2019, J. Caguioa)
pursued by Nissi against respondent Yssa on the
basis of the contract entered by them. Petitioner Purposes of Preliminary Attachment
Claud had no participation whatsoever in the
transaction entered into by Yssa with Nissi. The said 1. To seize the property of the debtor before final
case does not concern itself with the question of judgment and to hold it in custodia legis while
ownership over the subject properties. The only the action is pending for purposes of satisfying
involvement of the petitioner Claud in Civil Case No. the said judgment; and
B-8623 is their claim over the subject properties
registered in the name of Yssa, which were 2. To enable the court to acquire jurisdiction over
subjected to preliminary attachment. At most, Claud the res or the property where service over the
may only be considered necessary parties. It must person of the defendant cannot be effected.
be stressed that the non-inclusion of necessary
parties does not prevent the court from proceeding Nature of proceeding
in the action, and the judgment rendered therein
shall be without prejudice to the rights of such Attachment is a proceeding quasi in rem (Banco-
necessary party, Espanol Filipino v. Palanca, G.R. No. L-11390, 26 Mar.
1918) although sometimes referred to as an action
In fact, under the Rules of Court, the filing of a in rem. (Valdevieso v. Damalerio, G.R. No. 133303, 17
motion for intervention was not even absolutely Feb. 2005)
necessary and indispensable for Claud to question
the inclusion of the subject properties in the It is against a particular property, enforceable
coverage of the Writ of Preliminary Attachment. against the whole world.
Under Rule 57, Section 14 of the Rules of Court, if
the property attached is claimed by any third NOTE: Jurisdiction over the person of the defendant
person, and such person makes an affidavit of his is not required as long as the court acquires

2022 GOLDEN NOTES
Remedial Law
jurisdiction over the res. (Biaco v. Countryside Rural 5. Actions against a party who has removed or
Bank, G.R. No. 161417, 08 Feb. 2007) disposed of his property, or is about to do so,
with intent to defraud his creditors;
When availed of and is granted in an action purely
in personam, it converts the action to one that is 6. Actions against non-resident not found in the
quasi in rem. This transformation of the nature of Philippines, or person upon whom summons
the action dispenses with the need for acquiring may be served by publication (Sec. 1 Rule 57,
jurisdiction over the person of the defendant. Since ROC as amended)
attachment is directed against the property of the
defendant, the court may validly proceed with the When to apply for preliminary attachment
action as long as jurisdiction over the property is
acquired. (4 Am. Jur., 556-557) 1. At the commencement of the action; or
2. At any time before entry of judgment (Sec. 1,
GROUNDS FOR ISSUANCE Rule 57, ROC as amended)
OF WRIT OF ATTACHMENT
Who may apply for a preliminary attachment
1. In actions for the recovery of a specified amount
of money or damages, other than moral and The plaintiff or any proper party can avail of
exemplary, on a cause of action arising from preliminary attachment as long as any of the
law, contract, quasi-contract, delict or quasi- grounds therefor exists. He may also be:
delict against a party who is about to depart
from the Philippines with intent to defraud his 1. The defendant on his or her counterclaim;
or her creditors; 2. A co-party on his crossclaim; and
3. A third-party plaintiff on his or her third-party
2. Actions for money or property embezzled or claim (Sec. 1, Rule 57, ROC as amended);
fraudulently misapplied or converted to his Regalado, 2017)
own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker REQUISITES
agent, or clerk, in the course of his employment
as such, or by other person in a fiduciary Requisites for the issuance of an order of writ of
capacity, or for a willful violation of duty; preliminary attachment
3. Actions to recover the possession of property 1. An affidavit executed by the applicant, or of

unjustly or fraudulently taken, detained or some other person who personally knows the
converted, when the property, or any part facts.
thereof, has been concealed, removed, or
disposed of to prevent its being found or taken The affidavit must show that:
by the applicant or an authorized person; a. A sufficient cause of action exists;
4. Actions against a party who has been guilty of b. The case must be any of those where
fraud in contracting the debt or incurring the preliminary attachment is proper as stated
obligation upon which the action is brought or in Sec. 1, Rule 57 of the Rules of Court;
in the performance thereof;
c. There is no sufficient security for the claim
NOTE: Includes both kinds of fraud, i.e. sought to be enforced; and
a. Dolo Causante - fraud in contracting the
obligation; and d. The amount due to the applicant, or the
b. Dolo Incidente- fraud in the performance value of the property the possession of
thereof (Regalado, 2017) which he is entitled to recover, is as much

as the sum for which the order is granted NOTE: For the initial two stages, it is not necessary
above all legal counterclaims. (Sec. 3, Rule that jurisdiction over the person of the defendant
57, ROC as amended) should first be obtained. However, to validly
implement the writ, it is required that the court
2. Attachment bond – a bond executed in favor of acquire jurisdiction over the person of the
the adverse party in an amount to be fixed by defendant for without such jurisdiction, the court
the judge, not exceeding the plaintiff’s claim, has no power and authority to act in any manner
conditioned that the latter will pay all the costs against the defendant. Thus, any order issued by the
which may be adjudged to the adverse party court will not bind the defendant. (Mangila v. CA,
and all damages which he may sustain by G.R. No. 125027, 12 Aug. 2002)
reason of the attachment, if the court shall
finally adjudge that the applicant was not Issuance of order of attachment (2001 BAR)
entitled thereto. (Sec. 4, Rule 57, ROC as
amended) (2008 BAR) The writ of preliminary attachment may be issued:
Failure to allege matters required under Sec. 3, 1. Ex parte and even before summons is served
Rule 57 renders the writ totally defective as the upon the defendant.
judge issuing the writ acts in excess of
jurisdiction. (K.O Glass Construction Co., Inc. v. NOTE: An ex parte issuance of the writ is
Valenzuela, et al., G.R. No. L-48756, 11 Sept. intended to pre-empt any possible disposition
1982; Regalado, 2017) of property by the adverse party to the
detriment of the attaching creditor and thus
NOTE: The application may be incorporated in the defeat the very purpose of attachment
verified complaint alleging all the grounds and (Mindanao Savings & Loan Association, Inc. v. CA,
complying with all the requisites for the grant of the G.R. No. 84481, 18 Apr. 1989).
application.
The application for preliminary attachment ex
Effect of existence of a mortgage parte may be denied because the fundamental
requisites under Rule 57, Section 1 did not exist,
The writ will not be issued if a real estate mortgage and not because ex parte applications are per se
exists to secure the obligation even if, instead of illegal. (Davao Light & Power Co., Inc. v. CA, G.R.
filing an action for foreclosure, an action for a sum No. 93262, 29 Dec. 1991)
of money was filed. Pursuant to Sec. 3, Rule 57 of the
Rules of Court, to justify the issuance of the writ of 2. Upon motion and notice of hearing, by the court
preliminary attachment, it must be shown that the in which the action is pending and may even be
security is insufficient to cover the claim. (Riano, issued by the CA or the SC (Sec. 2, Rule 57);
2019) NOTE: A hearing on a motion or application for
preliminary attachment is not generally
ISSUANCE AND CONTENTS OF ORDER OF necessary unless otherwise directed by the trial
ATTACHMENT; AFFIDAVIT AND BOND court. (Toledo v. Burgos, G.R. No. L-75466, 19
Dec. 1988) This is because an order of
Stages in the issuance of a writ of attachment attachment may also be issued ex parte.
(O-W-I)
Contents of the order of attachment
1. The court issues the Order granting the
application; It must require the sheriff of the court to attach so
2. The Writ of attachment is issued pursuant to much of the property in the Philippines of the party
the order granting the writ; and against whom it is issued, not exempt from
3. The writ is Implemented. execution, as may be sufficient to satisfy the

2022 GOLDEN NOTES
Remedial Law
applicant’s demand, unless such party makes 3. The defendant is a resident of the Philippines
deposit or gives a bond in an amount equal to that Temporarily Absent therefrom
fixed in the order, which may be the amount 4. The defendant is a Non-resident of the
sufficient to satisfy the applicant’s demand or the Philippines; or
value of the property to be attached as stated by the 5. The action is one in Rem or Quasi in rem (Sec. 5,
applicant, exclusive of costs. (Sec. 2, Rule 57, ROC as Rule 57, ROC as amended)
amended)
NOTE: Mere change in the name of the plaintiff in
NOTE: Several writs may be issued at the same time the amended complaint does not affect the validity
to the sheriffs of the courts of different judicial of the attachment. (Tan, 2013)
regions.
Q: Alfred filed an action against Banjo for
RULE ON PRIOR OR CONTEMPORANEOUS collection of sum of money with an ex-parte
SERVICE OF SUMMONS application for a writ of preliminary attachment
which was granted by the trial court. A notice of
GR: The writ of attachment is implemented by the garnishment was served by the sheriff upon the
sheriff who shall make a levy on attachment bank and summons was subsequently served
pursuant to the writ issued. However, no levy shall upon Banjo. Banjo then filed a motion to
be allowed unless preceded or contemporaneously dissolve the writ of preliminary attachment on
accompanied by: the ground that the court did not acquire
jurisdiction over his person as the writ was
1. Service of summons; served ahead of the summons. Should the
2. Copy of the complaint; motion be granted? (2005 BAR)
3. Application for attachment;
4. Affidavit and Bond of the applicant; and A: NO. The fact that the writ of preliminary
5. Order and writ of attachment (Sec.5, Rule 57, attachment was served ahead of the summons did
ROC as amended) not affect the jurisdiction of the court over his
person. It makes the writ unenforceable; however,
NOTE: Writ of preliminary attachment may be all that is required is to re-serve the writ.
granted and issued even before summons is served
upon the defendant. However, the writ may not be NOTE: Where the writ of preliminary attachment
enforced and may not be validly implemented had already been implemented, the subsequent
unless preceded by a service of summons upon the service of summons does not confer a retroactive
defendant, or simultaneously accompanied by acquisition of jurisdiction over her person because
service of summons, a copy of the complaint, the the law does not allow for retroactivity of a belated
application for attachment, the order of attachment service. (Torres v. Satsatin, G.R. No. 166759, 25 Nov.
and the attachment bond. (Davao Light & Power Co., 2009)
Inc. v. CA, G.R. No. 93262, 29 Dec. 1991) (2012, 2014
BAR) Q: Katy filed an action against Tyrone for
collection of the sum of P1 Million in the
XPNs: Instances when prior or contemporaneous Regional Trial Court, with an ex-parte
service of summons does not find application (Pe-S- application for a writ of preliminary
Ta-N-RQ) attachment. Upon posting of an attachment
bond, the court granted the application and
1. Summons could not be served Personally issued a writ of preliminary attachment.
despite diligent efforts
2. Summons could not be served by substituted Apprehensive that Tyrone might withdraw his
service despite diligent efforts savings deposit with the bank, the sheriff
immediately served a notice of garnishment on

the bank to implement the writ of preliminary MANNER OF ATTACHING REAL AND PERSONAL
attachment. The following day, the sheriff PROPERTY; WHEN PROPERTY ATTACHED IS
proceeded to Tyrone's house and served him the CLAIMED BY THIRD PERSONS
summons, with copies of the complaint
containing the application for writ of Duty of Sheriff
preliminary attachment, Katy's affidavit, order
of attachment, writ of preliminary attachment The sheriff enforcing the writ shall without delay
and attachment bond. and with all reasonable diligence attach, to await
judgment and execution in the action, only so much
Within 15 days from service of the summons, of the property in the Philippines of the party
Tyrone filed a motion to dismiss and to dissolve against whom the writ is issued, not exempt from
the writ of preliminary attachment on the execution, as may be sufficient to satisfy the
following grounds: (i) the court did not acquire applicant’s demand, unless the former makes a
jurisdiction over his person because the writ deposit with the court from which the writ is issued,
was served ahead of the summons; (ii) the writ or gives a counter-bond executed to the applicant, in
was improperly implemented; and (iii) said writ an amount equal to the bond fixed by the court in
was improvidently issued because the the order of attachment or to the value of the
obligation in question was already fully paid. property to be attached, exclusive of costs.
Resolve the motion with reasons. (2005 BAR)
NOTE: No levy on attachment pursuant to the writ
A: The motion to dismiss and to dissolve the writ of shall be enforced unless it is preceded, or
preliminary attachment should be denied. contemporaneously accompanied, by service of
summons, together with a copy of the complaint, the
1. The fact that the writ of attachment was served application for attachment, the applicant’s affidavit
ahead of the summons did not affect the and bond, and the order and writ of attachment, on
jurisdiction of the court over his person. It the defendant within the Philippines. (Sec. 5, Rule
makes the writ, unenforceable. (Sec. 5, Rule 57, 57, ROC as amended) (2005 BAR)
ROC as amended) However, all that is needed to
be done is to re-serve the writ. (Onate v. Manner of attaching real and personal property
Abrogar, G.R. No. 197393, 23 Feb. 1985)
Real and personal property shall be attached by the
2. The writ was improperly implemented. Serving sheriff executing the writ in the following manner:
a notice of garnishment, particularly before
summons is served, is not proper. It should be a 1. Real property, growing crops thereon, or
copy of the writ of attachment that should be interest therein –
served on the defendant, and a notice that the
bank deposits are attached pursuant to the writ. a. By filing with the Registry of Deeds:
(Sec. 7(d), Rule 57, ROC as amended) i. A copy of the order granting the
application;
3. The writ was improvidently issued if indeed it i. A description of the property attached;
can be shown that the obligation was already ii. A notice that it is attached, or that such
fully paid. The writ is only ancillary to the main real property and any interest therein
action. (Sec. 13, Rule 57, ROC as amended) held by or standing in the name of such
other person are attached; and
The alleged payment of the account cannot serve as
a ground for resolving the improvident issuance of b. By leaving a copy of such order,
the writ, because this matter delves into the merits description, and notice with the occupant
of the case and requires full-blown trial. Payment, of the property, if any, or with such other
however, serves as a ground for a motion to dismiss. person or his agent if found within the

2022 GOLDEN NOTES
Remedial Law
province. (Sec. 7(a), Rule 57, ROC as 5. Interest in the estate of a decedent –
amended) (2005, 2008 BAR)
By serving copy of writ and notice that the said
NOTE: Where the property has been interest is attached upon the:
brought under the operation of either the a. Executor or administrator of estate or
Land Registration Act or the Property another personal representative of the
Registration Decree, the notice shall decedent;
contain a reference to the number of the b. Clerk of Court where estate is being settled;
certificate of title, the volume and page in and
the registration book where the certificate c. Heir, devisee, or legatee;
is registered, and the registered owner or
owners thereof. (Ibid.) 6. Property in custodia legis (1999 BAR) –
2. Personal property capable of manual A copy of the writ shall be filed with the proper
delivery – court or quasi-judicial agency and notice of the
attachment shall be served upon the custodian
By the sheriff taking into custody and safely of such property. (Sec. 7, Rule 57, ROC)
keeping the property after issuing the
corresponding receipt therefor. Salary subject of attachment
3. Stocks, shares or interest in stocks or shares It can only be attached at the end of the month or on
of any corporation or company – payday provided by contract or law, as prior
thereto; the same do not constitute money “due” to
By leaving with the president or managing the debtor from his employer. Furthermore, if the
agent thereof: employer is the Government, before payday, such
a. A copy of the writ; and funds are public funds and are exempt from
b. A notice stating that the stock or interest of attachment or execution. (Garcia v. Castillo, 43 Phil
the party against whom the attachment is 364; Regalado, 2017)
issued, is attached in pursuance of such
writ; Wages due to a laborer
4. Debts and credits, bank deposits, financial GR: The laborer's wage shall not be subject to
interests, royalties, commission and other execution or attachment. (Art. 1708, NCC)
personal property not capable of manual
delivery – XPN: For debts incurred for food, shelter, clothing
and medical attendance. (Gaa v. CA, G.R. No. L-44169,
By leaving with the person owing debts or 03 Dec. 1985)
having in his possession and control, such
credits or other personal property, or with his NOTE: Art. 1708 used the word “wage" and not
agent: "salary" in relation to "laborer" when it declared
a. A copy of the writ; and what are to be exempted from attachment and
b. A notice that the debts owing by him to the execution. The term “wages” as distinguished from
party against whom attachment is issued "salary", refers to the compensation for manual
and the credits and other personal labor, skilled or unskilled, paid at stated times, and
property in his possession, or under his measured by the day, week, month, or season,
control, belonging to said party, are whereas the term "salary" denotes a higher degree
attached in pursuance of such writ of employment, or a superior grade of services, and
implies a position of office. By contrast, the term
“wages " indicates considerable pay for a lower and

less responsible character of employment, while Preference between duly registered attachment
"salary" is suggestive of a larger and more by levy and lis pendens
important service. (35 Am. Jur., 496)
Preference is given to a duly registered attachment
Government funds over a subsequent notice of lis pendens, even if the
beneficiary of the notice acquired the subject
1. If government enters into commercial property before registration of the attachment. Such
business, it abandons its sovereign capacity notice does not establish a lien or an encumbrance
and is to be treated like any other corporation. on the property affected. As the name suggests, a
Consequently, its funds may be subject to a duly notice of lis pendens with respect to a disputed
issued writ of garnishment or writ of execution. property is intended merely to inform third persons
that any of their transactions in connection
2. If intended for a public purpose, public funds therewith if entered into subsequent to the notation
of a municipality are not subject to levy or would be subject to the result of the suit. (Du v.
execution and such funds cannot be disbursed Stronghold Insurance Co., Inc., G.R. No. 156580, 14
without a lawful appropriation or statutory June 2004)
authority as required by law. Even when the
immunity of state is relaxed, the power of the Preference between duly registered attachment
court ends when judgment is rendered, and by levy and prior sale of property
state is at liberty to determine whether or not
to appropriate funds for the satisfaction of the A levy on execution duly registered takes
judgment. (Malong v. PNR, et al., G.R. No. L- preference over a prior unregistered sale; and that
49930, 07 Aug. 1985; PNB v. CIR, G.R. No. L- even if the prior sale is subsequently registered
032667, 31 Jan. 1978; Regalado, 2017) before the sale in execution but after the levy was
duly made, the validity of the execution sale should
Q: In a case, the property of an incompetent be maintained, because it retroacts to the date of the
under guardianship was in custodia legis. Can it levy; otherwise, the preference created by the levy
be attached? Explain. (1999 BAR) would be meaningless and illusory. (Defensor v.
Brillo, G.R. No. L-7255, 21 Feb. 1956)
A: YES. In such case, a copy of the writ of attachment
shall be filed with the proper court and the notice of Remedies available if the property is being
the attachment shall be served upon the custodian claimed by third person (T-I-I) (2000 BAR)
of such property.
1. Terceria or third-party claim - The third
Principle of Seniority of Liens person whose property was levied on must
make an affidavit of his title thereto, or right to
Where property attached by the judgment creditor the possession thereof stating the grounds of
had previously been mortgaged, the judgment such right and title and must serve such
creditor’s lien is inferior to that of the mortgagee, affidavit upon the sheriff while the latter has
which must first be satisfied in the event of possession of the attached property and a copy
foreclosure. In reality, what was attached by the thereof upon the attaching property;
judgment creditor was merely the judgment
debtor’s right or equity of redemption. (Top Rate GR: The sheriff is not bound to keep the
International Services, Inc. v. IAC, G.R. No. 67496, 07 property.
July 1986)
XPN: The sheriff is bound to keep the property
when the attaching party, on demand of the
sheriff, files a bond approved by the court to

2022 GOLDEN NOTES
Remedial Law
indemnify the third-party claimant in a sum not Claim for damages may be enforced against the
less than the value of the property levied upon. bond
NOTE: The timing of the filing of the third-party The sheriff shall not be liable for damages for the
claim is important because the timing taking or keeping of such property, to any such
determines the remedies that a third party is third-party claimant, if such bond shall be filed.
allowed to file. A third-party claimant under No claim for damages for the taking or keeping of
Section 16 of Rule 39 may vindicate his claim to the property may be enforced against the bond
the property in a separate action since unless the action therefor is filed within 120 days
intervention is no longer allowed upon from the date of the filing of the bond.
rendition of judgment. A third-party claimant
under Section 14 of Rule 57, on the other hand, The claimant or any third person is not prevented
may vindicate his claim to the property by from vindicating his claim to the property or
intervention because he has a legal interest in prevent the attaching party from claiming damages
the matter in litigation. (Fort Bonifacio against a third-party claimant who filed a frivolous
Development Corporation v. Yllas Lending or plainly spurious claim, in the same or a separate
Corporation, G.R. No. 158997, 06 Oct. 2008) action.
2. Independent action to recover his property; Sale of property covered by a writ of preliminary
or attachment before entry of judgment
3. Motion for intervention – which is available GR: Property may not be sold. A writ of preliminary
only before judgment is rendered. (Ong v. attachment is a provisional remedy, and its issuance
Tating, G.R. No. L-61042, 15 Apr. 1987) does not have the effect of a final judgment over the
property attached.
Q: Andrei's real property is being attached by
the sheriff in a civil action for damages against XPN: An attached property may be sold after levy on
Bernard. Andrei claims that he is not a party to attachment and before entry of judgment whenever
the case; that his property is not involved in said it shall be made to appear to the court in which the
case; and that he is the sole registered owner of action is pending, upon hearing with notice to both
said property. Under the Rules of Court, what parties, that the attached property is perishable or
must Andrei do to prevent the sheriff from that the interests of all the parties to the action will
attaching his property? (2000 BAR) be subserved by the sale of the attached property.
(Sec. 11, Rule 57, ROC as amended; China Banking
A: If the real property has been attached, the Corporation v. Asian Corporation and Development
remedy is to file a third-party claim. The third-party Corporation, G.R. No. 158271, 08 Apr. 2008; Riano,
claimant should make an affidavit of his title to the 2019)
property attached stating the grounds of his title
thereto and serve such affidavit upon the sheriff DISCHARGE AND THE COUNTER-BOND
while the latter has possession of the attached
property and a copy thereof upon the attaching A party whose property is sought to be attached
party. The third-party claimant may also intervene may prevent the enforcement of the writ of
or file a separate action to vindicate his claim to the attachment:
property involved and secure the necessary reliefs
such as preliminary injunction which will not be 1. By depositing with the court from which the
considered as interference with a court of writ was issued;
coordinate jurisdiction.
2. By giving a counter-bond executed to the
applicant, in an amount equal to the bond fixed

by the court in the order of attachment or to the motion by counter-affidavits or other evidence
value of the property to be attached, exclusive in addition to that on which the attachment was
of costs (Sec. 5, Rule 57, ROC as amended); or made. (Sec. 13, Rule 57, ROC as amended)
3. By raising the defense that the property NOTE: After due notice and hearing, the court shall
covered is exempt from execution. (Ibid.) order the setting aside or the corresponding
discharge of the attachment. (Sec. 13, Rule 57, ROC
A writ of attachment already enforced may be as amended) An ex parte discharge or suspension of
discharged in the following ways: the attachment is a disfavor to the orderly
administration of justice and nullifies the
1. File a motion to discharge the attachment, make underlying role and purpose of preliminary
a cash deposit and file a counter-bond executed attachment in preserving the rights of parties as an
to the attaching party equal to the amount fixed ancillary remedy. (Peroxide Philippines Corp., v. CA,
by the court in the order of attachment, et al., G.R. No. 92813, 21 July 1991)
exclusive of the costs;
Discharge of order of attachment on other
NOTE: If the discharge is sought with respect to grounds
a particular property only, the counter-bond
shall be equal to the value of that property only 1. The party whose property has been ordered
as determined by the court. A notice of the attached may file a motion to quash the order by
deposit shall be served on the attaching party. filing a motion with the court in which the
The court shall, after due notice and hearing, action is pending, before or after levy or even
order the discharge of attachment. after the release of the attached property, for an
order to set aside or discharge the attachment
Should the counter-bond for any reason be on the ground that the same was improperly or
found to be or become insufficient, and the irregularly issued or enforced, or that the bond
party furnishing the same fail to file an is insufficient. If the attachment is excessive, the
additional counter-bond, the attaching party discharge shall be limited to the excess.
may apply for a new order of attachment.
2. If the motion be made on affidavits on the part
2. By filing a motion to set aside or discharge the of the movant but not otherwise, the attaching
bond without the need to file a counter-bond party may oppose the motion by counter-
based on the following grounds: affidavits or other evidence in addition to that
on which the attachment was made. After due
a. The attachment was improperly or notice and hearing, the court shall order the
irregularly issued; setting aside or the corresponding discharge of
b. The bond is insufficient; the attachment if it appears that it was
c. The attachment is excessive, wherein the improperly or irregularly issued or enforced, or
discharge shall be limited to the excess (Sec. that the bond is insufficient, or that the
13, Rule 57, ROC as amended); attachment is excessive, and the defect is not
d. The property is exempt from execution; or cured forthwith. (Sec. 13, Rule 57, ROC as
e. Judgment is rendered against the attaching amended)
party. (Sec. 19, Rule 57, ROC as amended)
NOTE: Should the counter-bond for any reason be
The motion may be filed (i) before levy, (ii) after found to be or become insufficient, and the party
levy, or (iii) even after the release of the furnishing the same fail to file an additional counter-
attached property. If the motion be made on bond, the attaching party may apply for a new order
affidavits on the part of the movant but not of attachment.
otherwise, the attaching party may oppose the

2022 GOLDEN NOTES
Remedial Law
Counterbonds A: The judgment against the surety is not sound if

due notice was not given to him of the application
Counterbonds are replacements of the property for damages. Moreover, the judgment against the
formerly attached, and just as the latter, may be surety cannot exceed the amount of its counterbond
levied upon after final judgment. (Security Pacific of P1 million.
Assurance Corporation v. Tria-Infante, G.R. No.
144740, 31 Aug. 2005) Duty of the surety or sureties on counterbond
when the judgment becomes executory
NOTE: The mere posting of the counter-bond does
not automatically discharge the writ of attachment. When the judgment has become executory, the
It is only after the hearing and after judge orders the surety or sureties on any counter-bond given to
discharge of attachment that the same is properly secure the payment of the judgment shall become
discharged. (Security Pacific Assurance Corporation charged on such counter-bond and bound to pay the
v. Tria-Infante, G.R. No. 144740, 31 Aug. 2005) judgment obligee upon demand the amount due
under the judgment, which amount may be
Effects if the judgment was rendered in favor of recovered from such surety or sureties after notice
the party against whom attachment was issued and summary hearing in the same action. (Sec. 17,
Rule 57, ROC as amended)
1. The order of attachment will be discharged and
all the proceeds of sales and money collected or Q: After his properties were attached, defendant
received by the sheriff, under the order of Porfirio filed a sufficient counterbond. The trial
attachment, and all property attached court discharged the attachment. Nonetheless,
remaining in any such officer’s hands, shall be Porfirio suffered substantial prejudice due to
delivered to the party against whom the unwarranted attachment. In the end, the
attachment was issued (Sec. 19, Rule 57, ROC as trial court rendered a judgment in Porfirio's
amended); favor by ordering the plaintiff to pay damages
because the latter was not entitled to the
2. The whole sum deposited must be refunded to attachment. Porfirio moved to charge the
him or his assignee if the party against whom plaintiff's attachment bond. The plaintiff and his
attachment had been issued has deposited sureties opposed the motion, claiming that the
money instead of giving counter-bond. (Sec. 18, filing of the counter-bond had relieved the
Rule 57, ROC as amended) plaintiff's attachment bond from all liability for
damages. Should Porifio’s motion be granted?
Q: Roy obtained a writ of preliminary
attachment upon a bond of P1 million. The writ A: YES, Porfirio’s motion to charge plaintiff’s
was levied on Ronald's property, but it was attachment bond is proper and can be granted. It is
discharged upon the posting by Ronald of a not correct to contend that Porfirio’s filing of a
counter-bond in the same amount of P1 million. counterbond constitutes a waiver of his right to
After trial, the court rendered judgment finding proceed against the attachment bond for the
that Roy had no cause of action against Ronald damages he suffered from the unwarranted
and that he had sued out the writ of attachment attachment. It is a condition inter alia of the
maliciously. Accordingly, the court dismissed applicant’s attachment bond that he will pay all the
the complaint and ordered Roy and its surety to costs which may be adjudged to the adverse party
pay jointly to Ronald P1.5 million as actual and all damages which the latter may sustain by
damages, P0.5 million as moral damages and reason of the attachment, if the court shall finally
P0.5 million as exemplary damages. Evaluate adjudge that the applicant was not entitled thereto.
the soundness of the judgment from the point of (DM Wenceslao and Associates, Inc. v. Readycon
view of procedure. (2002 BAR) Trading and Construction Corp., G.R. No. 156104, 29
June 2004)

Damages for a wrongful attachment 1. Payment to judgment obligee the proceeds of

all sales of perishable or other property in
Damages may be awarded on account of improper, pursuance of the order of the court or so much
irregular or excessive attachment. necessary to satisfy the judgment;
The attachment defendant may recover actual 2. If any balance remains, selling so much of the
damages even without the proof that the property, real or personal, as may be necessary
attachment plaintiff acted in bad faith in obtaining to satisfy the judgment;
the attachment. However, if it is alleged and
established that the attachment was not merely 3. Collecting from all persons having possession
wrongful but also malicious, the attachment of credits belonging to the judgment obligor or
defendant may recover moral damages and debts belonging to the latter at the time of the
exemplary damages. (Sps. Yu v. Ngo Yet te, G.R. No. attachment and paying the proceeds to
155868, 06 Feb. 2007) judgment obligee (Sec. 15, Rule 57, ROC as
amended);
NOTE: Damages may be claimed even by the losing
party where the attachment caused him damage 4. Ordinary execution (Sec. 16, Rule 57, ROC as
because the attachment was improper, irregular or amended)
excessive. An improper, irregular or excessive
attachment is not validated by the fact that the NOTE: If it remains unsatisfied, recovery may be
attaching party prevailed in the main action. (1999, had on the counter-bond upon demand and notice
2002 BAR) and hearing to surety. (Sec. 17, Rule 57, ROC as
amended)
Application for damages
When the property attached is not sufficient to
The application for damages must be filed: satisfy the judgment
1. Before the trial; Any balance shall remain due and the sheriff must
2. Before appeal is perfected; or proceed to collect such balance as upon ordinary
3. Before the judgment becomes executory. execution.
If the case is on appeal and the judgment of the When there is excess after applying the
appellate court is favorable to the party against proceeds thereof
whom the attachment was issued, he must claim
damages sustained during the pendency of the Whenever judgment has been paid off, the sheriff,
appeal by filing an application with the appellate upon reasonable demand, must return to the
court with due notice to the attaching party and his judgment obligor the attached property remaining
surety of sureties. (Sec. 20, Rule 57, ROC as amended) in his hands, and any proceeds of the sale of the
property attached not applied to the judgment. (Sec.
SATISFACTION OF JUDGMENT 16, Rule 57, ROC as amended)
OUT OF PROPERTY ATTACHED
When the party against whom attachment had
If judgment is in favor of the attaching party and been issued deposited money instead of giving
execution has issued thereon, the sheriff may cause counter-bond
the judgment to be satisfied out of the property
attached, if it be sufficient for that purpose, in the Where the party against whom attachment had
following manners: been issued has deposited money instead of giving
counter-bond, it shall be applied under the direction
of the court to the satisfaction of any judgment

2022 GOLDEN NOTES
Remedial Law
rendered in favor of the attaching party, and after Distinction between attachment and
satisfying the judgment, the balance shall be garnishment (1999 BAR)
refunded to the depositor or his assignee. (Sec. 18,
Rule 57, ROC as amended) ATTACHMENT GARNISHMENT
A levy on debts due the
PRELIMINARY ATTACHMENT COMPARED WITH judgment obligor or
GARNISHMENT AND LEVY ON EXECUTION A provisional remedy defendant and other
that effects a levy on credits, including bank
KINDS OF ATTACHMENT (2012 BAR) property of a party as deposits, royalties and
Preliminary Attachment security for the other personal
It is one issued at the commencement of the satisfaction of any property not capable
action or at any time before entry of the judgment judgment that may be of manual delivery
as security for the satisfaction of any judgment recovered. under a writ of
that may be recovered in the cases provided for execution or a writ of
by the rules. The court takes custody of the attachment.
property of the party against whom the Money, stocks, credits
attachment is directed. and other incorporeal
properties which
Corporeal property in
NOTE: This is the regular form of attachment belong to the judgment
the possession of the
which refers to corporeal property in the debtor but are in the
judgment debtor.
possession of the party. (Regalado, 2017) possession or under
Garnishment the control of a third
A kind of attachment in which the attaching party person.
seeks to subject his claim either the property of
the adverse party in the hands of a third person
called the garnishee, or money which the third C. PRELIMINARY INJUNCTION (RULE 58)
person owes the adverse party.
NOTE: Garnishment does not involve the actual

PRELIMINARY INJUNCTION
seizure of the property which remains in the
hands of the garnishee. It refers to money, stocks,
It is an order granted at any stage of an action or
credits and other incorporeal property which
proceeding prior to the judgment or final order,
belong to the party but are in the possession or
requiring a party or a court, agency or a person to:
under control of a third person. Garnishment
does not lie against the funds of the regular
1. Refrain from a particular act or acts
departments or offices of the Government, but
(Preliminary prohibitory injunction); or
funds of public corporations are not exempt from
2. To require the performance of a particular act
garnishment. (PNB v. Palaban, et al., G.R. No. L-
or acts. (Preliminary mandatory injunction)
33112, 15 June 1978; Regalado, 2017)
(Sec. 1, Rule 58, ROC as amended)
Levy on execution
The process after judgment has become Requisites for issuance of writ of preliminary
executory by which the property of the judgment
injunction whether mandatory or prohibitory
obligor is taken into the custody of the court
injunction
before the sale of the property on execution for
the satisfaction of a final judgment.
1. The applicant must have a clear and
Pursuant to a writ of execution, the sheriff or an
unmistakable right, that is a right in esse;
officer of the court appropriates the property of 2. There is material and substantive invasion of
the judgment debtor as a preliminary step to the
such right;
sale on execution of the property.

3. There is an urgent need to issue the writ in confused with the provisional remedy of
order to prevent irreparable injury to the preliminary injunction, the sole object of which is to
applicant; and preserve the status quo until the merits can be
4. No other ordinary, speedy, and adequate heard. (Urbanes v. CA, G.R. No. 117964, 28 Mar. 2001)
remedy exists to prevent the infliction of
irreparable injury. (Ngo v. Allied Banking Purpose of preliminary injunction
Corporation, G.R. No. 177420, 06 Oct. 2010;
Marquez v. Sanchez, G.R. No. 141849, 13 Feb. To preserve and protect certain rights and interests
2007) during the pendency of an action. Its objective is to
preserve the status quo until the merits of the case
Nature of preliminary injunction (2006, 2009 can be fully heard. (Pineda v. CA, G.R. No. 105562 27
BAR) Sept. 1993; Castro v. Dela Cruz, G.R. No. 190122, 10
Jan. 2011)
It is an ancillary or preventive remedy where a court
requires a person, a party or even a court or tribunal It is to be resorted to only when there is a pressing
either to refrain from (prohibitory) or to perform necessity to avoid injurious consequences which
(mandatory) particular acts during the pendency of cannot be remedied under any standard of
an action. It is merely a temporary remedy subject compensation. The application of the writ rests
to the final disposition of the principal action. upon an alleged existence of an emergency or of a
(Dungog v. Court of Appeals, G.R. No. 139767, 05 Aug. special reason for such an order before the case can
2003) be regularly heard, and the essential conditions for
granting such temporary injunctive relief are that
NOTE: As a rule, courts cannot enjoin an agency the complaint alleges facts which appear to be
from performing an act within its prerogative, sufficient to constitute a cause of action for
except when in the exercise of its authority, it injunction and that on the entire showing from both
gravely abused or exceeded its jurisdiction. sides, it appears, in view of all the circumstances,
Administrative decisions on matters within the that the injunction is reasonably necessary to
executive jurisdiction can be set aside on proof of protect the legal rights of plaintiff pending the
grave abuse of discretion, fraud, or error of law, and litigation. (Sps. Estares v. Court of Appeals, G.R.
in such cases, injunction may be granted. (Republic No.144755, 08 June 2005)
v. Principalia Management and Peronnel
Consultants. Inc., G.R. No. 198426, 02 Sept. 2015) NOTE: Status quo is the last actual, peaceable and
uncontested status which precedes a controversy. It
A petition for a preliminary injunction is an is the situation existing at the time of the filing of the
equitable remedy, and one who comes to claim for case. (Riano, 2019; Preysler Jr. v. Court of Appeals,
equity must do so with clean hands. (Palm Tree G.R. No. 158141, 11 July 2006)
Estates, Inc. and Belle Air Golf and Country Club, Inc.
v. PNB, G.R. No. 159370, 03 Oct. 2012) Showing of Clear Legal Right
NOTE: The action for injunction is distinct from the A preliminary injunctive writ under Rule 58 issues
ancillary remedy of preliminary injunction which only upon a showing of the applicant’s “clear legal
cannot exist except only as part of an incident of an right” being violated or under threat of violation by
independent action or proceeding. As a matter of the defendant. “Clear legal right,” within the
course, in an action for injunction, the auxiliary meaning of Rule 58, contemplates a right “clearly
remedy of preliminary injunction, whether founded in or granted by law.” (Executive Secretary
prohibitory or mandatory, may issue. Under the v. Forerunner Multi Resources, Inc., G.R. No. 199324,
present state of the law, the main action of 07 Jan. 2013)
injunction seeks a judgment embodying a final
injunction which is distinct from and should not be

2022 GOLDEN NOTES
Remedial Law
NOTE: A preliminary injunction may be granted injunction is to be directed are violative of said right.
only where the plaintiff appears to be clearly There is no proof showing that the subject portion
entitled to the relief sought and has substantial of Palaui Island has been declared alienable and
interest in the right sought to be defended. While disposable when Rev. Cortez started to occupy the
the existence of the right need not be conclusively same, therefore, the land must be considered as still
established, it must be clear. (Power Sites and Signs, inalienable public domain and therefore not a
Inc. v. United Neon G.R. No. 163406, 24 Nov. 2009) proper subject of possession. Respondents merely
relied on such ‘recognition’ of possible private
Q: Rev. Cortez, a missionary, put up an rights. (Republic v. Cortez, GR. No. 197472, 07 Sept.
orphanage and school for indigenous people at 2015)
Palaui Island in Cagayan, cleared and developed
for agricultural purposes in order to support his Quantum of evidence required in a preliminary
charitable, humanitarian and missionary works. injunction
However, then President Marcos issued
Proclamation No. 201 reserving for military Prima facie evidence is needed to establish the
purposes a parcel of the public domain situated applicant’s rights or interests in the subject matter
in Palaui Island. More than two decades later, of the main action because the applicant is required
Proclamation No. 447 was issued by then to show only that he has an ostensible right to the
President Ramos declaring the whole Palaui final relief prayed for in his complaint. (Republic v.
Island and the surrounding waters as marine Evangelista, G.R. No. 156015, 11 Aug. 2005)
reserve. Rev. Cortez filed a Petition for
Injunction with Prayer for the Issuance of a Writ NOTE: Findings of the trial court granting or
of Preliminary Mandatory Injunction against the denying a petition for a writ of preliminary
Commanding Officer of the Philippine Naval injunction based on the evidence on record are
Command Cagayan for alleged disturbance of merely provisional until after the trial on the merits
his peaceful and lawful possession of the said of the case shall have been concluded. (Sps. Nisce v.
50-hectare portion of Palaui Island when they Equitable-PCI Bank, G.R. No. 167434, 19 Feb. 2007)
were ordered to vacate the area. In the
application, it was alleged that at the time, TEMPORARY RESTRAINING ORDER (TRO)
respondents had been in open, continuous,
exclusive and notorious possession of the It is an interlocutory order issued as a restraint to
subject parcels of land for at least thirty (30) the defendant to preserve the status quo on the
years and became its owners by prescription. ground of irreparable injury and is granted to a
Rev. Cortez merely submitted a sketch map as party until the hearing of the application for
evidence of his claimed area. Should the writ be preliminary injunction which cannot be issued ex
granted? parte. (Bacolod Water District v. Labayen, G.R. No.
157494, 10 Dec. 2004)
A: NO. Rev. Cortez failed to conclusively establish
his claimed right over the subject portion of Palaui NOTE: The grant, denial or lifting of restraining
Island as would entitle him to the issuance of a final order does not in any way preempt the court’s
injunction. Two requisites must concur for power to decide the issue in the main case. (DFA and
injunction to issue: (1) there must be a right to be BSP v. Falcon and BCA Int’l Corp., G.R. No. 176657, 01
protected and (2) the acts against which the Sept. 2010)

Preliminary Injunction vs. TRO
PRELIMINARY INJUNCTION TEMPORARY RESTRAINING ORDER

Duration is non-extendible (Sec. 5, Rule 58):
If issued by RTC/MTC – 20 days from service on the person

sought to be enjoined;
Effective during the pendency of the action If issued by CA – 60 days from service on the party sought to be
unless earlier dissolved enjoined which is non-extendible, (2006 BAR);
NOTE: The trial court, the Court of If issued by SC –Effective until further orders.
Appeals, the Sandiganbayan or the Court of
Tax Appeals that issued a writ of If the matter is of extreme urgency and the applicant will suffer
preliminary injunction against a lower grave injustice and irreparable injury, the judge may issue an ex-
court, board, officer, or quasi-judicial parte TRO effective for 72 hours from issuance but shall comply
agency shall decide the main case or with the rule on contemporaneous service of summons unless
petition within 6 months from the issuance the same could not be served personally or by substituted
of the writ. (Sec. 5, Rule 58, as amended by service despite diligent efforts. The period may be extended for
A.M. No. 07-7-12-SC) a period not exceeding 20 days including the 72 hours already
given. (Sec.5, Rule 58)
NOTE: Prohibition against the renewal applies only if the same

is sought under and by reason of the same ground for which it
was originally issued. (Regalado, 2017)
Restrains or requires the performance of
Maintain status quo ante
particular acts.
GR: Notice and hearing is required.
XPN: A TRO effective for 72 days from issuance, may be issued
Notice and hearing, which shall be
ex-parte under the following instances:
conducted within 24 hours after the
sheriff’s return of service (Sec 4(d), Rule
If great or irreparable injury would result to the applicant
58), is always required. (Sec. 5, Rule 58)
before the matter can be heard on notice;
(2001 BAR)
If the matter is of extreme urgency and the applicant will suffer

grave injustice and irreparable injury.
Can be issued to compel the performance
Cannot be issued to compel the performance of an act
of an act
Who may grant preliminary injunction STATUS QUO ORDER (2006 BAR)
1. Supreme Court in its original and appellate It is resorted to when the projected proceedings in
jurisdiction; the case made the conservation of the status quo
2. Court of Appeals; desirable or essential but the affected party neither
3. Trial Court in cases pending before it; sought such relief nor did the allegations in his
4. Sandiganbayan; pleading sufficiently make out a case for a TRO.
5. Court of Tax Appeals (Sec.2, Rule 58, ROC, as
amended)

2022 GOLDEN NOTES
Remedial Law
TRO vs. Status Quo Order b. Adverse party is a resident but is

temporarily absent from the Philippines; or
TRO Status Quo Order c. Adverse party is a non-resident of the
Issued motu proprio on Philippines.
Summary hearing equitable
considerations. Q: May the RTC issue an injunction without the
In the nature of a cease posting of a bond? (2006 BAR)
Prevents the doing of and desist order since it
an act. neither directs the doing A: YES. If the injunction issued is a final injunction.
or undoing of acts. Generally, however, a preliminary injunction may
Requires the posting not be issued without the posting of a bond, unless
of a bond, unless exempted by the trial court or otherwise provided
exempted by court. Does not require the for by law.
(Garcia v. Mojica, G.R. posting of a bond. (Ibid.)
No. 139043, 10 Sept. Q: Reta is the owner and operator of Acquarius
1999) Container Yard (ACY). ACY's operation as a
container yard outside the customs territory has
Requisites of writ of preliminary injunction or been approved by the BOC in 2006. On January
temporary restraining order (2006, 2010 BAR) 9, 2009, Reta entered into a Memorandum of
Agreement (MOA) with the BOC for the free use
1. Verified application stating the grounds for its of his container yard, ACY, located in Davao City
issuance (Sec. 4, Rule 58, ROC, as amended); as the designated examination area for the
container vans in the Port of Davao for a period
2. Applicant must establish: i) the existence of a of 25 years. The MOA also provided that the
right that must be protected and ii) an urgent parties may revoke it for cause at any time. BOC
and paramount necessity for the writ to prevent claimed that on February 26, 2010, Reta closed
serious damage; the container yard and barred customs
examiners from entering the premises. On the
3. Applicant must establish that there is a need to same date, Atty. Castigador informed Reta,
restrain the commission or continuance of the through a letter, of his intention to conduct the
acts complained of and if not enjoined would examination of the container vans at the
work injustice to the applicant; Philippine Ports Authority (PPA) premises in
Sasa, Davao City, and to reexamine the MOA as
4. Applicant must post a bond, unless exempted its purpose no longer exists. This prompted Reta
by the court. This bond is executed in favor of to file a Complaint with Application for
the person enjoined to answer for all damages Preliminary Injunction and Prayer for a
which the latter may sustain by reason of Temporary Restraining Order against
injunction or restraining order if the court petitioners. Reta claimed that after the BOC
should finally decide that the applicant was not agreed to use ACY as the designated
entitled to the writ or order; and examination area, he invested in various
machineries and equipment for the examination
5. Notice and hearing are required. and inspection of container vans. He denied
closing the container yard; he alleged that it was
GR: Contemporaneous service of summons; Atty. Castigador who directed the stoppage of
the hauling and scanning of the container vans
XPNs: in ACY. The Executive Judge of the RTC issued a
temporary restraining order (TRO) prohibiting
a. Summons could not be served personally or the BOC from removing the container vans in
by substituted service; ACY and directing the BOC to resume its

operations inside ACY. Was it proper for the RTC KINDS OF INJUNCTIONS; KINDS OF TEMPORARY
to issue the writ of preliminary injunction? RESTRAINING ORDERS
A: NO. A writ of preliminary injunction is a Preliminary Injunction vs. Final Injunction

preservative remedy for the protection of
substantial rights and interests. It is not a cause of PRELIMINARY
FINAL INJUNCTION
action itself, but a mere provisional remedy adjunct INJUNCTION
(Sec. 9, Rule 58)
to a main suit. It is granted at any stage of an action (Sec. 1, Rule 58)
or proceeding prior to the judgment or final order, Issued in the judgment
requiring a party or a court, agency or a person to in the case
An order granted at
refrain from a particular act or acts; it may also permanently
any stage of the action
require the performance of a particular act or acts, restraining the
prior to the judgment
in which case it shall be known as a preliminary defendant or making
or final order therein.
mandatory injunction. It may be granted by the the preliminary
court where the action or proceeding is pending. injunction permanent.
amended)
The purpose of injunction is to prevent threatened (Sec. 9, Rule 58, ROC, as
or continuous irremediable injury to the parties amended)
before their claims can be thoroughly studied, and
its sole aim is to preserve the status quo until the Preliminary Injunction vs. Main Action for
merits of the case are fully heard. The issuance of a Injunction
writ of preliminary injunction is governed by Rule
58 of the Rules of Court. PRELIMINARY
INJUNCTION MAIN ACTION FOR
In the instant case, the requisites for the issuance of (ANCILLARY INJUNCTION
a writ of preliminary injunction, as laid down, were REMEDY)
not met. First, Reta has no clear and unmistakable Provisional remedy;
right on the conduct of examination in ACY. The It is not a cause of
conduct of examination in ACY premises is Independent/Primary
action itself but merely
governed by the MOA between Reta and the BOC. It Action
an adjunct to a main
is undisputed any of the parties may revoke it for suit.
cause at any time before the end of its term. On Perpetually
March 5, 2010, BOC has already revoked the MOA Seeks to preserve the restraining or
on the ground of strained relations due to Reta's status quo until the commanding the
closure of the ACY premises. The revocation was merits can be heard. performance of an act
made before the issuance of the assailed RTC Order. after trial.
Second, it follows that there is no substantial or
material invasion of Reta's right. Third, the damage Kinds of Preliminary Injunction
or injury allegedly sustained by Reta is not
irreparable. As set out, the damages or injury PRELIMINARY PRELIMINARY
suffered by the party applying for injunction must PROHIBITORY MANDATORY
be unquantifiable. (Bureau of Customs, et al. v CA- INJUNCTION INJUNCTION
Cagayan de Oro, G.R. 192809, April 26, 2021) To prevent a person To require a person to
from the performance perform a particular
of an act act
The act has already
been performed and
The act has not yet
this act has violated
been performed
the rights of another
(Riano, 2019)

2022 GOLDEN NOTES
Remedial Law
Status quo is preserved Status quo is restored NOTE: It was settled that injunctive reliefs are
preservative remedies for the protection of
Prohibitory Injunction vs. Prohibition substantive rights and interest. Injunction is not a
cause of action in itself, but merely a provisional
PROHIBITORY remedy, an adjunct to a main suit. When the act
PROHIBITION
INJUNCTION sought to be enjoined has become fait accompli, the
Provisional remedy, Special Civil Action, prayer for provisional remedy should be denied.
Rule 58 Rule 65 (Caneland Sugar Corporation v. Alon, G.R. No.
Directed against a 142896, 12 Sept. 2007)
Directed against a
court, tribunal or
party litigant in the Requisites of mandatory injunction
person exercising
action
judicial powers
Prohibition may be on 1. Material and substantial invasion of right;
the ground that the 2. Clear and unmistakable right of complainant;
It does not involve the court against whom the 3. Urgent and paramount necessity for the writ to
jurisdiction of the writ is sought acted prevent serious damages (Bautista v. Barcelona,
court without or in excess of G.R. No. 11885, 29 Mar. 1957);
jurisdiction (Regalado, 4. The effect would not be to create a new relation
2017) between the parties. (Alvaro v. Zapata, G.R. No.
L-56025, 25 Nov. 1982; Regalado, 2017)
Mandatory injunction vs. Mandamus
Instances when mandatory injunction does not
MANDATORY lie
MANDAMUS
INJUNCTION
Provisional remedy, Special Civil Action, 1. To compel cohabitation (Arroyo v. Vasquez, G.R.
Rule 58 Rule 65 No. L-17014, 11 Aug. 1921);
2. Cancellation of attachment (Levy Hermanos v.
Seeking a judgment
Lacson, G.R. No. L-47506, 14 Dec. 1940);
commanding a
Directed to a party 3. Release imported goods pending hearing
tribunal, corporation,
litigant to perform an before the Commissioner of Customs
board, officer or
act in order to restore (Commissioner of Customs v. Cloribel, G.R. No. L-
person to perform a
the last peaceable 19796, 31 Jan. 1967); and
ministerial duty
uncontested status 4. To take property out of the possession or
required to be
preceding the control of one party and place it into that of
performed by law.
controversy. another whose title has not clearly been
established. (Pio v. Marcos, G.R. No. L-27980, 30
amended; Riano, 2019)
Apr. 1974)
Injunction against acts already consummated
WHEN WRIT MAY BE ISSUED;
WHEN WRIT MAY NOT BE ISSUED
GR: Injunction pertains to acts that are being
committed or about to be committed. (Romulo v.
Q: S.P. Corporation filed a complaint for
Yñiguez, G.R. No. 71908, 04 Feb. 1986)
Recovery of Property with application for
temporary restraining order and/or
XPN: If acts complained of are continuing in nature
preliminary injunction against the heirs of Mr. B.
and were in derogation of plaintiff’s rights at the
The case was then raffled to Branch 253 of RTC
outset, preliminary mandatory injunction may be
of Las Piñas. Mr. G, one of the heirs of Mr. B, filed
availed of to restore the parties to the status quo.
an Omnibus Motion praying that another raffle
(Regalado, 2017)
of the case be held because they were not able to

receive any notice of raffle to which S.P. NOTE: If it shall appear from facts shown by
Corporation didn't oppose. S.P. Corporation affidavits or by the verified application that great or
then filed a Motion for Service of Summons by irreparable injury would result to the applicant
Publication on all the heirs of Mr. B except Mr. G before the matter can be heard on notice, the court
because the addresses could not be ascertained may issue ex parte a TRO.
despite diligent inquiry. On the day of the raffle
date requested by Mr. G, both counsels were If the matter is of extreme urgency and the applicant
present. However, the counsel of Mr. G opposed will suffer grave injustice and irreparable injury, the
the said raffle for the reason that the other executive judge of a multiple-sala court or the
defendants were not duly notified. presiding judge of a single-sala court may issue ex
parte a temporary restraining order effective for
When the case reached the Supreme Court, Mr. G only 72 hours from issuance but he shall
contends that under §4(c), Rule 58, a case may immediately comply with the provisions as to
be raffled only after notice to and in the service of summons and the documents to be served
presence of the adverse party. These requisites therewith. Thereafter, within the aforesaid 72
according to him are mandatory. Furthermore, hours, the judge before whom the case is pending
he maintains that the latter part of the rule, shall conduct a summary hearing to determine
which allows service of summons to be whether the temporary restraining order shall be
dispensed with in case the adverse party cannot extended until the application for preliminary
be located despite diligent efforts, should not be injunction can be heard. In no case shall the total
isolated from other related provisions. Decide period of effectivity of the temporary restraining
the case. order exceed 20 days, including the original
seventy-two (72) hours provided herein.
A: Mr. G's argument is incorrect. Under par. 2 § 4
Rule 58, the required prior or contemporaneous In the event that the application for preliminary
service of summons may be dispensed with in the injunction is denied or not resolved within the said
following instances: (a) when the summons cannot period, the temporary restraining order is deemed
be served personally or by substituted service automatically vacated.
despite diligent efforts, (b) when the adverse party
is a resident of the Philippines temporarily absent A trial court cannot issue a writ of preliminary
therefrom, or (c) when such party is nonresident. In injunction based solely on the applicant’s evidence.
such an event, the notice of raffle and the presence It commits grave abuse of discretion when it issues
of the adverse party must also be dispensed with. such writ prior to the termination of the
The requirement of notice of the raffle to the party presentation of evidence by the party against whom
whose whereabouts are unknown does not apply the injunction shall be issued. The order to show
because the case will have to be raffled first before cause why the injunction should not be granted as
the court can act on the motion for leave to serve stated in Sec. 5, Rule 58 of the Rules of Court is
summons by publication (Gonzalo R. Gonzales v. precisely directed to such party, not on the
State Properties Corporation, G.R. No. 140765, 25 Jan. injunction’s applicant (Lee v. CA, G.R. No. 147191, 27
2001). July 2006).
Ex parte writ of preliminary injunction Q: A city road, connecting Barangay Cupang and
Marcos Highway, was to be constructed. Sunrise
No preliminary injunction shall be granted without Garden, one of the affected private landowners,
hearing and prior notice to the party or person executed an Undertaking to construct the road
sought to be enjoined. The reason is that a at its own expense subject to reimbursement
preliminary injunction may cause grave and through tax credits. When Sunrise Garden’s
irreparable injury to the party enjoined. contractor was about to position its equipment,
armed guards, who were allegedly hired by

2022 GOLDEN NOTES
Remedial Law
Hardrock Aggregates, prevented them from 4. In actions for annulment of judgment which are
using an access road to move the equipment. not patent nullity (i.e. want of jurisdiction, lack
Hence, the trial court, upon motion of Sunrise of due process of law) (Banco Espanol v.
Garden, issued a writ of Preliminary Injunction. Palanca, 37 Phil. 921);
While the case was still pending, informal 5. To restrain continued breach of valid negative
settlers encroached the area which led to the obligation;
issuance of an Amended Writ of Injunction 6. To enjoin repeated trespass on land;
which includes all other persons or groups 7. To restrain city from proceeding with
preventing the construction. Upon return to the abatement of nuisance per accidens before it
area, Sunrise Garden was again blocked by has been judicially declared as such;
armed guards, allegedly hired by First Alliance 8. To restrain voting of disputed shares of stocks;
Real Estate. A Motion to cite K-9 Security Agency and
in contempt was filed by Sunrise Garden. The 9. To restrain the sheriff from selling property on
respondents, K9 Security along with First execution not belonging to the judgment
Alliance, opposed the Motion to cite them in debtor.
contempt, raising the defense of lack of
jurisdiction over their persons, since they were NOTE: A writ of preliminary mandatory injunction
not bound by the Amended Writ of Preliminary will not be set aside unless it was issued with grave
Injunction. The trial court granted Sunrise abuse of discretion. (George S. H. Sy v. Autobus
Garden Corporation's Motion. The Court of Transport System Inc., G.R No. 176898, 03 Dec. 2012)
Appeals, however, annulled the Amended Writ
of Preliminary Injunction issued by the trial Q: Sometime in or before September 2014,
court. Is the contention of respondents correct? Spouses Tumon applied for a loan with
Radiowealth Finance Company, Inc. to finance
A: YES. The court cited Sec. 5, Rule 58 which states their tokwa business. Radiowealth granted
that “No preliminary injunction shall be granted them a loan in the total amount of
without hearing and prior notice to the party or P2,811,456.00, to be paid within 4 years.
person sought to be enjoined. . ." Here, petitioner However, they received only P1,500,000.00
was not only not impleaded as party to the case, but after a processing fee/documentation expense
that it was never given prior notice regarding the of P100,000.00 and interest of P1,311,456.00
writ of injunction. The assertion that notice was were charged by Radiowealth; the loan was
already made to Hardrock Aggregates, Inc. is secured by a real estate mortgage constituted
specious. There is no showing at all as to the upon their real property covered by TCT No.
relationship between Hardrock Aggregates, Inc. and 009-2010000083. Subsequently, the spouses
First Alliance. Absent any proof that they are one suffered losses due to intense market
and the same, they should be treated as separate competition and they failed to pay their monthly
and distinct personalities. (Sunrise Corporation vs amortizations. The 11 monthly amortizations
First Alliance Real Estate, G.R. No. 158836, 30 Sept. they paid from November 2014 to September
2015) 2015 totaled P644,292.00. Representatives of
Radiowealth came to their residence and
Instances when a writ of preliminary injunction threatened that if they failed to pay 2
may be issued consecutive amortizations, Radiowealth would
have the right to take over their house, the
1. In petitions for relief from judgment entered property subject of the mortgage. The spouses
through FAME; asked Radiowealth to lower the monthly
2. In petitions for certiorari, prohibition, and amortization and to extend the payment period,
mandamus; which they were promised; however,
3. In actions for annulment of judgments obtained representatives of Radiowealth asked
through fraud; petitioners to sign a Deed of Sale under Pacto de

Retro instead. Based on the above allegations, Issuance of writ of injunction to enjoin criminal
the spouses filed a complaint for Nullification of prosecution
Mortgage Documents, Promissory Note, and
Damages against Radiowealth Finance GR: A writ of injunction cannot be issued to
Company, Inc. Radiowealth filed before the enjoin criminal prosecution. Public interest
Executive Judge of the RTC an Application for requires that criminal acts be immediately
Extrajudicial Foreclosure of Real Estate investigated and prosecuted for the protection of
Mortgage against the spouses' property. Thus, society.
spouses filed with the RTC an Application for the
Issuance of a Temporary Restraining Order XPNs:
(TRO) and/or WPI to restrain Radiowealth and 1. To afford adequate protection to the
any person acting in its behalf from foreclosing constitutional rights of the accused (Hernandez
and selling their real property. Is it proper to v. Albano, et al., G.R. No. L-19272, 25 Jan. 1967);
dismiss Spouses Tumon's application for WPI?
2. When necessary for the orderly administration
A: YES. Section 3, Rule 58 of the Rules of Court of justice or to avoid oppression or multiplicity
provides the grounds for the issuance of a of actions (Dimayuga, et al. v. Fernandez, G.R. No.
preliminary injunction. For a court to decide on the L-18913, 15 Apr. 1922; Hernandez v. Albano,
propriety of issuing a TRO and/or a WPI, it must supra; Fortun v. Labang, et al., G.R. No. L-38383,
only inquire into the existence of two things: (1) a 27 May 1981);
clear and unmistakable right that must be
protected; and (2) an urgent and paramount 3. When there is a prejudicial question which is
necessity for the writ to prevent serious damage. subjudice (De Leon v. Mabanag, 70 Phil. 202);
In addition to these requirements, the issuance of a 4. When the acts of the officer are without or in
WPI in the context of a judicial or an extrajudicial excess of authority (Planas v. Gil, 67 Phil. 62);
foreclosure of real estate mortgage requires
compliance with the additional rules in A.M. No. 99- 5. Where the prosecution is under an invalid law,
10-05-0, as amended. Rule 2 clearly states that, as a ordinance or regulation (Young v. Rafferty, G.R.
rule, no TRO/WPI shall be issued against the No. 10951, 14 Feb. 1916; Yu Cong Eng v. Trinidad,
extrajudicial foreclosure of real estate mortgage on G.R. No. L-20479, 06 Feb. 1925);
the allegation that the interest on the loan is
unconscionable. However, a TRO/WPI may be 6. When double jeopardy is clearly apparent
issued if the debtor pays the mortgagee the 12% (Sangalang v. People and Avendia, G.R. No. L-
required interest on the principal obligation as 16160, 31 Oct. 1960);
stated in the application for foreclosure sale, which
shall be updated monthly. 7. Where the court has no jurisdiction over the
offense (Lopez v. City Judge, G.R. No. L-25795, 29
Accordingly, to be entitled to a TRO/WPI under Rule Oct. 1966);
2 of A.M. No. 99-10-05-0, as amended, petitioners
were required to pay at least 6% p.a. interest on the 8. Where there is a case of persecution rather than
principal obligation as stated in the application for prosecution (Rustia v. Ocampo, CA-G.R. No. 4760,
foreclosure sale. However, there was no showing 25 Mar. 1960);
that petitioners had complied with this requirement
upon filing the application for TRO/WPI. (Spouses 9. Where the charges are manifestly false and
Tumon v Radiowealth Finance Company, G.R. motivated by the lust for vengeance (Cf.
243999, 18 Mar. 2021, J. Caguioa) Guingona, et al. v. City Fiscal, G.R. No. L-60033, 04
Apr. 1984);

2022 GOLDEN NOTES
Remedial Law
10. When there is clearly no prima facie case Preliminary Mandatory Injunction and/or TRO.
against the accused and a motion to quash on It prayed for the issuance of a writ of mandamus
that ground has been denied (Salonga v. Paño, directing PAP to formally execute a written
et al., G.R. No. L-59524, 18 Feb. 1985); contract, and a writ of preliminary mandatory
injunction directing PAP to turn over the
11. Preliminary injunction has been issued by the management and operations of Nasipit Port's
SC when there is a need to prevent the cargo handling services back to NIASSI. The RTC
threatened unlawful arrest of petitioners. granted NIASSI's petition for the Writ of
(People of the Philippines v. Grey, G.R. No. Preliminary Injunction but was later quashed
180109, 26 July 2010) upon motion of PAP. Hence, NIASSI filed a
petition for Certiorari before the CA and the
Second application for preliminary injunction latter granted the same and found that the RTC
Order was tainted with irregularities and in the
A second application for injunction, which rests in process of resolving the petition of NIASSI ruled
the sound discretion of the court, will ordinarily be upon the issue of the latter's continued
denied unless it is based on facts unknown at the operations at Nasipit Port. The CA (CA-G.R. SP
time of the first application. (Reyes v. Court of No. 00214) held that there was a perfected
Appeals and Sun Life Insurance Office, Ltd., G.R. No. contract between NIASSI and PAP and that the
87647, 21 May 1990) HOA and its extensions constituted partial
fulfillment thereof. However, upon motion for
Q: PAP is a government agency charged with the reconsideration of NIASSI, the CA issued its
management and control of all ports in the Amended Decision directing PAP to execute a
Philippines. On the other hand, NIASSI is a duly cargo-handling contract in favor of NIASSI for a
organized Philippine corporation engaged in full 10-year term from the finality of the RTC
the business of cargo handling. PAP accepted Resolution. Hence, PAP field the instance case
bids for a 10-year contract to operate as the sole contending that the Amended Petition before
cargo handler at the port of Nasipit, Agusan del the RTC had been rendered moot and academic
Norte. Subsequently, PAP issued a Notice of by virtue of the CA decision (CA-G.R. SP No.
Award in favor of NIASSI and the latter sent a 00214). On this basis, PAP concludes that it can
Notice confirming the same to the former. no longer be compelled to formally execute a
Instead of formally executing a written contract, contract with NIASSI upon finality of the
NIASSI requested PAP to issue a Holdover Amended Decision, since the term of the
Authority in its favor in view of a pending perfected contract already expired 10 years
protest filed by the second highest bidder, after PPA received notice of NIASSI's conformity
CASCOR. PAP granted the same and issued a HOA to the Notice of Award. Is PAP correct?
dated August 1, 2001 or until a cargo-handling
contract shall have been awarded, whichever A: Yes. The CA's findings in C.A.-G.R. S.P. No. 00214
comes first. The HOA was extended several constitute the law of the case between the parties
times upon NIASSI's request. However, PAP and are thus binding herein. In its decision in C.A.-
issued a letter revoking the extension and G.R. S.P. No. 00214, the CA held that (i) the 10-
relayed to NIASSI that PAP would take over the year cargo handling contract had already been
cargo handling services at the Nasipit Port perfected, and (ii) the HOA and its subsequent
beginning December 10, 2004. extensions constituted partial fulfillment
thereof. In turn, the Court's decision became final
NIASSI filed with the RTC a Petition for and executory after the lapse of 15 days from notice
Injunction with Prayer for the Writ of thereof to the parties. From such time, the Court's
Preliminary Injunction and/or TRO. The decision became immutable and unalterable. The
petition was later amended to a Petition for Court notes that C.A.-G.R. S.P.No.00214 and the
Mandamus with Prayer for the Writ of instant Petition both stem from the Amended

Petition and seek the same relief — the execution of 5. Labor disputes;
a written contract in accordance with the Notice of
Award. Moreover, both cases involve the same facts, 6. In issuance of licenses, or concessions as to
parties and arguments. For these reasons, the Court disposition, exploitation, utilization,
believes that the doctrine of the law of the case is exploration and/or development of natural
applicable. The doctrine of the law of the case resources (Sec. 1, P.D. No. 605);
precludes departure from a rule previously made by
an appellate court in a subsequent proceeding 7. Implementation of Comprehensive Agrarian
essentially involving the same case. (Philippine Reform Program, collection of taxes, criminal
Ports Authority v. Nasipit Integrated Arrastre and prosecutions;
Stevedoring Services, Inc., G.R. No. 214864, 22 Mar.
2017, J. Caguioa) 8. GR: Mandatory foreclosure of a mortgage by a
government financial institution is a proper
Actions where Preliminary Injunction will not subject of preliminary injunction. (Sec. 2, P.D.
lie No. 385);
1. Against the Department of Public Works and XPN: When it is established after hearing that
Highways to stop government infrastructure 20% of outstanding arrearages is paid after the
projects (Secs. 3 & 4, R.A. No. 8975; P.D. No. filing of the foreclosure proceedings,
1818); preliminary injunction will not lie.
XPNs: 9. GR: Act/s sought to be enjoined already

a. Extreme urgency; consummated;
b. Matter involves a constitutional issue;
c. Grave injustice and irreparable injury will XPN: Acts which are continuing in nature and
arise; were in derogation of plaintiff’s rights at the
d. When it is the SC which will issue the writ outset, preliminary mandatory injunction may
of preliminary injunction. be availed of to restore the parties to the status
quo. (Dayrit v. De Los Santos, G.R. No. L-5005, 11
NOTE: Only the SC may issue injunction Jan. 1911)
against the government, its officials or any
person or entity whether public or private 10. GR: To transfer the property in litigation from
acting under the government direction, to the possession of one party to another where
restrain, prohibit, or compel acts pursuant to the legal title is in dispute and the party having
the implementation and completion of possession asserts ownership thereto (Almeida
infrastructure projects. (Sec 3, R.A. No. 8975) v. CA and Sy, G.R. No. 159124, 17 Jan. 2005);
2. Act/s perpetrated outside the inferior courts’ XPN: Forcible entry and unlawful detainer
territorial jurisdiction; cases – preliminary mandatory injunction may
be issued. (Sec. 15, Rule 70, ROC, as amended)
3. Against judgments of coordinate courts and
quasi-judicial bodies of equal rank; 11. Generally, injunction will not be granted to take
property out of the possession of one party and
4. Issuance will effectively dispose of the main place it in another whose title not clearly
case without trial and/or due process established;
(Boncodin v. Nat’l Power Corporation Employees
Consolidated Union, G.R. No. 162716, 27 Sept. 12. When action for damages would adequately
2006); compensate injuries caused (Golding v.
Balatbat, G.R. No. L-11130, 08 Oct. 1917);

2022 GOLDEN NOTES
Remedial Law
13. To prevent directors from discharging their Q: Mac Corp. entered into a lease contract with
offices and restoring former directors; Makro for exclusive use of the latter's billboard
for a period of 20 years. Makro sent a letter to
14. To restrain criminal prosecution where the Mac Graphics terminating the lease contract
Ombudsman had authorized the Special effective immediately because of the latter's
prosecutor to conduct a preliminary alleged failure to obtain the relevant MMDA and
investigation or to file an injunction; local government permits and to obtain a
comprehensive all-risk property insurance for
15. To restrain the enforcement of a law alleged to the sites. Makro averred that the 90 days
be unconstitutional except if it will result in "remedy period" of the lease contract does not
injury to rights in private property (J.M Tuazon apply because Mac Graphics' violation was not
v. Co. et al., G.R. No. L-18128, 26 Dec. 1961); remediable. Makro and SMIC then removed Mac
Graphics' billboards and other advertising
16. GR: To restrain collection of taxes (Valley media installed at Makro-Cubao and Makro-
Trading v. CFI of Isabela, G.R. No. L-49529, 31 Makati. Upon application by Mac, the RTC issued
Mar. 1989) an Order granting the Writ of Preliminary
Mandatory Injunction (WPMI) which was
XPN: There are special circumstances that bear upheld by the CA. Did the CA gravely err in
the existence of irreparable injury. (Churchill & upholding the WPMI granted by the RTC?
Tait v. Ratterty, G.R. No. L-10572, 21 Dec. 1915)
A: YES. The SC held that before a court grants
GROUNDS FOR ISSUANCE OF PRELIMINARY injunctive relief, the complainant must demonstrate
INJUNCTION that: he is entitled to the relief sought, the actual or
threatened violation of complainant's rights, the
A preliminary injunction may be granted when it is probability of irreparable injury, and the
established: inadequacy of pecuniary compensation as relief.
1. That the applicant is entitled to the relief The Court in Power Sites and Signs, Inc. v. United
demanded, and the whole or part of such relief Neon stated a writ of preliminary injunction should
consists in restraining the commission or be issued only to prevent grave and irreparable
continuance of the act or acts complained of, or injury, that is, injury that is actual, substantial, and
in requiring the performance of an act or acts demonstrable. In this case, there is no "irreparable
either for a limited period or perpetually; injury" as understood in law. Rather, the damages
alleged by the petitioner, namely, "immense loss in
2. That the commission, continuance or non- profit and possible damage claims from clients" and
performance of the act or acts complained of the cost of the billboard which is "a considerable
during the litigation would probably work amount of money" is easily quantifiable, and
injustice to the applicant; or certainly does not fall within the concept of
irreparable damage or injury. Consequently, the CA
3. That a party, court, agency or a person is doing, committed grave error for upholding the grant of
threatening, or is attempting to do, or is the WPMI by the RTC in favor of Mac Graphics given
procuring or suffering to be done some act or the patent absence of a clear and unmistakable right
acts probably in violation of the rights of the of Mac Graphics and its injury, if any, that is easily
applicant respecting the subject of the action quantifiable and reparable. (SM Investments
or proceeding, and tending to render the Corporation v. MAC Graphics Carranz International,
judgment ineffectual. (Sec. 3, Rule 58, ROC, as G.R. No. 224131-32, June 25, 2018, J. Caguioa)
amended)

GROUNDS FOR OBJECTION TO, Duty of the Court within 20-day period:
OR FOR THE DISSOLUTION OF INJUNCTION
OR RESTRAINING ORDER 1. The court must order said party or person to
show cause why the injunction should not be
Dissolution of Writ of Preliminary Injunction or granted.
Restraining Order
2. The court shall determine whether the
The party enjoined may file a motion to dissolve the preliminary injunction shall be granted and
injunction or TRO with notice and hearing of the then issue the corresponding order. (Australian
motion upon showing by affidavits that the person Professional, Inc. vs. Municipality of Padre
enjoined would suffer irreparable damage while the Garcia, G.R. No. 183367, 14 Mar. 2012)
applicant can be fully compensated for such
damages as he may suffer. As a rule, the writ of prohibition will not lie to
enjoin acts already done. However, as an
The movant must also file a bond conditioned upon exception to the rule on mootness, courts will
payment of all damages which the applicant may decide a question otherwise moot if it is capable
suffer by the dissolution of the injunction or of repetition yet evading review. (UNICAN v.
restraining order. (Sec. 6, Rule 58, ROC, as amended) National Electrification Administration, G.R. No.
187107, 31 Jan. 2012)
Grounds for objections or dissolution of
Injunction or Restraining Order Q: An application for a writ of preliminary
injunction with a prayer for a TRO is included in
1. Insufficiency of application for injunction or a complaint and filed in a multi-sala RTC
restraining order. The application may be consisting of Branches 1, 2, 3, and 4. Being
considered insufficient if it is not verified and urgent in nature, the Executive Judge, who was
supported by any of the grounds under Sec. 3, sitting in Branch 1, upon the filing of the
Rule 58; application aforesaid, immediately raffled the
case in the presence of the judges of Branches 2,
2. Issuance or continuance of injunction or 3 and 4. The case was raffled to Branch 4 and the
restraining order causes irreparable injury judge thereof immediately issued a TRO. Is the
while applicant may be fully compensated for temporary restraining order valid? (2001 BAR)
damages by the bond filed by the person sought
to be enjoined; A: NO. It is only the Executive Judge who can issue
immediately a TRO effective for 72 hours from
3. Extent of injunction or restraining order is too issuance. No other judge has the right or power to
great; issue a TRO ex parte. The judge to whom the case is
assigned will then conduct a summary hearing to
Effect: Modification (Sec. 6, Rule 58, ROC, as determine whether the TRO shall be extended, but
amended) in no case beyond 20 days including the original 72-
hour period.
4. Insufficiency or defective bond (Sec. 7, Rule 58,
ROC, as amended)
NOTE: Filing of verified motion and bond as well as

hearing is required.

2022 GOLDEN NOTES
Remedial Law
IN RELATION TO R.A. 8975 – BAN ON ISSUANCE who issues a TRO in violation of Sec. 3 of R.A. No.
OF TRO OR WRIT OF INJUNCTION IN CASES 8975. In addition to any civil and criminal liability
INVOLVING GOVERNMENT INFRASTRUCTURE he or she may incur, the judge may suffer the
PROJECTS penalty of suspension for at least 60 days without
pay.
Preliminary Injunction or TRO in cases
involving Government Infrastructure Projects DURATION OF TEMPORARY RESTRAINING
ORDERS
GR: No court, except the Supreme Court shall issue
any TRO, preliminary injunction or preliminary 1. If issued by RTC/MTC – 20 days from service
mandatory injunction against the government, or on the person sought to be enjoined;
any of its subdivisions, officials or any person or 2. If issued by CA – 60 days from service on the
entity, whether public or private acting under the party sought to be enjoined which is non-
government direction, to restrain, prohibit or extendible, (2006 BAR);
compel the following acts: 3. If issued by SC –Effective until further orders.
1. Acquisition, clearance and development of the NOTE: If the matter is of extreme urgency and the
right-of-way and/or site or location of any applicant will suffer grave injustice and irreparable
national government project; injury, the judge may issue an ex-parte TRO
2. Bidding or awarding of contract/ project of the effective for 72 hours from issuance but shall
national government as defined under Sec. 2 of comply with the rule on contemporaneous service
RA 8975; of summons unless the same could not be served
3. Commencement prosecution, execution, personally or by substituted service despite diligent
implementation, operation of any such contract efforts. The period may be extended for a period not
or project; exceeding 20 days including the 72 hours already
4. Termination or rescission of any such given. (Sec. 5, Rule 58, ROC, as amended)
contract/project; and
5. The undertaking or authorization of any other Prohibition against the renewal applies only if the
lawful activity necessary for such same is sought under and by reason of the same
contract/project. (Sec. 3, R.A. No. 8975) ground for which it was originally issued. (Regalado,
2017)
NOTE: The law further provides that any TRO or
preliminary injunction issued in violation of Sec. 3 is RULE ON PRIOR OR CONTEMPORANEOUS
void and of no force and effect. (Sec. 4, Ibid.) SERVICE OF SUMMONS IN RELATION TO
ATTACHMENT
XPNs: The prohibition does not apply when:
GR: Just as in levy on preliminary attachment, there
1. The matter is of extreme urgency involving a must be proof of prior or contemporaneous service
constitutional issue; and of summons with a copy of the complaint or
initiatory pleading and applicant’s affidavit and
2. Grave injustice and irreparable injury will arise bond on the adverse party. (Regalado, 2017)
unless a temporary restraining order is issued.
In this case, the applicant shall file a bond in an XPN: When summons could not be served upon the
amount to fixed by court and which shall accrue defendant either in person or by substituted service
in favor of the government if the court should despite diligent efforts or when the defendant is
finally decide that the applicant was not entitled temporarily out of the Philippines or when he or she
to the relief sought. (Sec. 3, Ibid.) is a non-resident, the requirement of prior
contemporaneous service shall not apply.
Sec. 6 of R.A. No. 8975 imposes a penalty on a judge

CASES WHEREIN A RECEIVER MAY BE

D. RECEIVERSHIP (RULE 59) APPOINTED
Receiver
It is a provisional remedy wherein the court

A receiver is a person appointed by the court on
appoints a representative to preserve, administer,
behalf of all the parties to the action for the purpose
dispose of and prevent the loss or dissipation of real
of preserving and conserving the property in
or personal property during the pendency of an
litigation and of preventing its possible destruction
action. It can be availed of even after the judgment
if it were left to any of the parties. (Commodities
has become final and executory as it may be applied
Storage & Ice Plant Corporation v. CA, G.R. No.
for to aid execution or carry judgment into effect.
125008, 19 June 1997)
(2001 BAR)
NOTE: A party to an action may not be appointed as

NOTE: Receivership, like injunction, may also be a
a receiver unless consented to by all parties.
principal action as the one referred to in Sec. 4 of
Rule 39. Rule 59 is a receivership that is ancillary to
The appointment of a receiver is necessary since the
a main action. (Riano, 2019)
court is not provided with adequate machinery and
resources for dealing with the situation presented
Purpose of Receivership
by the appointment of a receiver and all the details
connected therewith. (Velasco v. Gochuico, G.R. No.
To prevent imminent danger to the property. If the
L-10173, 01 Feb. 1916)
action does not require such protection or
preservation, the remedy is not receivership.
Who may appoint a Receiver
(Chavez v. CA, G.R. No. 174356, 20 Jan. 2010)
The purpose of receivership as a provisional
1. Court where action is pending;
remedy is to protect and preserve the rights of the
2. Court of Appeals; or
parties during:
3. Supreme Court or a member thereof (Sec. 1,
1. The pendency of the main action;
2. During the pendency of an appeal, or;
NOTE: During the pendency of an appeal, the
3. In the execution of judgment as when the writ
appellate court may allow an application for the
of execution has been returned unsatisfied.
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 the latter court. (Sec.1,
NOTE: The receivership under Rule 59 is directed to
the property which is the subject of the action—not
to the receivership authorized under the banking
Cases that justify when Receiver may be
laws and other rules or laws. Rule 59 presupposes
appointed
that there is an action wherein preservation is
needed for the subject property. (Riano, 2019)
1. The applicant has an interest in the property or
fund subject of the proceeding and such
When to file Receivership
property is in danger of being lost, removed, or
materially injured;
1. At any stage of the proceedings;
2. Even after finality of judgment.
2. In foreclosure of mortgage when the property is
in danger of being wasted, dissipated, or
materially injured, and that its value is probably
insufficient to discharge the mortgage debt or

2022 GOLDEN NOTES
Remedial Law
that it has been agreed upon by the parties; value of the property and other things so refused or
neglected to be surrendered, together with all
3. After judgment, to preserve the property during damages that may have been sustained by the party
the pendency of an appeal, or to dispose it or parties entitled thereto as a consequence of such
according to the judgment, or in aid of execution refusal or neglect. (Sec. 7, Rule 59, ROC, as amended)
when execution has remained unsatisfied;
REQUISITES
4. In other cases, where the appointment of a
receiver is the most convenient and feasible 1. Party applying for receivership has an existing
means of preserving, administering, or interest in the property or funds subject of the
disposing the property. (Sec. 1, Rule 59, ROC, as action and the property or funds is in danger of
amended) being lost, wasted or dissipated;
Instances when receivership will not lie 2. Verified application filed at any stage of the
proceedings even after final judgment, prior to
1. On a property in custodia legis (Lizarraga the satisfaction of judgment (Sec. 1, Rule 59,
Hermanos. v. Abada, G.R. No. 13910, 17 Sept. ROC, as amended);
1919). However, a receiver can be appointed
where a property in custody of an 3. The application must be with notice and
administrator or executor is in danger of hearing;
imminent loss or injury (Dolor v. Sindian, G.R.
No. L-27631, 30 Apr. 1971); 4. The applicant must post a bond executed to the
party against whom the application is
2. Where the action is merely to obtain a money presented (Sec. 2, Rule 59, ROC, as amended);
judgment on unpaid credits and not to enforce and
a lien upon specific property or funds in the
possession of the defendant (Bonaplata v. 5. Receiver must be sworn to perform his duties
Ambler et al., G.R. No. 1278, 01 Aug. 1903; faithfully and shall file a bond. (Sec. 4, Rule 58,
Regalado, 2017); ROC, as amended)
3. In actions involving possession of or title to real Requirements before issuance of an Order

property, the appointment of receiver may be appointing a Receiver
made only if there is clear necessity to protect
the applicant from grave or irremediable The applicant must file a bond executed to the party
damages. against whom the application is presented in an
amount fixed by the court. The bond is undertaken
Effect of a contract executed by a Receiver to the effect that the applicant will pay the other
without court approval party damages that he or she may sustain by reason
of the appointment of the receiver.
Such contract will constitute his personal
undertakings and obligations. (Pacific NOTE: The court, in its discretion, may require an
Merchandising Corp. v. Consolacion Insurance & additional bond for further security for damages.
Surety Co., G.R. No. L-30204, 29 Oct. 1976) (Sec. 2, Rule 59, ROC, as amended)
Liability of a person who refuses or neglects to GENERAL POWERS OF A RECEIVER

deliver property to the Receiver
1. Bring and defend in his or her capacity as a
Such person may be punished for contempt and receiver, actions in his or her own name;
shall be liable to the receiver for the money or the

2. Take and keep possession of the property in NOTE: Where counterbond is insufficient or
controversy; defective, receiver may be re-appointed. (Sec.
3. Receive rents; 5, Rule 59, ROC, as amended)
4. Collect debts due to himself or herself as
receiver or to the fund, property, estate, person 2. Appointment of receiver was made without
or corporation of which he or she is a receiver; sufficient cause (Sec. 3, Rule 59, ROC, as
5. Compound for and compromise debts collected; amended);
6. Make transfers;
7. Pay outstanding debts; 3. Insufficient or defective applicant’s bond (Sec.
8. Divide money and other property that shall 5, Rule 59, ROC, as amended);
remain among the persons legally entitled to
receive the same; 4. Insufficient or defective receiver’s bond (Sec. 5,
9. Do such acts respecting the property as the Rule 59, ROC, as amended); and
court may authorize; and
10. Invest funds in his or her hands only by order of 5. Receiver no longer necessary (Sec. 8, Rule 59,
the court upon the written consent of all the ROC, as amended)
parties. (Sec. 6, Rule 59, ROC, as amended)
Termination of Receivership
Two kinds of bonds in receivership
1. By the court motu propio or on motion by either
1. Applicant’s Bond - the bond required before party;
the appointment of a receiver (Sec. 2, Rule 59, 2. Based on the following grounds:
ROC, as amended); a. Necessity for receiver no longer exists;
b. Receiver asserts ownership over the
2. Receiver’s Bond – the bond required to be filed property (Martinez v. Graño, G.R. No. L-
by the receiver before entering upon his duties 25437, 14 Aug. 1926);
as such to the effect that he or her will faithfully
discharge his duties in the action and to obey NOTE: The court, after due notice and hearing to all
the order of the court (Sec. 4, Rule 59, ROC, as interested parties, shall settle the accounts of the
amended) receiver, direct the delivery of funds in his
possession to the person adjudged to be entitled to
NOTE: A counterbond may be filed by the adverse receive them, and order the discharge of the
party executed to the applicant, in an amount to be receiver. (Sec. 8, Rule 59, ROC, as amended)
fixed by the court, to the effect that such party will
pay the applicant all damages he may suffer by Suits against a Receiver
reason of the acts, omissions, or other matters
specified in the application as ground for such No action may be filed against a receiver without
appointment in which case, the application may be leave of the court which appointed him. (Sec. 6, Rule
denied, or the receiver discharged, when the 59, ROC, as amended)
adverse party files a bond (Sec. 3, Rule 59, ROC, as
amended). Any action filed against a receiver without the
requisite judicial authority may be dismissed upon
TERMINATION OF RECEIVERSHIP proper motion for failure to comply with a condition
precedent under Sec. 1[j], Rule 16 of the Rules of
Grounds for the Discharge of Receiver Court. (Riano, 2019)
1. Posting of counterbond by adverse party (Sec. Q: Paula filed a complaint against Jolly for the
3, Rule 59, ROC, as amended); foreclosure of a mortgage of a furniture factory
with a large number of machinery and

2022 GOLDEN NOTES
Remedial Law
equipment. During the pendency of the to damages involved. As an “action in rem”, the gist
foreclosure suit, Paula learned from reliable of the replevin action is the right of the plaintiff to
sources that Jolly was quietly and gradually obtain possession of specific personal property by
disposing of some of his machinery and reason of his or her being the owner or of his or her
equipment to a businessman friend who was having a special interest therein. (BA Finance
also engaged in furniture manufacturing such Corporation vs. Court of Appeals, G.R. No. 102998, 05
that from confirmed reports Paula gathered, the July 1996)
machinery and equipment left with Jolly were
no longer sufficient to answer for the latter's Q: To be able to secure financial
mortgage indebtedness. In the meantime, accommodations from Makati Leasing,
judgment was rendered by the court in favor of Wearever discounted and assigned several
Paula but the same is not yet final. Knowing receivables under a Receivable Purchase
what Jolly has been doing, if you were Paula's Agreement. To secure the collection of the
lawyer, what action would you take to preserve receivables assigned, private respondent
whatever remaining machinery and equipment executed a chattel mortgage over certain
are left with Jolly? Why? (2001 BAR) machineries which were bolted to the ground.
Upon default, Makati Leasing move for
A: Paula’s lawyer should file a verified application extrajudicial foreclosure of the mortgage
for the appointment by the court of one or more properties and filed an action for replevin which
receivers. Receivership is proper in an action by the was granted by the court. Can the machineries
mortgagee for the foreclosure of a mortgage when it bolted to the ground be a subject of replevin?
appears that the property is in danger of being
wasted or dissipated or materially injured and that A: Machineries bolted to the ground are real
its value is probably insufficient to discharge the properties that may not be the subject to replevin.
mortgage debt. (Makati Leasing and Finance Corporation v.
Wearever Textile Mills, Inc., G.R. No. L-58469, 16 May
1983)
E. REPLEVIN (RULE 60)
WHEN MAY A WRIT OF REPLEVIN BE ISSUED
The writ of Replevin may only be obtained when the

Replevin may be a principal remedy or a provisional
defendant in the action has not yet filed his answer
relief.
to the complaint where it is necessary to:
1. As a main action- it seeks to regain the
1. Protect plaintiff’s right of possession to
possession of personal chattels being
property; or
wrongfully detained from the plaintiff.
2. Prevent defendant from destroying, damaging
2. As a provisional remedy- to allow the plaintiff
or disposing of the property.
to retain the thing during the pendency of the
action and hold it pendente lite (BA Finance
NOTE: Under the Resolution of the Supreme Court
Corp. v. CA, G.R. No. 102998, 05 July 1996)
en banc dated January 11, 1983, a writ of replevin
like the one issued in the present case may be
Nature of an action for Replevin
served anywhere in the Philippines. (Fernandez v.
International Corporate Bank, now Union Bank of the
The action is primarily possessory in nature and
Philippines, G.R. No. 131283, 07 Oct. 1999)
generally 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

REQUISITES possession with writ of replevin against Alvin.

Alvin then filed a Motion to Quash the writ for
1. The application for the writ must be filed at the failure of William to establish his ownership
commencement of the action or at any time over the vehicle. Should the writ be issued?
before the defendant answers (Sec. 1, Rule 60,
ROC, as amended) (1999 BAR); A: NO. In a complaint for replevin, the claimant must
convincingly show that he is either the owner or
2. The application must contain an affidavit where clearly entitled to the possession of the object
the applicant particularly describes the sought to be recovered. By entrusting the vehicle to
property that he is the owner of the property or Frankie, William constituted the former his agent,
that he is entitled to the possession thereof; who by acting in the latter’s behalf, was able to sell
the vehicle. Since Frankie was able to sell the
NOTE: The affidavit must contain the following: subject vehicle, William thus ceased to be the owner
thereof. Nor is William entitled to the possession of
a. That the applicant is the owner of the the vehicle; together with his ownership, William
property claimed, particular description of lost his right of possession over the vehicle.
such entitlement to possession particularly Considering that he was no longer the owner or
describing it, or is entitled to the possession rightful possessor of the subject vehicle at the time
thereof; he filed the case, he may not seek a return of the
b. That the property is wrongfully detained by same through replevin (Siy v. Tomlin, G.R. No.
the adverse party, alleging the cause of 205998, 24 Apr. 1997).
detention according to applicant’s
knowledge, information and belief; Replevin Bond
c. That the property has not been distrained
or taken for tax assessment or fine, or For the a) return of the property to the adverse
seized by writ of execution, preliminary party if such return is adjudged; b) payment to the
attachment, or placed in custodia legis, or if adverse party of such sum as he may recover from
so seized, that is exempt or should be the applicant in the action. (Sec. 2, Rule 60, ROC, as
released from custody; amended) It is intended to indemnify the defendant
d. Actual market value of the property (Sec. 2, against the loss that he may suffer by being
Rule 60, ROC, as amended) compelled to surrender the possession of the
property pending the action.
3. The applicant must give a bond, executed to the
adverse party in double the value of the Redelivery Bond
property as stated in the affidavit. (Sec. 2, Rule
60, ROC, as amended) (2010 BAR) If the adverse party objects to the sufficiency of the
applicant’s bond or of the surety, at any time before
NOTE: The applicant need not be the owner of the the delivery of the property to the applicant, the
property. It is enough that he or she has a right to its adverse party may file a redelivery bond executed to
possession. (Yang v. Valdez, G.R. No. 102998, 05 July the applicant, double the value of the property as
1996) stated in the applicant’s affidavit to answer for the
return of property if adjudged and pay for such sum
Q: William alleges that he owns a Range Rover. as may be recovered against him. (Sec. 5, Rule 60,
The vehicle was entrusted to Frankie, a second- ROC, as amended)
hand seller, for resale to buyers. Frankie failed
to remit the proceeds of the sale and also failed NOTE: It is required that the redelivery bond be
to return the vehicle. The vehicle reached the filed within the period of 5 days after the taking of
hands of Alvin and was registered in his name. the property. (Yang v. Valdez, G.R. No. 102998, 05
William then filed a case for recovery of July 1996).

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SHERIFF’S DUTY IN THE IMPLEMENTATION OF affidavit upon the sheriff while the latter has
THE WRIT; WHEN PROPERTY IS CLAIMED BY possession of the property;
THIRD PARTY
2. Sheriff shall return the property to third person
Duties of the sheriff upon receipt of the court unless applicant files a bond in an amount equal
order to the value of the property approved by court
to indemnify the third person; and
1. Sheriff must serve a copy of the writ on the
adverse party, together with a copy of the 3. Claim for damages upon said bond must be filed
application, affidavit and bond; within 120 days from date of filing of the bond.
2. He or she must take the property, if it be in the NOTE: When the bond is filed, the sheriff shall not
possession of the adverse party, or his agent, be liable for damages for the taking or keeping of
and retain it in his custody; such property. The party-claimant is not precluded
from vindicating his claim and may maintain an
3. If the property or any part thereof be concealed action and seek injunctive relief against the sheriff.
in a building or enclosure, the sheriff must The applicant is likewise not precluded from
demand its delivery, and if itis not delivered, he claiming damages against the third party who filed
or she must cause the building or enclosure to a frivolous or spurious claim in the same or separate
be broken open and take the property into his action. (Sec. 7, Rule 60, ROC, as amended)
possession;
Writ issued in favor of the Republic
4. After the sheriff has taken possession of the
property as herein provided, he or she must When the writ of replevin is issued in favor of the
keep it in a secure place; and Republic of the Philippines, or any officer duly
5. Within (5) days from the taking of the property, representing it, the filing of such bond shall not be
the sheriff shall wait for the move of the adverse required, and in case the sheriff is sued for damages
party. If the adverse party does not object or as a result of replevin, he shall be represented by the
fails to perform acts to effect the return to him Solicitor General, and if held liable therefor, the
or her the property, the property shall be actual damages adjudged by the court shall be paid
delivered to the applicant. (Sec. 4, Rule 60, ROC, by the National Treasurer out of the funds to be
as amended) appropriated for the purpose. (Sec. 7, Rule 60, ROC,
as amended)
Return of the property to defendant
1. He or she seasonably posts a redelivery bond

(Ibid.);
2. Plaintiff’s bond is found to be insufficient or
defective and is not replaced with proper bond;
and
3. Property is not delivered to the plaintiff for any
reason. (Sec. 6, Rule 60, ROC, as amended)
When the property is claimed by a third party
1. Third party shall file and serve affidavit upon

sheriff and applicant stating his or her
entitlement to possession and shall serve the

Special Civil Actions
IV. SPECIAL CIVIL ACTIONS
GENERAL MATTERS
NATURE OF SPECIAL CIVIL ACTIONS
Since a civil action, in general, is one by which a

party sues another for the enforcement or
protection of a right, or the prevention or redress of
a wrong (Sec. 3(a), Rule 1, ROC, as amended), a
special civil action is generally brought or filed for
the same purpose.
ORDINARY CIVIL ACTIONS vs. SPECIAL CIVIL ACTIONS
ORDINARY CIVIL ACTION SPECIAL CIVIL ACTION

Governing Law
Governed by ordinary rules but subject to specific
Governed by the ordinary rules. (Sec. 3, Rule 1)
rules prescribed. (Sec 3, Rule 1)
Cause of Action
Not all special civil actions are based on a cause of
action, i.e. Declaratory relief (Rule 63, ROC, as
It is based on a cause of action (Sec. 1, Rule 2)
amended); and, Interpleader (Rule 62, ROC, as
amended; Riano, 2019)
Venue
If personal action – residence of the parties; G.R.: Governed by the general rules of venues.
If real action – location of the property. (Sec. 1-2, Rule XPN: Otherwise indicated by special rules (Regalado,
4) 2017)
Jurisdiction
May be filed initially in either the Municipal Trial There are special civil actions which can only be filed
Court or Regional Trial Court depending upon the in a Municipal Trial Court. Some of the exceptions to
jurisdictional amount or nature of the action involved. that rules are petitions for certiorari, prohibition and
(Riano, 2019) mandamus. (Ibid)

2022 GOLDEN NOTES
Remedial Law
A. JURISDICTION AND VENUE
JURISDICTION VENUE
Interpleader (Rule 62)
MTC – where the value of the claim or the personal
property does not exceed P2,000,000or where the value
Where the plaintiff or any of the principal plaintiffs
of the real property does not exceed P400,000
resides or where the defendant or any of the
RTC – if the value exceeds the above amounts or if the
principal defendants resides at the option of the
subject matter is exclusively within the jurisdiction of
plaintiff. (Sec. 2, Rule 4, ROC, as amended)
the RTC. (Judiciary Act of 1980; Secs. 19(2) and 33(3), B.P.
Blg. 129, as amended by R.A. No. 7691)
Declaratory Relief and Similar Reliefs (Rule 63)
Declaratory relief – RTC, since the subject in a petition
for declaratory relief is incapable of pecuniary
estimation
Similar reliefs under second paragraph, Sec. 1, Rule 63;
MTC - where the value of the real property does not

exceed P400,000.
Where the petitioner or the respondent resides at the
election of the petitioner. (Sec. 2, Rule 4, ROC, as
RTC – if the value exceeds the above amounts or if the
amended)
subject matter is exclusively within the jurisdiction of
the RTC (Melana v. Tappa, G.R. No. 181303, 17 Sept.
2009)
NOTE: It would be an error to file the petition with the

SC which has no original jurisdiction to entertain a
petition for declaratory relief. (Tano v. Socrates, G.R. No.
110249, 14 Aug. 1997)
Review of Judgments of COMELEC AND COA (Rule 64 in relation to Rule 65)
Supreme Court on certiorari under
Supreme Court
Rule 65
Certiorari, Prohibition, Mandamus (Rule 65)
RTC, if it is directed against a municipal trial court,
corporation, board, an officer or a person;
CA or with the SB, whether or not the same is in aid

of the court’s appellate jurisdiction;
RTC; CA; SC; Sandiganbayan, COMELEC in aid of their
appellate jurisdiction (A.M. No. 07-7-12-SC).
If the petition involves an act or an omission of a
quasi-judicial agency, unless otherwise provided by
law or the Rules, the petition shall be filed with and
be cognizable only by the Court of Appeals;

In election cases involving an act or omission of

MTC/RTC, it shall be filed exclusively with the
COMELEC, in aid of its appellate jurisdiction. (Sec. 4,
Quo warranto
Where the respondent or any of the respondents
resides. When the Solicitor General commences the
RTC, CA, Supreme Court (Sec. 7, Rule 66, ROC, as
action, it may be brought in the RTC of the City of
amended)
Manila, in the CA, or in the SC. (Sec. 7, Rule 66, ROC,
as amended)
Sandiganbayan in aid of its appellate jurisdiction (P.D.
No. 1606, as amended by R.A. No. 8249)
NOTE: Subject to the principle of Hierarchy of
Courts
Expropriation (Rule 67)
Real Property: where the property is located
RTC since incapable of pecuniary estimation
(Barangay San Roque v. Heirs of Pastor, G.R. No. 138896, Personal property: the place where the plaintiff or
20 June 2000) defendant resides, at the election of the plaintiff
(Sec. 2, Rule 4, ROC, as amended).
Foreclosure of REM (Rule 68)
RTC since incapable of pecuniary estimation.
Where the land or any part thereof is located. (Sec.
(Barangay San Roque v. Heirs of Pastor, G.R. No. 138896,
20 June 2000)
Partition (Rule 69)
Real property – where the property is located
RTC since incapable of pecuniary estimation (2000

Personal property – the place where the plaintiff or
BAR, as cited in Riano, 2019)
defendant resides at the election of the plaintiff (Sec.
13, Rule 69, ROC, as amended).
Forcible Entry (Rule 70)
MTC, MTCCs, MCTC, MeTC; covered by Rule on Where the property is located because it is a real
Summary Procedure (Sec 3, RA 7691). action. (Riano, 2019)
Unlawful Detainer (Rule 70)
MTC, MTCCs, MCTC, MeTC; covered by Rule on Where the property is located because it is a real
Summary Procedure. (Sec 3, RA 7691) action. (Ibid)
Contempt (Rule 71)
Where the charge for indirect contempt has been
committed against RTC or a court of equivalent or
higher rank, or against an officer appointed by it, the
charge may be filed with such court.
MTC, RTC, CA, Supreme Court Where such contempt has been committed against
a lower court, the charge may be filed with the RTC
of the place in which the lower court is sitting; but
the proceedings may also be instituted in such
lower court subject to appeal to the RTC of such
place. (Sec. 5, Rule 70, ROC, as amended)

2022 GOLDEN NOTES
Remedial Law
Special civil actions within the jurisdiction of the WHEN TO FILE

inferior courts (I-C-E)
GR: An action for interpleader must be filed within
1. Interpleader, provided the amount involved is a reasonable time after the dispute has arisen,
within its jurisdiction (Makati Development otherwise it may be barred by laches. (Wack Wack
Corp. v. Tanjuatco, et al., G.R. No. L-26443, 25 Golf & Country Club Inc. v. Lee Won, et al., G.R. No. L-
Mar. 1969); 23851, 26 Mar. 1976)
2. Contempt (Secs. 1 and 4, Rule 71, ROC, as
amended); and XPN: Where a stakeholder acts with reasonable
3. Ejectment Suits (Sec. 88, R.A. 296; Rule 70, diligence in view of the environmental
ROC, as amended) circumstances, the remedy is not barred. (Wack
Wack Golf & Country Club Inc. v. Lee Won, et al., G.R.
No. L-23851, 26 Mar. 1976)
B. INTERPLEADER (RULE 62)
It is proper when the lessee, for instance, does not
know who is entitled to the payment of the rentals
due because of conflicting claims on the property.
It is a special civil remedy whereby a party who has
property in his possession but who claims no
Who may file
interest in the subject, or whose interest, in whole
or in part, is not disputed by others, goes to court
It is filed by the person against whom the conflicting
and asks that conflicting claimants to the property
claims are made. (Sec. 1, Rule 62, ROC, as amended)
or obligation be required to litigate among
The person who files the complaint shall pay the
themselves in order to determine finally who is
docket fees and other lawful fees and shall bear the
entitled to the same. (Sec. 1, Rule 62, ROC, as
costs and other litigation expenses even if he has no
amended)
interest in the subject matter of the action, unless
the court shall order otherwise. (Sec. 7, Rule 62, ROC,
NOTE: The remedy is afforded not to protect a
as amended; Riano, 2019)
person against double liability but to protect him
against double vexation in respect of one liability.
NOTE: The costs, expenses, and attorney’s fees
(Beltran v. People’s Homesite & Housing Corp., G.R.
incurred by plaintiff in the action is recoverable
No. L-25138, 28 Aug. 1969; Regalado, 2008 2017)
from the defendant who loses in the action and is
found by the court to have caused the unnecessary
REQUISITES FOR INTERPLEADER
litigation. (Menzi & Co. v. Bastida, G.R. No. L-35840,
31 Mar. 1933)
1. There must be two or more claimants with
adverse or conflicting interests upon a subject
Summons shall be served upon the conflicting
matter;
claimants, together with a copy of the complaint and
order. (Sec. 3, Rule 62, ROC, as amended)
2. The conflicting claims involve the same subject
matter and against the same person (plaintiff);
GROUNDS FOR DISMISSAL
and
1. Impropriety of Interpleader (Sec. 4, Rule 62,

3. The plaintiff has no claim upon the subject
ROC, as amended)
matter of the adverse claims or if he has an
2. Grounds for a motion to dismiss
interest at all, such interest is not disputed by
a. Lack of jurisdiction over the subject matter
the claimants. (2012 BAR) (Riano, 2019)
b. Litis pendentia
c. Res judicata

d. Prescription (Sec. 12(a), Rule 15, ROC, as Declaratory Relief

amended)
It is a special civil action brought by a person
interested under a deed, will, contract or other
C. DECLARATORY RELIEFS AND SIMILAR written instrument or whose rights are affected by
REMEDIES (RULE 63) a statute, executive order or regulation, ordinance,
or any other governmental regulation before breach
or violation thereof, asking the court to determine
any question of construction or validity arising, and
Two types of action covered by Rule 63
for a declaration of his rights or duties thereunder.
1. Petition for declaratory relief; and
2. Similar remedies:
NOTE: Declaratory judgments are to be
a. Action for reformation of an instrument;
distinguished from those which are advisory in
b. Action to quiet title; and
character, since they are res judicata and binding
c. Action to consolidate ownership under Art.
upon the parties and those in privity with them, and
1607 NCC. (Riano, 2019)
from decisions of abstract or moot questions since
they must involve a real controversy. (16 Am. Jur.
NOTE: These 3 remedies are considered similar to
Declaratory Judgments)
declaratory relief because they also result in the
The enumeration of subject matter is EXCLUSIVE,
adjudication of the legal rights of the litigants, often
subject to clear and unambiguous contract or
without the need of execution to carry judgment
statute. (Riano, 2019)
into effect.
WHO MAY FILE THE ACTION

In declaratory relief, the court is given the discretion
to act or not to act on the petition. It may choose not
Any person: (I-A-C)
to construe the instrument sought to be construed
or could refrain from declaring the rights of the
1. Interested under a deed, will, contract or other
petitioner under the deed or the law:
written instrument (Sec. 1, Rule 63, ROC, as
amended);
1. Where a decision would not terminate the
2. Whose rights are affected by a statute,
uncertainty or controversy which gave rise to
executive order or regulation, ordinance or any
the action; or
other governmental regulation (Sec. 1, Rule 63,
2. Where the declaration or construction is not
necessary and proper under the
3. The other parties are all persons who have or
circumstances. (Sec. 5, Rule 63, ROC, as
claim any interest which would be affected by
amended)
the declaration. (Sec. 2, Rule 63, ROC, as
amended)
NOTE: A refusal of the court to declare a right or
construe an instrument may be considered as the
NOTE: Notice shall be sent to the Solicitor General if
functional equivalent of the dismissal of the
subject matter involves the validity of a statute, EO
petition.
or regulation, ordinance or any governmental
regulation.
With respect to actions described as “similar
remedies,” the court cannot refuse to render a
In any action involving the validity of a local
judgment thereon (Riano, 2012).
government ordinance notice shall be sent to the
prosecutor or lawyer of the local government unit.

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Remedial Law
REQUISITES OF AN ACTION FOR 7. When the petition is based on the happening of

DECLARATORY RELIEF a contingent event;
8. When the petitioner is not the real party in
1. The subject-matter of the controversy must be interest;
a deed, will, contract, or other written 9. Where the administrative remedies have not
instrument, statute, executive order or yet been exhausted;
regulation or ordinance; 10. If the decision does not terminate uncertainty
or controversy (Albano, 2010);
2. The terms of said documents and validity 11. Action to assail judgment; and
thereof are doubtful and require judicial 12. Action to ask the court to declare filiation and
construction (Santos v. Aquino, et al., G.R. No. L- consequently hereditary rights. (Riano, 2019)
5101. 28 Nov. 1953);
NOTE: Petition for declaratory relief is not proper
3. There must have been no breach of the for the purpose of seeking enlightenment as to the
document in question (Teodoro v. Mirasol, 99 true import of a judgment. The remedy is to move
Phil. 150; Reparations Commission v. Northern for a clarificatory judgment.
Line, Inc., G.R. No. L-24835, 31 July 1970).
Otherwise, an ordinary civil action is the WHEN MAY THE COURT REFUSE
remedy; TO MAKE JUDICIAL DECLARATION
4. There must be an actual justiciable controversy GR: The court, motu proprio or upon motion, may
or ripening seeds of one between persons refuse to exercise the power to declare rights and to
whose interests are adverse; construe instruments in any case:
5. The issue must be ripe for judicial 1. Where a decision would not terminate the
determination (Tolentino v. Board of uncertainty or controversy which gave rise to
Accountancy, et al., G.R. No. L-3062, 28 Sept. the action; or
1951), as for example, where all administrative 2. In any case where the declaration or
remedies have been exhausted; and construction is not necessary and proper under
the circumstances. (Sec. 5, Rule 63, ROC, as
6. Adequate relief is not available through other amended)
means or other forms of action or proceedings.
(Ollada v. Central Bank, G.R. No. L-1357, 31 May XPN: In actions falling under special remedies:
1962; Regalado, 2017)
1. Action for reformation of an instrument
When an Action for Declaratory Relief NOT authorized under Arts. 1359 to 1369;
available 2. Action to quiet title authorized by Arts. 476 to
481 of NCC; and
1. To obtain judicial declaration of citizenship; 3. Action to consolidate ownership under Art.
2. In actions to resolve political questions; 1607 NCC.
3. Those determinatives of the issues rather than
a construction of definite status, rights and NOTE: Where the relief sought would be
relations; determinative of issues rather than a construction
4. Terms of assailed ordinances are not of definite stated rights, status, and other relations
ambiguous or of doubtful meaning; commonly expressed in written instruments, the
5. In a petition to seek relief from a moot and case is not one for declaratory judgment.
academic question; Considering that in a proceeding for declaratory
6. Where the contract or statute on which action judgment the relief which may be sought is limited
is based has been breached; only to a declaration of rights and not a

determination or trial of issues, a declaratory relief civil actions. (Philippine Deposit Insurance
proceeding is unavailable where a judgment may be Corporation v. Court of Appeals, et al., G.R. No.
made only after a judicial investigation of the issues. 126911, 30 Apr. 2003)
(Kawasaki Port Services Corp., et al. v. Amores, et al.,
G.R. No. 58340, 16 July 1991) PROCEEDINGS CONSIDERED AS SIMILAR
REMEDIES
CONVERSION TO ORDINARY ACTION
Reformation of an Instrument
If before the final termination of the case, a breach
or violation of an instrument, or a statute, executive It is not an action brought to reform not the contract
order or regulation, ordinance, or any other but to reform the instrument evidencing the
governmental regulation should take place, the contract. It presupposes that there is nothing wrong
action may be converted into an ordinary action. with the contract. The contract is to be reformed
(Sec. 6, Rule 63, ROC, as amended) because despite the meeting of minds of the parties
as to the object and cause of the contract, the
NOTE: The law does not require that there shall be instrument which is supposed to embody the
an actual pending case. It is sufficient that there is a agreement of the parties does not reflect their true
breach of law, an actionable violation, to bar a agreement by reason of mistake, inequitable
complaint for declaratory relief. (Borja v. Villadolid, conduct or accident. The action is brought so the
G.R. No. L-1897, 28 Nov. 1949) true intention of the parties may be expressed in the
instrument. (Art. 135, NCC; Riano, 2019)
Third-party Complaint NOT PROPER in actions
for Declaratory Relief When to reform Instrument
A third-party complaint is supposed to seek 1. When, there having been a meeting of the minds
contribution, indemnity, subrogation or other relief of the parties to a contract, their true intention
from the third-party defendant in respect to the is not expressed in the instrument purporting
claim of the plaintiff against him, and hence it is to embody the agreement, by reason of mistake,
improper when the main case is for declaratory fraud, inequitable conduct or accident, one of
relief which purpose is mere interpretation and the parties may ask for the reformation of the
construction. (Comm. of Customs, et al. v. Cloribel, et instrument to the end that such true intention
al. G.R. No. L-21036, 30 June 1977) A compulsory may be expressed (Art. 1359, NCC);
counterclaim may be set up. (Visayan Packing Corp.
v. Reparations Commission, G.R. No. L-20577, 31 May 2. When a mutual mistake of the parties causes the
1987) failure of the instrument to disclose their real
agreement, said instrument may be reformed.
There is nothing in the nature of a special civil action (Art. 1361, NCC);
for declaratory relief that proscribes the filing of a
counterclaim based on the same transaction, deed 3. If one party was mistaken and the other acted
or contract subject of the complaint. A special civil fraudulently or inequitably in such a way that
action is after all not essentially different from an the instrument does not show their true
ordinary civil action, except that the former deals intention, the former may ask for the
with a special subject matter which makes reformation of the instrument (Art. 1362, NCC);
necessary some special regulation. But the identity
between their fundamental nature is such that the 4. When one party was mistaken and the other
same rules governing ordinary civil suits may and knew or believed that the instrument did not
do apply to special civil actions if not inconsistent state their real agreement, but concealed that
with or if they may serve to supplement the fact from the former, the instrument may be
provisions of the peculiar rules governing special reformed (Art. 1363, NCC);

2022 GOLDEN NOTES
Remedial Law
5. When through the ignorance, lack of skill, Consolidation of Ownership

negligence or bad faith on the part of the person
drafting the instrument or of the clerk or typist, The action brought to consolidate ownership is not
the instrument does not express the true for the purpose of consolidating the ownership of
intention of the parties, the courts may order the property in the person of the vendee or buyer
that the instrument be reformed (Art. 1364, but for the registration of the property. Art. 1607
NCC); requires the filing of the petition to consolidate
ownership because the law precludes the
6. If the parties agree upon the mortgage or pledge registration of the consolidated title without judicial
of property, but the instrument states that the order. (Cruz v. Leis, G.R. No. 125233, 09 Mar. 2000)
property is sold absolutely or with a right of
repurchase, reformation of the instrument is NOTE: The concept of consolidation of ownership
proper (Art. 1365, NCC); and under Art. 1607 of Civil Code, has its origin in the
substantive provisions of the law on sales. Under
7. Reformation may be ordered at the instance of the law, a contract of sale may be extinguished
either party or his successors in interest, if the either by legal redemption (Art. 1619, NCC) or
mistake was mutual; otherwise, upon petition conventional redemption. (Art. 1601, NCC).
of the injured party, or his heirs and assigns.
(Art. 1368, NCC) Redemption
Remedy if the consent of a party to a contract has 1. Legal redemption (retracto legal) is a
been procured by Fraud, Inequitable Conduct, statutory mandated redemption of a property
or Accident previously sold.
Where the consent of a party to a contract has been 2. Conventional redemption (pacto de retro)
procured by fraud, inequitable conduct or accident, sale is one that is not mandated by the statute
and an instrument was executed by the parties in but one which takes place because of the
accordance with the contract, what is defective is stipulation of the parties to the sale.
the contract itself because of vitiation of consent.
The remedy is not to bring an action for reformation The period of redemption may be fixed by the
of the instrument but to file an action for annulment parties in which case the period cannot exceed 10
of the contract. (Art. 1359, NCC) years from the date of the contract. In the absence
of any agreement, the redemption period shall be 4
NOTE: Reformation of the instrument CANNOT be years from the date of the contract. (Art. 1606, NCC).
brought to reform any of the following:
When the redemption is not made within the period
1. Simple donation inter vivos wherein no agreed upon, in case the subject matter of the sale is
condition is imposed; a real property, Art. 1607 provides that the
2. Wills; or consolidation of ownership in the vendee shall not
3. When the real agreement is void. (Art. 1366, be recorded in the Registry of Property without a
NCC) judicial order, after the vendor has been duly heard.
NOTE: When one of the parties has brought an Quieting of Title to Real Property
action to enforce the instrument, he cannot
subsequently ask for its reformation. (Art. 1367, The action contemplates a situation where the
NCC) instrument or a record is apparently valid or
effective but is in truth and in fact invalid,
ineffective, voidable or unenforceable, and may be
prejudicial to said title to real property. This action

is then brought to remove a cloud on title to real

property or any interest therein. It may also be
brought as a preventive remedy to prevent a cloud
from being cast upon title to real property or any
interest therein. (Art. 476, NCC)
Court which has jurisdiction
According to Section 3 of Republic Act No. 7691,

which amended the Judiciary Reorganization Act of
1980, which was further amended by R.A. No. 11576
(expanded jurisdiction of first level courts) MeTCs,
MTC, and MCTC shall exercise exclusive original
jurisdiction in all 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 P400,000 exclusive
of interest, damages of whatever kind, attorney's
fees, litigation expenses and costs: Provided, That 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.

2022 GOLDEN NOTES
Remedial Law
D. CERTIORARI, PROHIBITION AND MANDAMUS
DEFINITIONS AND DISTINCTIONS
CERTIORARI PROHIBITION MANDAMUS

Definition
Mandamus is an extraordinary writ
Certiorari is an extraordinary commanding a tribunal, corporation,
Prohibition is an extraordinary
writ annulling or modifying the board or person, to do an act
writ commanding a tribunal,
proceedings of a tribunal, board required to be done:
corporation, board or person,
or officer exercising judicial or 1. When he or she unlawfully
whether exercising judicial, quasi-
quasi-judicial functions when neglects the performance of an
judicial or ministerial functions, to
such tribunal, board or officer act which the law specifically
desist from further proceedings
has acted without or in excess of enjoins as a duty, and there is
when said proceedings are
its or his jurisdiction, or with no other plain, speedy and
without or in excess of its
grave abuse of discretion adequate remedy in the
jurisdiction, or with abuse of its
amounting to lack or excess of ordinary course of law; or
discretion, there being no appeal
jurisdiction, there being no 2. When one unlawfully excludes
or any other plain, speedy and
appeal or any other plain, another from the use and
adequate remedy in the ordinary
speedy and adequate remedy in enjoyment of a right or office to
course of law. (Sec. 2, Rule 65, ROC,
the ordinary course of law. (Sec. which the other is entitled.
as amended)
1, Rule 65, ROC, as amended) (Sec. 3, Rule 65, ROC, as
amended)
Against whom
Directed against any tribunal, Directed against any tribunal, Directed against any tribunal,
board or officer exercising corporation board officer or corporation board officer or person
judicial or quasi-judicial person exercising judicial, quasi- exercising ministerial function.
function. judicial or ministerial function.
Ground
The tribunal, corporation board
The tribunal, board or officer is The tribunal, corporation board
officer or person is alleged to have
alleged to have acted without officer or person is alleged to have
acted: without jurisdiction; in
jurisdiction; in excess of unlawfully neglected a ministerial
excess of jurisdiction; or with
jurisdiction; or with grave abuse duty; or excluded another from the
grave abuse of discretion
of discretion amounting to lack use of a right or enjoyment of an
amounting to lack or excess of
or excess of jurisdiction. office.
jurisdiction.
Purpose
Purpose is for respondent to:
To have respondent desist from
To annul or nullify a proceeding. 1. Do the act required; and
further proceeding.
2. To pay damage.
Nature
This remedy is corrective – to This remedy is preventive and This remedy is affirmative or
correct usurpation of negative – to restrain or prevent positive (if the performance is
jurisdiction. (Sec. 1, Rule 65, ROC, usurpation of jurisdiction. (Sec. 2, ordered) or it is negative (if ordered
as amended) Rule 65, ROC, as amended) to desist from excluding another

from a right or office). (Sec. 3, Rule

I I 65, ROC, as amended)
Scope
Extends to discretionary and
Extends to discretionary acts. Only for ministerial acts.
I ministerial acts. I
Instances when the Petitions for Certiorari, years and must now be prohibited from acting
Mandamus and Prohibition are NOT available on the subject cases, and (2) the Court is duty-
bound to dismiss the subject cases for violation
1. Rule on Summary Procedure as to interlocutory of petitioner's constitutional rights to due
order issued by the lower court (Sec. 19(g), process and speedy disposition of cases. Is
Rules on Summary Procedure),; petitioner entitled for the issuance of the Writ of
2. Writ of Amparo against any interlocutory order Prohibition?
(Sec. 11(l), Rule on the Writ of Amparo);
3. Petition for writ of habeas data against any A: YES. For writs of prohibition, the requisites are:
interlocutory order (Sec. 1([l), A.M. No. 08-1-16); (1) it must be directed against a tribunal,
4. Small claims cases against interlocutory order corporation, board, or person exercising
issued by the lower court (Sec. 14(g), A.M. No. functions, judicial or ministerial;
08-8-7-SC) (2) the tribunal, corporation, board, or person
has acted without or in excess of its jurisdiction,
Q: On July 31, 1987, the PCGG instituted before or with grave abuse of discretion; and
the Sandiganbayan Civil Case No. 0033 against (3) there is no appeal or any other plain, speedy,
Eduardo M. Cojuangco, Jr. and other defendants and adequate remedy in the ordinary course of
for the recovery of ill-gotten wealth. The law.
complaint was subdivided into eight complaints,
in which the six remained the active cases (the The Court finds that petitioner's constitutional
subject cases). Relatedly, as early as 2003, rights to due process and speedy disposition of
petitioner raised the issue of delay in the cases have been violated in the subject cases, in
proceedings of the cases against him, which petitioner is the principal defendant, thereby
particularly the fact that trial has not yet necessitating the dismissal of the same. Notably, the
commenced therein. Sometime in 2013, inordinate delay attending the cases is primarily
petitioner reached out to PCGG reminding it of due to the Sandiganbayan's vexatious, capricious,
his right to speedy disposition of cases. While and oppressive delays in the resolution of pending
initially agreeing to proceed to trial, the PCGG motions in the subject cases and to its patently
retracted, explaining that to go directly to trial unreasonable and baseless refusal to proceed to
and to dispense with the filing of interlocutory trial in utter disregard of petitioner's constitutional
motions are not in the best interest of the rights.
Republic. On February 2, 2018, petitioner filed a
manifestation and motion to include the subject Such actions of the Sandiganbayan constitute grave
cases in the court calendar of the abuse of discretion and as a result, the said hearing
Sandiganbayan. Accordingly, the subject cases tribunal loses its jurisdiction to conduct further
remained idle and trial never commenced proceedings in the subject cases, which petitioner
Frustrated, petitioner filed the instant Petition rightly prayed for in the present Petition for
for Prohibition on July 18, 2019 on the following Prohibition. (Eduardo M. Cojuangco, Jr. v.
grounds: (1) The Sandiganbayan acted without Sandiganbayan and PCGG, G.R. No. 247982, 28 Apr.
or in excess of its jurisdiction when it allowed 2021)
the subject cases to be pending for more than 32

2022 GOLDEN NOTES
Remedial Law
CERTIORARI DISTINGUISHED FROM APPEAL BY CERTIORARI
CERTIORARI UNDER ART. VIII,

RULE 45
RULE 65 (CERTIORARI) SEC. 1 OF THE 1987
(APPEAL BY CERTIORARI)
CONSTITUTION
A special civil action that is an original
and independent action and not a Mode of Appeal
mode of appeal
The power to determine whether or
not there has been a grave abuse of
May be directed against an
Seeks to review final discretion amounting to lack or
interlocutory order or matters where
judgments or final orders excess of jurisdiction on the part of
no appeal may be taken from
any branch or instrumentality of
the Government.
GR: Involves questions of jurisdiction
GR: Involves question of law
XPN: When it is necessary to delve
into factual issues in order to resolve
XPNs: In Writ of Amparo,
allegations of grave abuse of Involves questions of jurisdiction
Habeas Data and Writ of
discretion as a ground. (Balba v. Peak
Kalikasan, it may involve both
Development, Inc., et al, G.R. No.
questions of law and facts.
148288, 12 Aug. 2005)
Review of an act by any branch or
Involves the review of the
Directed against an interlocutory instrumentality of the Government,
judgment, final orders or
order of a court or where there is no even if it does not exercise judicial,
resolutions of the CA,
appeal or any other plain, speedy or quasi-judicial or ministerial
Sandiganbayan, CTA, RTC or
adequate remedy. functions. (Araullo v. Aquino, G.R.
other courts.
No. 209287, 01 July 2014)
Filed within 15 days from
Filed not later than 60 days from
notice of judgment, final
notice of judgment, order or
order or resolution appealed
resolution sought to be assailed.
from.
Unless a writ of preliminary injunction
or temporary restraining order is Stays the judgment or order
issued, it does not stay the challenged appealed from
proceeding.
The judge, court, quasi-judicial
The appellant and the
agency, tribunal, corporation, board,
appellee are the original
officer or person shall be public
parties to the action, and the
respondents who are impleaded in the
lower court or quasi-judicial
action
agency is not impleaded.
As a general rule, motion for

reconsideration or for new trial is
required. If a motion for Motion for reconsideration is
reconsideration or new trial is filed, not required
another 60 days shall be given to the
petitioner. (A.M. No. 02-03-SC)

The court is in the exercise of

Court exercises original jurisdiction, The court exercises original
its appellate jurisdiction and
and is filed with the RTC, CA, jurisdiction and is filed with the
power of review, and is filed
Sandiganbayan or COMELEC Supreme Court.
with the Supreme Court
PROHIBITION AND MANDAMUS DISTINGUISHED FROM INJUNCTION
PROHIBITION MANDAMUS INJUNCTION

Definition
Mandamus is an extraordinary
writ commanding a tribunal,
Prohibition is an extraordinary corporation, board or person, to
Main action for injunction seeks
writ commanding a tribunal, do an act required to be done:
to enjoin the defendant from the
corporation, board or person,
commission or continuance of a
whether exercising judicial, 1. When he unlawfully neglects
specific act, or to compel a
quasi-judicial or ministerial the performance of an act
particular act in violation of the
functions, to desist from further which the law specifically
rights of the applicant.
proceedings when said enjoins as a duty, and there is
proceedings are without or in no other plain, speedy and
Preliminary injunction is a
excess of its jurisdiction, or with adequate remedy in the
provisional remedy to preserve
abuse of its discretion, there ordinary course of law; or
the status quo and prevent
being no appeal or any other
future wrongs in order to
plain, speedy and adequate 2. When one unlawfully excludes
preserve and protect certain
remedy in the ordinary course another from the use and
interests or rights during the
of law (Sec. 2, Rule 65, ROC, as enjoyment of a right or office
pendency of an action.
amended). to which the other is entitled
amended)
Nature
Special civil action Special civil action Ordinary civil action
Purpose
For the defendant either to
To prevent an encroachment,
To compel the performance of a refrain from an act or to
excess, usurpation or
ministerial and legal duty; perform not necessarily a legal
assumption of jurisdiction;
and ministerial duty
Against whom
May be directed against entities
May be directed against judicial
exercising judicial or quasi- Directed against a party
and non-judicial entities
judicial, or ministerial functions
Scope
Does not necessarily extend to
Extends to discretionary and Extends only to ministerial
ministerial, discretionary or
ministerial functions functions
legal functions
How filed
May be the main action or just a
Always the main action Always the main action
provisional remedy
Court which has jurisdiction
May be brought in the Supreme May be brought in the Supreme May be brought in the Regional
Court, Court of Appeals, Court, Court of Appeals, Trial Court which has

2022 GOLDEN NOTES
Remedial Law
Sandiganbayan, or in the Sandiganbayan, or in the Regional jurisdiction over the territorial

Regional Trial Court which has Trial Court which has jurisdiction area where respondent resides.
jurisdiction over the territorial over the territorial area where
area where respondent resides. respondent resides.
REQUISITES b. unlawfully excludes another from the use

and enjoyment of a right or office which
Requisites of a valid Certiorari such other is entitled;
1. The petition is directed against a tribunal, 4. The act to be performed is ministerial, not
board or officer exercising judicial or quasi- discretionary;
judicial functions; 5. There is no appeal or other plain, speedy and
2. Such tribunal, board or officer has acted adequate remedy in the ordinary course of law.
without or in excess of jurisdiction or with (Sec. 3, Rule 65, ROC, as amended; Riano, 2019)
grave abuse of discretion; and
3. There is neither appeal nor any plain, speedy Q: Spouses Rodriguez obtained an unfavorable
and adequate remedy in the ordinary course of decision from the HLURB Board. Afterwards,
law for the purpose of annulling or modifying they filed a Motion for Reconsideration which
the proceeding. There must be capricious, was afterwards denied. Without filing an appeal
arbitrary and whimsical exercise of power for before the Office of the President (OP), the Sps.
it to prosper. (Sec. 1 Rule 65, ROC, as amended; Rodriguez filed a Petition for Certiorari,
Aggabao v. Comelec, G.R. No. 163756, 26 Jan. Prohibition, and Mandamus (Rule 65 Petition)
2005; Riano, 2019) under Rule 65 of the Rules of Court before the CA
against the HLURB, the Sps. Santiago, Rogano,
Requisites of a valid Prohibition and the Sps. Gamboa. The CA dismissed the
petition for failure to exhaust administrative
1. The impugned act must be that of a tribunal, remedies. Is the ruling of the CA Correct?
corporation, board or person;
2. The respondent must be exercising judicial, A: YES. For a writ of certiorari to issue, a petitioner
quasi-judicial functions or ministerial must not only prove that the tribunal, board or
functions; officer exercising judicial or quasi-judicial functions
3. Respondents acted without or in excess of its has acted without or in excess of jurisdiction. He
jurisdiction or with grave abuse of discretion must also show that there is no plain, speedy and
amounting to lack of jurisdiction; and adequate remedy in the ordinary course of
4. There must be no appeal or other plain, speedy law against what he perceives to be a legitimate
and adequate remedy. (Sec. 2, Rule 65, ROC, as grievance. An available recourse affording prompt
amended) relief from the injurious effects of the judgment or
acts of a lower court or tribunal is considered a
Requisites of a valid Mandamus plain, speedy and adequate remedy.
1. There must be a clear legal right to the act To emphasize, under the Rules of Procedure of the
demanded; HLURB, "[a]ny party may, upon notice to the Board
2. It must be the duty of the defendant to perform and the other party, appeal a decision rendered by
the act because it is mandated by law; the Board of Commissioners to the Office of the
3. The defendant: President within fifteen (15) days from receipt
thereof, in accordance with P.D. No. 1344 and A.O.
a. unlawfully neglects the performance of No. 18 Series of 1987."
the duty enjoined by law; or

In the instant Petition, the Sps. Rodriguez failed to motion to dismiss in another case which is
provide any explanation whatsoever to justify their intertwined with the current action. Is RTC
failure to seek prior recourse before the OP. wrong when it did not suspend its proceedings?
(Spouses Rodriguez v. Housing and Land Use
Regulatory Board, G.R. No. 183324 & 209748, 19 June A: NO. An application for certiorari is an
2019, J. Caguioa) independent action which is not part or a
continuation of the trial which resulted in the
WHEN PETITION FOR CERTIORARI, rendition of the judgment complained of. Rule 65 of
PROHIBITION OR MANDAMUS IS PROPER the Rules of Court is explicit in stating that "the
petition shall not interrupt the course of the
Certiorari principal case unless a temporary restraining order
or a writ of preliminary injunction has been issued
It is a writ issued by a superior court to an inferior against the public respondent from further
court, board or officer exercising judicial or quasi- proceeding in the case." (Juliano-Llave v. Republic,
judicial functions whereby the record of a particular G.R. No. 169776, 30 Nov. 2011)
case is ordered to be elevated for review and
correction in matters of law. NOTE: The orders and rulings of a court on all
controversies pertaining to the case cannot be
NOTE: It is commenced by a verified petition corrected by certiorari if the court has jurisdiction
accompanied by a certified true copy of the over the subject matter and over the person. (Sea
judgment, order or resolution subject thereof, Lion Fishing Corp. v. People, G.R. No. 172678, 23 Mar.
copies of all pleadings and documents relevant and 2011)
pertinent thereto, and a sworn certification of non-
forum shopping. (Sec. 1, Rule 65, ROC, as amended) Q: Mamansual, Nadar, Apil, and Makakua, were
charged with Malversation of Public Funds
NOTE: In a petition for certiorari, the court will only under Article 217 and Removal, Concealment, or
resolve errors of jurisdiction and not errors of Destruction of Documents under Article 226 of
judgment. the RPC. The complaint alleged that LBP checks
in the name of Nadar and signed by Mamansual
An error of judgment is one which the court may were drawn against the account of the Municipal
commit in the exercise of its jurisdiction. Such an Government of Palimbang. OMB then found
error does not deprive the court of jurisdiction and probable cause to file Informations against
is correctible only by appeal; whereas an error of them. The accused filed a motion to quash and
jurisdiction is one which the court acts without or in claimed that there was an inordinate delay by
excess of its jurisdiction. Such an error renders an the conduct of OMB as it took the latter 6 years
order or judgment void or voidable and is in conducting preliminary investigation. The
correctible by the special civil action of certiorari. Sandiganbayan denied the motion. The accused
(Artistica Ceramica, Inc. v Ciudad Del Carmen then filed a Petition for Certiorari. However, the
Homeowner’s Association, Inc., G.R. Nos. 167583-84, OMB claimed that the petition has become moot
16 June 2010) (1989, 2012 BAR) and academic as the Sandiganbayan has already
found probable cause and issued warrant of
Q: Acting on a petition for declaration of nullity arrest against them. Is the contention OMB
of marriage filed by Zenaida, the RTC then ruled correct?
that the Marriage between Estrellita and
Tamano were void ab initio. Aggrieved, A: NO. the contention of the OMB is incorrect.
Estrellita argued that RTC should have waited Certiorari will lie when there is no other plain,
for the decision of the SC regarding the petition speedy, and adequate remedy, and where
for certiorari she filed, questioning the allegations of grave abuse of discretion are made in
impropriety of the lower court denying her the petition. It is an exception to the general rule,

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and it must be firmly grounded on compelling might take. Here, Ang has an available remedy to
reasons. (Mamansual v. Sandiganbayan, G.R. No. challenge the adverse decision against her by the
240378-84, 03 Nov. 2020, J. Caguioa) DENR, that is, by filing an appeal before the DENR
Secretary within the 15-day reglementary period as
Grounds for Certiorari above-cited. However, instead of interposing an
appeal, she filed a Petition for Certiorari which is an
That a tribunal, board or officer exercising judicial improper recourse. Ang failed to prove that the
or quasi-judicial functions acted: appeal with the DENR Secretary will not promptly
and fully resolve her objections on the decision and
1. Without or in excess of jurisdiction; or order of the DENR-VII. In addition, she cannot make
2. In grave abuse of discretion amounting to lack use of the certiorari petition as a substitute for a lost
or excess of jurisdiction. appeal as she had evidently erred in her choice of
remedy. At the same time, because Ang failed to
Q: Tumampos alleged that, through a timely file her appeal with the DENR Secretary, then
Confirmation for Waiver and Quitclaim, she the DENR-VII Decision and Order had attained
acquired subject property from the heirs of finality. That the DENR-VII issuances were indeed
Teodoro, the previous tax declarant and survey final and executory were noted by the CA itself when
claimant. On the other hand, Ang averred that it declared that an order of execution was already
the subject property was registered in the name issued on the DENR-VII Decision dated September
of Julio. In 1978, Pongasi bought and registered 2, 2014. (Tumampos v. Ang., G.R. No. 23505, 16 June
it in her name. Thereafter, Domosmog acquired 2021)
the same property. Domosmog’s heirs sold it to
Ang in 1994. Ang filed an application for judicial NOTE:
titling of the property. Meanwhile, Tumampos 1. Judicial function – Is where the tribunal or
filed a free patent application over the property person has the power to determine what the
with the DENR. Ang filed a formal protest against law is, what the rights of the parties are, and
it. DENR declared that it has jurisdiction over undertakes to determine these questions and
the case because the land in question still forms adjudicate upon the rights of the parties.
part of the land of public domain. It also decreed
that pursuant to the doctrine of primary 2. Without jurisdiction – Is where the
jurisdiction, it had jurisdiction over the case respondent does not have the legal power to
because the claim over the disputed land may be determine the case,
better addressed by an administrative body,
which has special competence over the 3. Excess of jurisdiction – Is where the
controversy. Ang filed a petition for Certiorari to respondent, being clothed with the power to
which the CA granted. The case now revolves on determine the case, oversteps his authority as
the question as to whether or not the CA gravely determined by law.
erred in giving due course to the Petition for
Certiorari? 4. Grave abuse of discretion – The abuse must be
grave as where the power is exercised in an
A: YES. Section 1, Rule 65 of the Rules of Court arbitrary or despotic manner by reason of
provides that a writ of certiorari shall issue in passion or personal hostility; or, it must be so
instances where the respondent tribunal, board or patent and gross as to amount to an evasion of
officer exercising judicial or quasi-judicial functions positive duty or to a virtual refusal to perform
acted without or in excess of jurisdiction or with the duty enjoined or to act at all in
grave abuse of discretion amounting to lack or contemplation of law. (Planters Products, Inc. v.
excess of jurisdiction and there is no appeal, or any Court of Appeals, G.R. No. 10150, 15 Sept. 1993)
other plain, adequate and speedy remedy in the
ordinary course of law that the aggrieved party

5. Plain, speedy and adequate remedy – Is one its Verification/Certification, it must be stressed
which promptly relieves the petitioner from the that, despite involving the same parties, the
injurious effects of the judgment and the acts of aforesaid case and the instant case involve two
the lower court or agency. (Regalado, 2017) completely different issues. On one hand, the
pending case in RTC, the issue was on the validity of
Q: BDO, still as PCI Leasing & Finance, Inc., filed the chattel mortgage executed by BDO and Sps.
a Petition for Certiorari under Rule 65 of the Chao. On the other hand, in the Certiorari Petition,
Rules of Court (Certiorari Petition) before the CA the matter in focus is the execution upon the
Special 18th Division, arguing that the RTC counter-bond filed in lieu of the final and executory
committed grave abuse of discretion in finding Decision of the RTC. Jurisprudence holds that “an
that respondent Great Domestic's liability on omission in the certificate of non-forum shopping
the counter-bond is only ₱5,000,000.00. The about any event that would not constitute res
case was docketed as CA-G.R. SP. No. 04753. The judicata and litis pendencia is not fatal as to merit
CA Special 18th Division dismissed the dismissal and nullification of the entire
the Certiorari Petition outright solely on proceedings, given that the evils sought to be
procedural grounds. First, in dismissing prevented by the said certification are not present.
the Certiorari Petition outright, the CA Special
18th Division held that petitioner BDO failed to On the contention that BDO had no legal capacity to
satisfy the rule on filing the proper certification file the Certiorari Petition, considering that when
against forum shopping, as the latter failed to PCI Leasing and Finance, Inc. changed its name to
disclose and mention the pendency of another BDO Leasing and Finance, Inc: “The corporation,
case involving petitioner BDO and respondents upon such change in its name, is in no sense a new
Sps. Chao, i.e., Civil Case No. CEB-24675 pending corporation, nor the successor of the original
before the RTC, Branch 51 for nullification of corporation. It is the same corporation with a
chattel mortgage with prayer for the issuance of different name, and its character is in no respect
a temporary restraining order and/or writ of changed. A change in the corporate name does not
preliminary injunction. Second, the CA Special make a new corporation, and whether effected by
18th Division found that petitioner BDO failed to special act or under a general law, has no effect on
attach vital pleadings and documents needed in the identity of the corporation, or on its property,
deciding whether to grant rights, or liabilities. The corporation continues, as
the Certiorari Petition. Important pleadings and before, responsible in its new name for all debts or
documents such as the Complaint, writ other liabilities which it had previously contracted
of replevin, writ of execution, and other or incurred.”
issuances and orders of the RTC were not
attached. Lastly, the CA Special 18th Division On the contention that petitioner BDO failed to
held that petitioner BDO had no legal capacity to attach vital pleadings and documents needed in
file the Certiorari Petition, considering that deciding whether to grant the Certiorari Petition:
when PCI Leasing and Finance, Inc. changed its While it is a general rule that a petition lacking
name to BDO Leasing and Finance, Inc. copies of essential pleadings and portions of the
Petitioner BDO should have sued under its new case record may be dismissed, such rule, however,
name "in order to avoid confusion and open is not petrified. As the exact nature of the pleadings
door to frauds and evasions and difficulties of and parts of the case record which must accompany
administration and supervision.". Is the denial a petition is not specified, much discretion is left to
of the petition valid? the appellate court to determine the necessity for
copies of pleading and other documents. The
A: NO. On the contention of failure to comply with documents that petitioner BDO failed to attach in its
the rule on filing the proper certification against Certiorari Petition, i.e., the Complaint, the Writ of
forum shopping: While it is not disputed that Replevin, and the Writ of Execution, are not
petitioner BDO failed to disclose the pending case in documents that will make out a prima facie case of

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grave abuse of discretion. The instant case is not a remedy for errors of judgment. Errors of
centered solely on the alleged grave abuse of judgment are correctible by appeal; errors of
discretion committed by the RTC when it held that jurisdiction are reviewable by certiorari.
the liability of respondent Great Domestic is only
P5,000,000 citing Sec. 20, Rule 57. Statements or NOTE: While the SC said in St. Martin that a special
details found in the Complaint, the Writ of Replevin, civil action under Rule 65 is proper to seek the
and the Writ of Execution will not determine review of an NLRC decision, this remedy is, by no
whether grave abuse of discretion was present. means, intended to be an alternative to an appeal. It
Even if a document is relevant and pertinent to the is not a substitute for an appeal that was devised to
petition, it need not be appended if it is shown that circumvent the absence of a statutory basis for the
the contents thereof can also be found in another remedy of appeal of NLRC decisions. It is not a
document already attached to the petition. Thus, if means to review the entire decision of the NLRC for
the material allegations in a position paper are reversible errors on questions of fact and law.
summarized in a questioned judgment, it will suffice (Philippine National Bank v. Gregorio, G.R. No,
that only a certified true copy of the judgment is 194944, 18 Sept. 2017)
attached. Here, the relevant portions of the
Complaint, the Writ of Replevin, the Writ of XPNs: A petition for certiorari may be allowed
Execution, and other issuances of the RTC have been despite the availability of the remedy of appeal
summarized and sufficiently detailed in the various when:
pleadings filed by both parties. (BDO Leasing &
Finance, Inc. v. Great Domestic Insurance Company of 1. Appeal does not constitute a speedy and
the Philippines, Inc., G.R. No. 205286. 19 June 2019, J. adequate remedy;
Caguioa) 2. Orders were issued either in excess of or
without jurisdiction;
Question of Fact raised in an Action for 3. For certain special considerations as for public
Certiorari policy or public welfare;
4. Order is a patent nullity;
GR: Only established or admitted facts can be 5. Decision in the certiorari case will avoid future
considered. (Rubio v. Reyes, G.R. No. 24581, 27 May litigation; or
1968) 6. In criminal actions, the court rejects rebuttal
evidence for the prosecution as, in case of
XPN: When it is necessary to delve into factual acquittal, there could be no remedy. (Regalado,
issues in order to resolve allegations of grave abuse 2017)
of discretion as a ground for the special civil action
of certiorari and prohibition. (Balba v. Peak Q: The trial court rendered a decision
Development, Inc., et al., G.R. No. 148288, 12 Aug. dismissing the complaint against respondents
2005; Regalado, 2017) on April 16, 2015, which became final and
executory. Petitioners filed a petition for
NOTE: In original actions for certiorari under Rule certiorari on September 28, 2015. Is petitioner’s
65, the finding of facts of the CA is not conclusive or availment of the remedy of Petition for
binding upon the SC unlike the general rule in Certiorari correct?
appeals by certiorari under Rule 45. (Medran v. CA,
G.R. No. L-1350, 26 Mar. 1949) A: NO. An order of dismissal, whether correct or
not, is a final order. A final order is appealable, in
Remedies of Appeal and Certiorari NOT accordance with the final judgment rule enunciated
exclusive in Section 1, Rule 41 of the Rules of Court declaring
that "an appeal may be taken from a judgment or
GR: Where the proper remedy is appeal, the action final order that completely disposes of the case, or
for certiorari will not be entertained. Certiorari is of a particular matter therein when declared by

these Rules to be appealable. It is settled that a is non-extendible, except in meritorious cases. The
special civil action for certiorari under Role 65 of circumstances in this case do not fall under any of
the Rules of Court is proper only when there is the exceptions to warrant a relaxation of the rule.
neither an appeal, nor plain, speedy, and adequate Petitioner invokes an understaffed office to justify
remedy in the ordinary course of law. In this case, the extension of the 60-day period. We find
there was an available remedy but the same was not petitioner's explanation unacceptable. It bears
availed of due to the inaction of petitioners. emphasizing that petitioner is represented by the
Furthermore, absent any showing of grave abuse of OSG, which commands a battery of lawyers at its
discretion, Petition for Certiorari under Rule 65 beck and call. While the handling counsel resigned
cannot be availed of. (Heirs of Cabrera v. Heirs of on April 27, 2012, the CSC had until May 18, 2012
Jurado, G.R. No. 235308, 12 May 2021) within which to file the Petition. The OSG thus had a
good number of days to file the Petition. Therefore,
Q: What is the mode of appeal applicable to the we find its excuse that it was understaffed
following cases, and what issues may be raised untenable. (Republic v. Heirs of Borja, G.R. No.
before the reviewing court/tribunal? (2017 195395, G.R. No. 207647, 11 Jan. 2021)
BAR)
Q: Modes of certiorari:
The decision or final order of the National Labor a. As a mode of appeal from the RTC or the CA
Relations Commission. to the SC;
b. As a special civil action from the RTC or the
A: There is no mode of appeal from a decision or CA to the SC;
final order of the NLRC, since such decision or final c. As a mode of review of the decisions of the
order is final and executory pursuant to Art. 229 of National Labor Relations Commission and
the Labor Code. The remedy of the aggrieved party the Constitutional Commissions. (2006
is to file a special civil action for certiorari with the BAR)
Court of Appeals. (St. Martin Funeral Home v. NLRC,
G.R. No. 130866, 16 Sept. 1998) Such special civil A:
action may raise questions both of fact and law. a. A petition for review on certiorari under Rule
(Aggabao v. COMELEC, G.R. No. 163756, 26 Jan. 26, 45 of the Rules of Court is a mode of appeal on
2005) pure questions of law as a general rule from a
judgment or final order or resolution of the CA
Q: Respondent heirs of Spouses Mauro Borja and or the RTC to the SC.
Demetria Bajao filed with the RTC of Butuan City
a Petition for Issuance of Original Certificate of b. A special civil action for certiorari under Rule
Title over Lot No. 798. On July 28, 2003, the RTC 65 of the Rules of Court is an original action
rendered its Decision granting said petition and from the RTC or the CA to the SC against any
allowing the Land Registration Authority to tribunal, board or officer exercising judicial or
issue the OCT. quasi-judicial functions raising the issue of lack
or excess of jurisdiction or grave abuse of
On March 5, 2012, the trial court ordered the discretion amounting to lack or excess of
execution of its July 28, 2003 Decision. OSG jurisdiction, there being no appeal or any plain,
received a copy of the March 5, 2012 Resolution speedy and adequate remedy in the ordinary
on March 19, 2012. On May 18, 2012, the OSG course of law.
filed a Motion for Extension, praying for an
additional 15 days within which to file the c. The mode of review of the decision of the NLRC
Petition. Should the motion be granted? is via a special civil action for certiorari under
Rule 65, but pursuant to the hierarchy of the
A: NO. It has been settled that the 60-day period courts enunciated in the case of St. Martin’s
within which a petition for certiorari should be filed Funeral Homes v. NLRC (G.R. No. 130866, 16 Sept.

2022 GOLDEN NOTES
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1998), the same should be filed with the CA. The civil action of certiorari. Even if the findings of the
mode of review of the decision of the COMELEC court are incorrect, as long as it has jurisdiction over
and the Commission on Audit, as provided the case, such correction is normally beyond the
under Rule 64 of the Rules of Court, is a special province of certiorari.
civil action for certiorari under Rule 65.
Decisions of the Civil Service Commission, In the instant case, the primary argument of SNBL is
however, are reviewable by petition for review centered on the supposed erroneous award of
filed with the CA under Rule 43 of the Rules of damages against the SNBL’s employee, accused
Court. Bingbong, made by the MTCC in its Judgment dated
December 27, 2005 convicting the latter. But such
Q: Bingbong Marcos, an employee of Solid North supposed errors merely pertain only to mistakes of
Bus Line (SNBL), was convicted in the case law and not of jurisdiction, thus putting them
People vs. Bingbong Marcos for Reckless beyond the ambit of certiorari.
Imprudence Resulting in Serious Physical
Injuries, wherein the MTCC convicted him and Furthermore, SNBL's act of assailing the award of
awarded in favor of Araneta damages and damages made by the MTCC in its Judgment dated
attorney’s fees. The decision became final and December 27, 2005 is tantamount to an attack
executory. Thus, the prosecution filed a Motion against a final and executory judgment, being a clear
for Execution against Bingbong which was violation of the doctrine of immutability of
granted. However, the writ was returned judgment. Hence, SNBL cannot now assail the
unsatisfied as the latter had allegedly no MTCC's Judgment lest the elementary principle of
properties that can be levied to satisfy the immutability of judgments be disregarded. (Davao
money judgment. Hence, upon motion, the MTCC ACF Bus Lines, Inc v. Rogelio Ang, G.R. No. 218516, 27
issued a writ of execution against SNBL being the Mar. 2019, J. Caguioa)
employer of Bingbong.
Petition for Review on Certiorari (appeal by
SNBL filed a Motion to Recall and/or Quash the certiorari) and Petition for Certiorari are
Writ of Execution. The CA held that the RTC did mutually exclusive
not err in holding that the MTCC did not commit
grave abuse of discretion in issuing its Order A petition for review on certiorari under Rule 45
denying SNBL’s Motion to Recall and/or Quash and a petition for certiorari under Rule 65 are
The Writ of Execution and ordering the conduct mutually exclusive remedies. Certiorari cannot co-
of a hearing to determine whether ACF should exist with an appeal or any other adequate remedy.
be held subsidiarily liable under Article 103 of (Portillo v. Rudolf Lietz, Inc., G.R. No. 196539, 10 Oct.
the Revised Penal Code for the civil liability ex 2012)
delicto of its employee, accused Bingbong. Is the
CA correct? Q: A number of employees of JLN Corporation
owned and managed by Napoles and her family,
A: YES. Certiorari is a remedy designed for the claimed, witnessed and some even executed a
correction of errors of jurisdiction, not errors of Sinumpaang Salaysay exposing JLN
judgment. When a court exercises its jurisdiction, an Corporation’s illegal business practice. The
error committed while so engaged does not deprive AMLC filed before the CA an ex parte application
it of the jurisdiction being exercised when the error praying for the issuance of an order to authorize
was committed. Otherwise, every error committed it to inquire into the bank accounts of those
by a court would deprive it of its jurisdiction and charged in the informations, Senators Ramon
every erroneous judgment would be a void Revilla III, Juan Ponce Enrile, and Jinggoy
judgment. Consequently, an error of judgment that Estrada. The CA allowed a supplemental bank
the court may commit in the exercise of its inquiry on other persons who were revealed to
jurisdiction is not correctible through the original be connected to the earlier examined accounts.

The Republic filed a verified petition for civil Bernardo's Notice of Appeal, RTC's contended
forfeiture against Ng before the RTC. The that the pendency of the Motion for Partial
Republic prayed for the issuance of a Consideration of Soriano precluded Bernardo
Provisional Asset Preservation Order (PAPO) from filing a Notice of Appeal. The CA
against Ng, alleging that there is a strong and ratiocinated that the RTC's Decision dated
convincing evidence concerning the August 5, 2010, despite being a judgment on the
involvement of his subject account in the pork merits, was not yet appealable, asserting that "a
barrel scam. The Republic also prayed for the final order contemplates one in which there is
issuance of an Asset Preservation Order (APO) nothing more for the court to do in order to
to prevent funds from being removed, resolve the case." The RTC believed that
transferred, concealed, or disposed. The RTC, on Bernardo could more appropriately file her
September 19, 2016, denied the prayer and Notice of Appeal only after Soriano's Motion for
granted Ng’s motion to lift the PAPO. On May 29, Partial Consideration had been decided upon. Is
2017, the Republic filed a Petition for Certiorari the denial of the appeal proper?
before the CA, which the CA denied. The main
question now is whether or not the Republic A: NO. A party's appeal by notice of appeal
properly availed the remedy of petitioner for is deemed perfected as to him upon the filing of the
certiorari under Rule 65. notice of appeal in due time. The RTC rendered its
Decision dated August 5, 2010, which resolved the
A: YES. The Court rules on the argument raised by merits of the Custody case, upholding Soriano's
Ng that the Orders dated September 19, 2016 and right to parental custody and parental authority,
May 29, 2017 attained finality when the Republic albeit ruling that it will be for the best interest of the
filed a petition for certiorari instead of an appeal child to stay with Bernardo first for the school year
before the CA. The Court explained that the remedy 2009-2010 while studying at Notre Dame of Greater
against an interlocutory order is not an appeal, but Manila.
a special civil action for certiorari under Rule 65 to
prevent multiple appeals in a single action that The subject RTC Decision, having delved into the
would unnecessarily cause delay during the trial of merits of the Custody case and having fully disposed
the case. A final judgment is appealable while an of the respective issues and causes of action raised
interlocutory order is not. Hence, the Orders dated by the parties, was undoubtedly a judgment on the
September 19, 2016 and May 29, 2017 of the RTC merits and not a mere interlocutory order. The RTC
have not attained finality because the Republic decided on the subject matter of the case, i.e., the
availed itself of the correct remedy before the CA. custody of Stephanie. Being an appealable judgment
(Republic v. Ng., G.R. No. 239047, 16 June 2021) on the merits, Bernardo had the right to appeal
under Rule 41 of the Rules of Court the RTC's
Q: The RTC rendered its Decision dated August Decision by filing a notice of appeal within 15 days
5, 2010, which resolved the merits of a Custody from receipt of the RTC's Order dated August 31,
case, upholding Soriano's right to parental 2010 denying Bernardo's timely-filed Motion for
custody and parental authority, albeit ruling Reconsideration. This was exactly what Bernardo
that it will be for the best interest of the child to did. She timely filed a Notice of Appeal, containing
stay with Bernardo first for the school year all the required contents of a notice of appeal under
2009-2010 while studying at Notre Dame of Section 5, Rule 41 of the Rules of Court and paid the
Greater Manila. Bernardo filed a motion for corresponding appeal fees on September 8, 2010.
reconsideration. RTC issued an Order dated Assuming of course that the notice of appeal
August 31, 2010 denying Bernardo's timely- satisfies the content requirements set under Section
filed Motion for Reconsideration. Bernardo filed 5, Rule 41 of the Rules of Court, the approval of a
a Notice of Appeal on September 8, 2010. RTC notice of appeal becomes the ministerial duty of the
issued Order dated September 9, 2010 denying lower court, provided the appeal is filed on time.
Bernardo's Notice of Appeal. In denying

2022 GOLDEN NOTES
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With respect to Bernardo, the RTC's Decision did especially if such loss or lapse was due to one’s own
not cease to be an appealable judgment, negligence or error in the choice of remedies.
transforming into a mere interlocutory order, for (Dabon v. CA, G.R. No. 174937, 13 June 2012)
the sole reason that the opposing party, Soriano,
filed her own Motion for Partial Q: The prosecutor filed a Motion to Withdraw
Reconsideration. The RTC and CA seem to have Information stating that there was lack of
confused the right of a party to appeal and the right probable cause to hold Carandang liable for
of another party to file a motion for reconsideration. estafa. The RTC granted the Motion to Withdraw
There is nothing in the Rules which makes a party's Information. Personal Collection filed a petition
right to appeal dependent or contingent on the for certiorari with the CA arguing that the RTC
opposing party's motion for reconsideration. acted with grave abuse of discretion when it
Similarly, a party's undertaking to file a motion for issued the order granting the Motion to
reconsideration of a judgment is not hindered by Withdraw Information. The CA dismissed the
the other party's filing of a notice of appeal. petition for certiorari for lack of merit. The CA
Jurisprudence holds that "each party has a different pointed out that the private offended party’s
period within which to appeal “and that "[s]ince interest in a criminal case was limited to its civil
each party has a different period within which to aspect. It found that the petition for certiorari
appeal, the timely filing of a motion for already involved matters beyond the civil aspect
reconsideration by one party does not interrupt the of the estafa case against Carandang. In praying
other or another party's period of appeal." for annulment of the trial court orders, Personal
(Bernardo v. Soriano, G.R. No. 200104. June 19, 2019, Collection was asking for the reinstatement of
J. Caguioa) the criminal case, which only the State, through
the Office of the Solicitor General, could do. Did
Q: Jovina filed a Complaint for Nullity of Deed of the CA correctly rule that the petition for
Absolute Sale on the ground that her signature certiorari was improper, since it is only the State
therein is forged. The complaint was favorably which may pray for the reinstatement of the
decided by the lower court, however the same criminal case?
was reversed on appeal. Aggrieved, Jovina filed
a petition for certiorari under Rule 65 before the A: YES. An order granting a motion to withdraw an
Supreme Court to assail the CA’s decision. Is information and dismissing a criminal case is final
Jovina’s action proper? because it disposed of the case and terminated the
proceedings therein, leaving nothing to be done by
A: NO. The proper remedy of a party aggrieved by a the court. Thus, the remedy to question this final
judgment, final order, or resolution of the CA is to order is an appeal. It is elementary that the special
file with the Supreme Court a verified petition for civil action of certiorari is not and cannot be a
review on certiorari under Rule 45 within 15 days substitute for an appeal, where the latter remedy is
from notice of the judgment, final order, or available for an appeal, where the latter remedy is
resolution appealed from. Obviously, Jovina, in filing available, as it was in this case. (Personal Collection
a petition for certiorari under Rule 65 of the Rules Direct Selling, Inc. v. Carandang, G.R. No. 206958, 08
of Court, availed of the wrong remedy. Unlike a Nov. 2017)
petition for review on certiorari under Rule 45,
which is a continuation of the appellate process over Certiorari is not a substitute for a Lost Appeal
the original case, a special civil action for certiorari
under Rule 65 is an original or independent action The filing of a petition for certiorari as a substitute
based on grave abuse of discretion amounting to for a lost appeal is erroneous. Certiorari is not and
lack or excess of jurisdiction. It will lie only if there cannot be made a substitute for an appeal where the
is no appeal or any other plain, speedy, and latter remedy is available but was lost through fault
adequate remedy in the ordinary course of law. As or negligence.
such, it cannot be a substitute for a lost appeal,

GR: Certiorari is not available when the period for Material Dates in the Petition
appeal has lapsed.
Under the material date rule, the following material
XPNs: dates must be stated in the petition:
1. When public welfare and the advancement of
public policy dictates; 1. When notice of the judgment, final order or
2. When the broader interest of justice so resolution subject of the petition was received;
requires; 2. When a motion for new trial or reconsideration
3. When the writs issued are null and void; and was filed, if any; and
4. When the questioned order amounts to an 3. When notice of the denial of the motion for new
oppressive exercise of judicial authority. trial or reconsideration was received. (Sec. 3,
Necessity for a Motion for Reconsideration
The requirement is for the purpose of determining
GR: As a general rule, a motion for reconsideration the timeliness of the petition. (Riano, 2016; Great
is a prerequisite for the availment of a petition for Southern Maritime Services Corporation v. Acuna,
certiorari under Rule 65. (Chua v. People of the G.R. No. 140189, 28 Feb. 2005)
Philippines, G.R. No. 195248, 22 Nov. 2017)
The 60-day period starts to run from the date
XPNS: petitioner receives the assailed judgment, final
1. Where the order is a patent nullity, as where the order or resolution, or the denial of the motion for
court a quo has no jurisdiction; reconsideration or new trial timely filed, whether
2. Where the questions raised in the certiorari such motion is required or not. To establish the
proceedings have been duly raised and passed timeliness of the petition for certiorari, the date of
upon by the lower court, or are the same as receipt of the assailed judgment, final order or
those raised and passed upon in the lower resolution or the denial of the motion for
court; reconsideration or new trial must be stated in the
3. Where there is an urgent necessity for the petition; otherwise, the petition for certiorari must
resolution of the question and any further delay be dismissed. (Isabelita Vinuya, et al. v. Honorable
would prejudice the interests of the Executive Secretary Alberto Romulo, G.R. No. 162230,
Government or of the petitioner or the subject 28 Apr. 2010)
matter of the action is perishable;
4. Where, under the circumstances, a motion for Offended Party in a Criminal Case
reconsideration would be useless;
5. Where petitioner was deprived of due process Procedural law basically mandates that all criminal
and there is extreme urgency for relief; actions commenced by complaint or by information
6. Where, in a criminal case, relief from an order shall be prosecuted under the direction and control
of arrest is urgent and the granting of such relief of a public prosecutor. In appeals of criminal cases
by the trial court is improbable; before the CA and before the SC, the OSG is the
7. Where the proceedings in the lower court are a appellate counsel of the People.
nullity for lack of due process; While there may be rare occasions when an
8. Where the proceeding was ex parte or in which offended party may be allowed to pursue the
the petitioner had no opportunity to object; and criminal action on his own behalf, it can only apply
9. Where the issue raised is one purely of law or when there is a denial of due process. (Jimenez v.
where public interest is involved. (Republic of Sorsogon, G.R. No. 178607, 05 Dec. 2012)
the Philippines v. Bayao, G.R. No. 179492, 05 June
2013) Q: JMV granted an accommodation in favor of
Mandagan by allowing her to use its corporate
name and account for a car loan intended for her

2022 GOLDEN NOTES
Remedial Law
personal use. Upon full payment of the car, was only allowed where the prosecution was
Mandagan would in turn purchase the same denied due process or where the trial was a sham.
from JMV Corporation. Thereafter, JMV However, there was nothing in the decision of the
Corporation entered into a lease-to-own RTC that would render it under the ambit of such
arrangement with BPI. Under the arrangement, exceptional circumstances. (Mandagan v. Jose M.
BPI will remain the registered owner of the Valero Corp., G.R. No. 215118. 19 June 2019, J.
vehicle until full payment by JMV Corporation. Caguioa)
Mandagan issued 34 postdated checks.
However, 11 checks were dishonored upon PROHIBITION
deposit. BPI advised JMV every time the checks
were dishonored, who in turn immediately It is a remedy to prevent inferior courts,
communicated the dishonor of said checks to corporations, boards, or persons from usurping or
Mandagan and demanded for payment which exercising a jurisdiction or power which they have
were all unheeded. JMV's counsel then not been vested by law.
demanded from Mandagan the payment of the
11 checks that were dishonored or to return the NOTE: It is commenced by a verified petition
Kia vehicle, plus depreciation costs. Mandagan accompanied by a certified true copy of the
was given 5 days to comply, but went unheeded. judgment, order or resolution subject thereof,
Thus, JMV was constrained to institute the copies of all pleadings and documents relevant and
corresponding legal action against Mandagan. pertinent thereto, and a sworn certification of non-
The City Prosecutor's Office filed informations forum shopping. (Sec. 2, Rule 65, ROC, as amended)
against Mandagan for 8 counts of Violation of
B.P. 22. The MeTC found Mandagan guilty of When issued
eight counts of violation of BP 22. However, the
RTC reversed it and acquitted Mandagan of the GR: Prohibition does not ordinarily lie to restrain an
criminal charges against her. Nonetheless, the act which is already fait accompli.
RTC held Mandagan to be civilly liable to JMV.
Aggrieved, JMV filed a Petition for Certiorari. In XPN: It will lie to prevent the creation of a new
turn, the CA annulled the RTC decision and province by those in the corridors of power who
reinstated the MeTC Decision. On review before could avoid judicial intervention and review by
the Supreme Court under Rule 45, Mandagan merely speedily and stealthily completing the
argued that CA committed grave abuse of commission of such illegality. (Tan v. COMELEC, G.R.
discretion when it annulled the RTC Decision No. 73155, 11 July 1986)
acquitting her. Will the petition prosper?
NOTE: Prohibition, and not mandamus, is the
A: YES. In criminal cases, no rule is more settled remedy where a motion to dismiss is wrongfully
than that a judgment of acquittal is immediately denied. (Enriquez v. Macadaeg, G.R. No. L-2422, 30
final and unappealable. Such rule proceeds from the Sept. 1949)
accused’s constitutionally-enshrined right against
prosecution if the same would place him under Q: A files a Complaint against B for recovery of
double jeopardy. Thus, a judgment in such cases, title and possession of land situated in Makati
once rendered, may no longer be recalled for with the RTC of Pasig. B files a Motion to Dismiss
correction or amendment — regardless of any claim for improper venue. The RTC Pasig Judge denies
of error or incorrectness. The Court is not unaware B's Motion to Dismiss, which obviously was
that, in some situations, it had allowed a review incorrect. Alleging that the RTC Judge
from a judgment of acquittal through the "unlawfully neglected the performance of an act
extraordinary remedy of a Rule 65 petition which the law specifically enjoins as a duty
for certiorari. A survey of these exceptional resulting from an office," A files a Petition for
instances would, however, show that such review

Mandamus against the judge. Will Mandamus judicial or ministerial; (2) the tribunal, corporation,
lie? Reasons. (2012 BAR) board, or person has acted without or in excess of
its jurisdiction, or with grave abuse of discretion;
A: NO, mandamus will not lie. The proper remedy is and (3) there is no appeal or any other plain, speedy,
a petition for prohibition. (Serena v. Sandiganbayan and adequate remedy in the ordinary course of law.
G.R. No. 162059, 22 Jan. 2008) The dismissal of the
case based on improper venue is not a ministerial The Court finds that petitioner's constitutional
duty. Mandamus does not lie to compel the rights to due process and speedy disposition of
performance of a discretionary duty. (Nilo Paloma v. cases have been violated in the subject cases, in
Danilo Mora, G.R. No. 157783, 23 Sept. 2005) which petitioner is the principal defendant, thereby
necessitating the dismissal of the same. Notably, the
Q: On July 31, 1987, the PCGG instituted before inordinate delay attending the cases is primarily
the Sandiganbayan Civil Case No. 0033 against due to the Sandiganbayan's vexatious, capricious,
Eduardo M. Cojuangco, Jr. and other defendants and oppressive delays in the resolution of pending
for the recovery of ill-gotten wealth. The motions in the subject cases and to its patently
complaint was subdivided into eight complaints, unreasonable and baseless refusal to proceed to
in which the six remained the active cases (the trial in utter disregard of petitioner's constitutional
subject cases). Relatedly, as early as 2003, rights.
petitioner raised the issue of delay in the
proceedings of the cases against him, Such actions of the Sandiganbayan constitute grave
particularly the fact that trial has not yet abuse of discretion and as a result, the said hearing
commenced therein. Sometime in 2013, tribunal loses its jurisdiction to conduct further
petitioner reached out to PCGG reminding it of proceedings in the subject cases, which petitioner
his right to speedy disposition of cases. While rightly prayed for in the present Petition for
initially agreeing to proceed to trial, the PCGG Prohibition. (Eduardo M. Cojuangco, Jr. v.
retracted, explaining that to go directly to trial Sandiganbayan and PCGG, G.R. No. 247982, 28 Apr.
and to dispense with the filing of interlocutory 28, 2021)
motions are not in the best interest of the
Republic. On February 2, 2018, petitioner filed a Exhaustion of administrative remedy necessary
manifestation and motion to include the subject in order for an action for prohibition
cases in the court calendar of the
Sandiganbayan. Accordingly, the subject cases In order for prohibition to lie against an executive
remained idle and trial never commenced officer, the petitioner must first exhaust all
Frustrated, petitioner filed the instant Petition administrative remedies, as prohibition is available
for Prohibition on July 18, 2019 on the following only when there are no other plain, speedy and
grounds: (1)The Sandiganbayan acted without adequate remedies in the ordinary course of law.
or in excess of its jurisdiction when it allowed (Cabedo, et al. v. Dir. of Lands, et al., G.R. No. L-12777,
the subject cases to be pending for more than 32 23 May 1961)
years and must now be prohibited from acting The availability of an administrative remedy via a
on the subject cases, and (2)the Court is duty- complaint filed before the NEA precludes
bound to dismiss the subject cases for violation respondent from filing a petition for prohibition
of petitioner’s constitutional rights to due before the court. It is settled that one of the
process and speedy disposition of cases. Is requisites for a writ of prohibition to issue is that
petitioner entitled for the issuance of the Writ of there is no plain, speedy and adequate remedy in
Prohibition? the ordinary course of law. In order that prohibition
will lie, the petitioner must first exhaust all
A: YES. For writs of prohibition, the requisites are: administrative remedies. (Samar II Electric
(1) it must be directed against a tribunal, Cooperative, Inc. v. Seludo, Jr., G.R. No. 173840, 25
corporation, board, or person exercising functions, Apr. 2012)

2022 GOLDEN NOTES
Remedial Law
Prohibition vs. Injunction to direct the exercise of judgment in a particular

manner.
PROHIBITION INJUNCTION
Directed to court itself, Directed only to the NOTE: Generally, mandamus will not lie to enforce
commanding it to party litigants, without purely private contract rights and will not lie
cease from the exercise in any manner against an individual unless some obligation in the
of a jurisdiction to interfering with the nature of a public or quasi-public duty is imposed.
which it has no legal court. (De Los Angeles To preserve its prerogative character, mandamus is
claim. (Esquivel v. v. CA, G.R. Nos. L-34317 not used for the redress of private wrongs, but only
Ombudsman, GR No. & L-34335, 30 Sept. in matters relating to the public. (Uy Kiao Eng v.
137237, 17 Sept. 2002) 1974) Nixon Lee, G.R. No. 176831, 15 Jan. 2010)
MANDAMUS Q: Albert was appointed Election Registrar of

the Municipality of Sevilla supposedly to replace
It is a writ issued in the name of the State, to an the respondent Election Registrar Richard who
inferior tribunal, corporation, board or person, was transferred to another municipality
commanding the performance of an act which the without his consent and who refused to accept
law enjoins as a duty resulting from an office, trust his aforesaid transfer, as in fact he continued to
or station. occupy his aforesaid position and exercise his
functions thereto. Albert then filed a petition for
NOTE: It is commenced by a verified petition mandamus against Richard but the trial court
accompanied by a sworn certification of non-forum dismissed Albert's petition contending that quo
shopping. (Sec. 3, Rule 65, ROC, as amended) warranto is the proper remedy. Is the court
correct in its ruling? Why? (2001 BAR)
Grounds for mandamus
A: YES. Mandamus will not lie. This remedy applies
1. When any tribunal, corporation, board, officer only where petitioner’s right is founded clearly in
or person unlawfully neglects the performance law, not when it is doubtful. Richard was
of an act which the law specifically enjoins as a transferred without his consent. It is tantamount to
duty resulting from an office, trust or station; removal without cause and is contrary to
or fundamental guarantee on non-removal except for
cause. Considering that Richard continued to
2. When any tribunal, corporation, board, officer occupy the position and exercise his functions
or person unlawfully excludes another from therein, the proper remedy is quo warranto and not
the use and enjoyment of a right or office to mandamus.
which the other is entitled. (Sec. 3, Rule 65, ROC,
as amended) Q: Petitioner Lihayhay in pursuant to RA 2338
wrote two letters to Atty. Pitargue, giving
Discretionary Acts not compellable by confidential information regarding the ill-
Mandamus gotten wealth of the Marcoses. In these letters,
he also alleged that upon recovery he must be
It is settled that mandamus is employed to compel given the informant’s fee upon recovery of such
the performance, when refused, of a ministerial ill-gotten wealth. Twenty (20) years thereafter,
duty, but not to compel the performance of a the petitioner wrote to the CIR, President GMA
discretionary duty. and the Department of Finance that he be
rewarded the 25% of the 18 billion pesos
However, even when the act sought to be performed recovered from the Marcoses from the
involves the exercise of discretion, the respondent compromise agreement the Marcoses had with
may be directed to act by mandamus, but this is not the government. Without waiting for any action

on the part of the Department of finance, the should "sue China with (sic) the International
petitioner the present petition for mandamus Court of Justice [(ICJ)] and demand that China
and damages, with a prayer for a writ of should pay for the Kalayaan Islands which it
garnishment insisting on his entitlement to took from us for trillions of Dollars in damages."
informer’s rewards amounting to 11 billion, and Is the filing of the Petition for Mandamus
that the DENR be ordered to transfer to him proper?
several governmental lands, and that the
Governor of Bangko Sentral be ordered to A: NO. Section 3, Rule 65 of the Rules of Court
garnish in his favor 50 billion worth of jewelry provides that a mandamus petition may be resorted
recovered from first lady Imelda Marcos. Is the to when any tribunal, corporation, board, officer or
petitioner entitled to the writs he prayed for? person unlawfully neglects the performance of an
act which the law specifically enjoins as a duty
A: NO. The grant of an informer's reward for the resulting from an office, trust, or station.
discovery, conviction, and punishment of tax
offenses is a discretionary quasi-judicial matter that Mandamus is used merely to compel action and to
cannot be the subject of a writ of mandamus. It is not coerce the performance of a pre-existing duty; it
a legally mandated ministerial duty. This reward does not lie to control discretion. For a petition
cannot be given to a person who only makes for mandamus to prosper, it must be shown that the
sweeping averments about undisclosed wealth, subject of the petition is a ministerial act or duty on
rather than specific tax offenses, and who fails to the part of the board, officer or person, and that the
show that the information which he or she supplied petitioner has a well-defined, clear and certain right
was the undiscovered pivotal cause for the to warrant the grant thereof. It falls on the
revelation of a tax offense, the conviction and/or petitioner to show that his clear legal right to the
punishment of the persons liable, and an actual performance of the act, and a corresponding
recovery made by the State. Indiscriminate, compelling duty on the part of the respondent to
expendable information negates a clear legal right perform the act.
and further impugns the propriety of issuing a writ
of mandamus. A writ of mandamus is issued when For all his posturing, however, petitioner has failed
there is a concurrence between a clear legal right to point to any law that specifically requires the
accruing to petitioner and a correlative duty President to go to the UN or the ICJ to sue China for
incumbent upon respondents to perform an act, this its incursions into our exclusive economic zone
duty being imposed upon them by law and there is (EEZ). Neither has he shown a clear and
no other plain, speedy and adequate remedy in the unmistakable constitutional or statutory provision
ordinary course of law. (Lihayhay v. Treasurer of the which prescribes how the President is to respond to
Philippines, G.R. No. 192223, 23 July 2018) any threat (actual or imminent) from another State
to our sovereignty or exercise of our sovereign
Q: By a Petition for Mandamus, Atty. Esmero rights. (Atty. Esmero v. President Duterte, G.R. No.
sought the issuance of a writ to compel 256288, 29 June 2021)
President Duterte to comply with his
constitutional duty to defend the national Exhaustion of Administrative Remedies
territory, which includes the West Philippine
Sea, against Chinese incursions. Petitioner GR: Mandamus will not issue when administrative
submits that it is the ministerial duty of the remedies are still available.
President, as part of his mandate to enforce the
laws and see to their faithful execution, to XPNs:
"defend" the national territory by going before 1. If the party is in estoppel (Vda. de Tan v.
the United Nations (UN) to ask the latter to send Veterans Backpay Commission, G.R. No. L-
"UN Patrol Boats x x x to protect our fishermen." 12944, 30 Mar. 1959); or
It is also petitioner's view that the Philippines

2022 GOLDEN NOTES
Remedial Law
2. Only questions of law are raised. (Madrigal v. In the present case, Marzan's reinstatement to her
Lecaroz, G.R. No. L-46218, 23 Oct. 1990) former position constitutes a discretionary act
which cannot be compelled through a writ of
Discretionary duty mandamus. In this light, the Court finds no basis to
grant Marzan's prayer for moral and exemplary
GR: Mandamus is only applicable to a ministerial damages, litigation expenses and costs of suit.
duty. However, mandamus can be used to the extent (Marzan v. City of Olongapo, G.R. No. 232769, 03 Nov.
of requiring the performance of a discretionary duty 2020, J. Caguioa)
to act but not to require performance of such duty
in a particular manner. Q: The Ombudsman found probable cause to
charge with plunder the provincial governor,
XPNs: vice governor, treasurer, budget officer, and
1. There has been gross abuse of discretion; accountant. An Information for plunder was
2. Manifest injustice; or filed with the Sandiganbayan against the
3. Palpable excess of authority (Kant Wong v. provincial officials except for the treasurer who
PCGG, G.R. No. 79484, 07 Dec. 1987) was granted immunity when he agreed to
cooperate with the Ombudsman in the
Q: Marzan was appointed by Mayor Gordon of prosecution of the case. Immediately, the
Olongapo City as the City Government governor filed with the Sandiganbayan a
Department Head II of OCPD. Subsequently, she petition for certiorari against the Ombudsman
was appointed as the City Government claiming there was grave abuse of discretion in
Department Head II of the CBO. Upon the excluding the treasurer from the Information.
assumption of office of the new mayor, Mayor Will the writ of mandamus lie to compel the
Paulino, he appointed Balde to Marzan’s former Ombudsman to include the treasurer in the
position. However, the CSC later disapproved Information? (2015 BAR)
Marzan her appointment as the City
Government Department Head II of the CBO. A: NO. Mandamus will not lie to compel the
With this, Barroga informed Marzan that the Ombudsman to include the treasurer in the
City of Olongapo City will be terminating her Information. In matters involving exercise of
service. Marzan inquired to the CSC Regional judgment and discretion, mandamus may only be
Office III of the effect of the disapproval of her resorted to in order to compel respondent tribunal,
appointment. In the meantime, she still went to corporation, board, officer or person to take action,
work. However, six men and from the Civil but it cannot be used to direct the manner or
Security Service Unit and Balde was in her office particular way discretion is to be exercised, or to
one day. Marzan was ordered to remove her compel the retraction or reversal of an action
things and she was evicted. With this, Marzan already taken in the exercise of judgment or
filed a petition for mandamus praying the court discretion. (Ampatuan, Jr. v. Secretary De Lima, G.R.
to order the respondents to reinstate her to her No. 197291, 03 Apr. 2013)
former position. Will mandamus lie in this case?
Prayer in a Petition for Mandamus
A: NO. The writ of mandamus shall only issue to
compel the performance of a ministerial act, or "one a. That judgment be rendered commanding the
in which an officer or tribunal performs in a given respondent to do the act required to be done to
state of facts, in a prescribed manner, in obedience protect the rights of the petitioner; and
to a mandate of legal authority, without regard to or b. That the respondent pays the damages
the exercise of his own judgment upon the propriety sustained by the petitioner by reason of the
or impropriety of an act done." Thus, mandamus wrongful acts of the respondent. (Sec. 3, Rule 65,
will not lie to compel the performance of a ROC, as amended; Riano, 2019)
discretionary act.

Q: Roldan was charged with illegal possession of Q: Fotokina filed with the RTC a petition for
shabu before the RTC. Although bail was mandamus to compel the COMELEC to
allowable under his indictment, he could not implement a contract it had with the former
afford to post bail, and so he remained in regarding the automation of the elections. The
detention at the City Jail. For various reasons, Office of the Solicitor General (OSG),
the arraignment of Roldan was postponed 19 representing COMELEC Chairman Go, opposed
times over a period of 2 years. Twice during that the petition on the ground that mandamus does
period, Roldan’s counsel filed motions to not lie to enforce contractual obligations.
dismiss, invoking the right of the accused to a During the proceedings, the majority
speedy trial. Both motions were denied by the Commissioners filed a manifestation that
RTC. Can Roldan file a petition for mandamus? Chairman Go was not authorized by the
Reason briefly. (2007 BAR) COMELEC En Banc to oppose the petition.
A: YES. Roldan can file a petition for mandamus, a. May the OSG represent Chairman Go before
invoking the right to a speedy trial. Mandamus is a the RTC notwithstanding that his position is
proper recourse for citizens who seek to enforce a contrary to that of the majority?
public right and to compel the performance of a b. Is a petition for mandamus an appropriate
public duty, most especially when the public right remedy to enforce contractual obligations?
involved is mandated by the Constitution. Besides, (2006 BAR)
it has long been established in this jurisdiction that
the writ of mandamus is available to the accused to A:
compel a dismissal of the case. Here, the a. YES. The OSG can represent Chairman Go
arraignment of Roldan was postponed 19 times before the RTC. The OSG is an independent
over a period of 2 years. Hence, the petition for office. Its hands are not shackled to the cause of
mandamus is proper in this case. (Symaco v. Aquino, its client agency. In the discharge of its tasks,
G.R. No. L-14535, 30 Jan. 1960) the primordial concern of the OSG is to see to it
that the best interest of the government is
Awards of Damages in Mandamus Proceedings upheld.
b. NO. The COMELEC cannot be compelled by a
The CA, in resolving a petition for mandamus, is writ of mandamus to discharge a duty that
authorized to award civil damages in the same involves the exercise of judgment and
petition. (Vital-Gozon v. CA, G.R. No. 101428, 03 Aug. discretion, especially where disbursement of
1992) public funds is concerned. (COMELEC v.
Quijano-Padilla, G.R. No. 151992, 18 Sept. 2002)
Q: Can a mayor be compelled by mandamus to
issue a business permit? Mandamus vs. Injunction
A: NO. A mayor cannot be compelled by mandamus MANDAMUS INJUNCTION

to issue a business permit since the exercise of the Preventive; To prevent
same is delegated police power hence, discretionary Remedial; To perform an act to maintain
in nature. Section 444(b)(3)(iv) of the Local positive legal duty. It is status quo between
Government Code of 1991, is a manifestation of the a special civil action. parties. It is an
delegated police power of a municipal corporation. ordinary civil action.
Necessarily, the exercise thereof cannot be deemed To set in motion and to
To restrain motion or
ministerial. As to the question of whether the power compel action (active).
to enforce inaction
is validly exercised, the matter is within the
(conservative).
province of a writ of certiorari, but certainly, not of
mandamus. (Rimando v. Naguilian Emission Testing
Center, Inc., G.R. No. 198860, 23 July 2012)

2022 GOLDEN NOTES
Remedial Law
Directed against a or a temporary restraining order from the RTC

Directed against a
tribunal, corporation prohibiting the judge from proceeding in the case
litigant
board, or officer during the pendency of the petition for certiorari.
(Diaz v. Diaz, G.R. No. 135885, 28 Apr. 2000)
Remedy of Public respondent if no Temporary
Restraining Order or Writ of Preliminary Q: A filed with the MTC of Manila an action for
Injunction was issued by the court hearing the specific performance against B, a resident of
Petition for Certiorari, Prohibition or Mandamus Quezon City, to compel the latter to execute a
deed of conveyance covering a parcel of land
The public respondent shall proceed with the situated in Quezon City having an assessed value
principal case within 10 days from the filing of a of P19,000.00. B received the summons and a
petition for certiorari with a higher court or copy of the Complaint of 02 January 2003. On 10
tribunal, absent a temporary restraining order or a January 2003, B filed a Motion to Dismiss the
preliminary injunction, or upon its expiration. Complaint on the ground that the subject matter
Failure of the public respondent to proceed with the of the suit was incapable of pecuniary
principal case may be a ground for an estimation. The court denied the motion. In due
administrative charge. (Sec. 7, Rule 65, as amended time, B filed with the RTC a Petition for
by A.M. No. 07-7-12-SC) Certiorari praying that the said Order be set
aside because the MTC has no jurisdiction over
INJUNCTIVE RELIEF the case. On 13 February 2003, A filed with the
MTC a Motion to declare B in default. The motion
When proper was opposed by B on the ground that his Petition
for Certiorari was still pending.
The court in which the petition is filed may issue
orders expediting the proceedings, and it may also Resolve the Motion to Declare the Defendant in
grant a TRO or a writ of preliminary injunction for Default. (1997, 2003, 2012 BAR)
the preservation of the rights of the parties pending A: The Court could declare B in default because B
such proceedings. (Sec. 7, Rule 65, ROC, as amended) did not obtain a writ of preliminary injunction or a
The public respondent shall proceed with the temporary restraining order from the RTC
principal case within 10 days from the filing of a prohibiting the judge from proceeding in the case
petition for certiorari with a higher court or during the pendency of the petition for certiorari.
tribunal, absent a TRO or a Writ of Preliminary (Sec. 7 Rule 65, ROC, as amended; Diaz v. Diaz, G.R.
Injunction, or upon its expiration. (AM 07-7-12-SC, No. 135885, 28 Apr. 2000)
December 12, 2007)
WHEN AND WHERE TO FILE PETITION
Q: In an action for specific performance in the
MTC, defendant Sarah filed a motion to dismiss Where to file
the action based on lack of jurisdiction over the
subject matter. Sarah’s motion to dismiss was 1. Supreme Court- Subject to the doctrine of
denied. Sarah filed a petition for certiorari with hierarchy of courts and only when compelling
the RTC. Vince then filed with the MTC a motion reasons exist for not filing the same with the
to declare Sarah in default. The motion was lower courts.
opposed by Sarah on the ground that his petition 2. Court of Appeals only- If the petition involves
for certiorari was still pending. Resolve the an act or an omission of a quasi-judicial agency,
motion to declare the defendant in default. unless otherwise provided by law or rules.
(2003 BAR) 3. Court of Appeals and Sandiganbayan-
Whether or not in aid of appellate jurisdiction.
A: The court can declare Sarah in default because
she did not obtain a writ of preliminary injunction

4. Regional Trial Court- If the petition relates to NOTE: Under Sec. 4, Rule 65 of the Rules of Court
an act or an omission of an MTC, corporation, and as applied in Laguna Metts Corporation, the
board, officer or person. general rule is that a petition for certiorari must be
5. COMELEC- In election cases involving an act or filed within 60 days from notice of the judgment,
an omission of an MTC or RTC. order or resolution sought to be assailed. Under
exceptional circumstances, however, and subject to
NOTE: If the petition relates to an act or an omission the sound discretion of the court, said period may
of a municipal trial court or of a corporation, a be extended pursuant to Domdom, Labao, abd Mid-
board, an officer or a person, it shall be filed with the Islands Power cases.
RTC exercising jurisdiction over the territorial area
as defined by the Supreme Court. It may also be filed The exceptions are:
with the Court of Appeals or with the
Sandiganbayan, whether or not the same is in aid of 1. To serve substantial justice;
the courts appellate jurisdiction. If the petition 2. Safeguard strong public interest (Republic v. St.
involves an act or an omission of a quasi-judicial Vincent de Paul Colleges, Inc., G.R. No. 192908, 22
agency, unless otherwise provided by law or these Aug. 2012)
rules, the petition shall be filed with and be
cognizable only by the Court of Appeals. (Sec. 4, Rule Effects of filing a Petition for Certiorari,
65 as amended by A.M. No. 07-7-12-SC) Prohibition or Mandamus to the Principal case
NOTE: By virtue of the amendment introduced by It does not:

A.M. No. 07-7-12-SC to Sec. 4, Rule 65, a petition for
certiorari, prohibition or mandamus may not be 1. Interrupt the course of the principal action;
filed directly with the SC anymore. 2. Affect the running of the reglementary periods
involved in the proceedings (Fuentes v.
When to file Sandiganbayan, G.R. No. 164664, 20 July 2006);
3. Stay the execution of judgment, unless a TRO or
The petition shall be filed not later than 60 days writ of preliminary injunction has been issued.
from notice of the judgment, order or resolution. In
case a motion for reconsideration or new trial is Acquisition of Jurisdiction over the Person of the
timely filed, whether such motion is required or not, Respondent in original actions for Certiorari,
the petition shall be filed not later than 60 days Prohibition and Mandamus
counted from the notice of the denial of the motion.
(Sec. 4, Rule 65, as amended by A.M. No. 07-7-12-SC) 1. If the action is filed with the RTC – Follow the
rules on ordinary civil actions. Jurisdiction is
As a rule, a petition for certiorari must be filed acquired by the service of summons to the
strictly within 60 days from notice of judgment or respondent or by his voluntary appearance in
from order denying a motion for reconsideration. court.
This is in accordance with the amendment 2. If the action is filed with the CA or the SC – The
introduced by A.M. No. 07-7-12-C where no court acquires jurisdiction over the
provision for the filing of a motion for extension to respondents with the service on them of its
file a petition for certiorari exists, unlike in the orders indicating its initial action on the
original section 4 of Rule 65 which allowed the filing petition or by voluntary submission to such
of such motion but only for compelling reasons and jurisdiction.
in no case exceeding 15 days. (The Namaris
Philippines, Inc. v. Court of Appeals, G.R. No. 191215,
03 Feb. 2014)

2022 GOLDEN NOTES
Remedial Law
Reliefs petitioner is entitled to: the court issued an order granting Peter's
prayer for foreclosure of mortgage and ordering
1. Annulment; James to pay Peter the full amount of the
2. Modification of the judgment, order, or mortgage debt not later than 120 days from date
resolution or proceeding subject of the petition; of receipt of the order. James received the order
3. It may also include such other Incidental reliefs on August 10, 1999. No other proceeding took
as law and justice may require (Sec. 1, Rule 65, place thereafter. On December 20, 1999, James
ROC, as amended); tendered the full amount adjudged by the court
4. The court may also award damages in its to Peter but the latter refused to accept it on the
judgment and the execution of the award for ground that the amount was tendered beyond
damages or costs shall follow the procedure in the 120-day period granted by the court. James
Sec. 1 of Rule 39. (Sec. 9, Rule 65, ROC, as filed a motion in the same court praying that
amended) Peter be directed to receive the amount
tendered by him on the ground that the order
Actions/Omissions of MTC/RTC In Election does not comply with the provisions of Sec. 2,
Cases Rule 68 of the Rules of Court which gives James
120 days from entry of judgment, and not from
In election cases involving an act or an omission of date of receipt of the order. The court denied his
a municipal or a regional trial court, the petition motion on the ground that the order had already
shall be filed exclusively with the Commission on become final and can no longer be amended to
Elections, in aid of its appellate jurisdiction. (Sec.4, conform with Sec. 2, Rule 68. Aggrieved, James
Rule 65, as amended by AM No. 07-7-12-SC, 12 Dec. files a petition for certiorari against the court
2007) and Peter. Will the petition for certiorari
prosper? Explain. (2000 BAR)
Effect of a Petition for Mandamus which is
patently without merit, prosecuted manifestly A: YES. The court erred in issuing the order. The
for delay, or raises questions which are too court should have rendered a judgment which is
unsubstantial to require consideration appealable. Since no appeal was taken, the
judgment became final on August 25, 1999 which is
The Court may dismiss the petition if it finds the the date of the entry of judgment. Hence, James had
same patently without merit or prosecuted up to December 24, 1999 within which to pay the
manifestly for delay, or if the questions raised amount due. The court gravely abused its discretion
therein are too unsubstantial to require amounting to lack or excess of jurisdiction in
consideration. In such event, the court may award in denying James’ motion praying that Peter be
favor of the respondent treble costs solidarily directed to receive the amount tendered.
against the petitioner and counsel, in addition to
subjecting counsel to administrative sanctions
under Rules 139 and 139-B. (City of Davao v. Court E. QUO WARRANTO (RULE 66)
of Appeals, G.R. No. 200538, 13 Aug. 13, 2014)
The Court may impose motu proprio, based on res

Literally means “by what authority.” It is a
ipsa loquitur, other disciplinary sanctions or
proceeding or writ issued by the court to determine
measures on erring lawyers for patently dilatory
the right to use an office, position or franchise and
and unmeritorious petitions for certiorari. (Sec. 8,
to oust the person holding or exercising such office,
Rule 65, as amended by A.M. No. 07-7-12-SC)
position or franchise if his right is unfounded or if a
person performed acts considered as grounds for
Q: James mortgaged his property to Peter. James
forfeiture of said exercise of position, office or
failed to pay his obligation and Peter filed an
franchise.
action for foreclosure of mortgage. After trial,

NOTE: It is commenced by a verified petition Should be filed within

brought in the name of the Republic of the one year after the
Philippines or in the name of the person claiming to cause of such ouster, or Should be filed within
be entitled to a public office or position usurped or the right of the 10 days after
unlawfully held or exercised by another. (Sec. 1, Rule petitioner to hold such proclamation of
66, ROC, as amended) office or position results
arose. (Sec. 11, Rule 66,
DISTINGUISHED FROM QUO WARRANTO UNDER ROC, as amended)
THE OMNIBUS ELECTION CODE Person adjudged Actual or
entitled to the office compensatory
QUO WARRANTO IN may bring a separate damages are
QUO WARRANTO
ELECTORAL action against the recoverable in quo
UNDER RULE 66
PROCEEDINGS respondent to recover warranto proceedings
Issue is legality of the damage. (Sec 11, Rule under the Omnibus
occupancy of the office Issue is eligibility of 66, ROC, as amended) Election Code.
by virtue of a legal the person elected.
appointment. (Riano, (Riano, 2019) NOTE: If the dispute is as to the counting of votes or
2019) on matters connected with the conduct of the
Grounds: usurpation, Grounds: ineligibility election, quo warranto is not the proper remedy but
forfeiture, or illegal or disqualification to an election protest. (Cesar v. Garrido, G.R. No. 30705,
association (Sec. 1, hold the office (Sec. 25 Mar. 1929)
Rule 66, ROC, as 253, Omnibus Election
amended) Code) When Government commences an action
Presupposes that the against Individuals and Corporations
respondent is already
actually holding office Petition must be filed An action for the usurpation of a public office,
and action must be within 10 days from position or franchise may be commenced by a
commenced within 1 the proclamation of verified petition brought in the name of the
year from cause of the candidate. (Riano, Republic of the Philippines against:
ouster or from the time 2019)
the right of petitioner 1. A person who usurps, intrudes into, or
to hold office arose. unlawfully holds or exercises a public office,
Petitioner may be any position or franchise;
Petitioner is a person
voter even if he is not 2. A public officer who does or suffers an act
entitled to office.
entitled to the office. which, by the provision of law, constitutes a
(Riano, 2019)
(Riano, 2019) ground for the forfeiture of his office; and
Filed before the 3. An association which acts as a corporation
Filed before the
COMELEC if filed within the Philippines without being legally
Supreme Court, CA or
against the election incorporated or without lawful authority so to
RTC Manila if filed by
of a Member of act. (de facto corporation) (Sec. 1, Rule 66,
the Solicitor General.
Congress, regional, ROC, as amended)
Otherwise, RTC with
provincial or city
jurisdiction over the
officer; When directed by the President of the Philippines,
territorial area where
Filed before the or when upon complaint or otherwise he or she has
respondent or any of
appropriate RTC or good reason to believe that any case specified in the
the respondents
MTC, if filed against Rules can be established by proof, the Solicitor
resides, CA, or SC. (Sec.
a municipal or general or the public prosecutor must commence
7, Rule 66, ROC, as
barangay official, the action. (Sec. 2, Rule 66, ROC, as amended)
amended)
respectively.

2022 GOLDEN NOTES
Remedial Law
NOTE: Actions of quo warranto against NOTE: By analogy with provisions of Sec. 5, it has
corporations now fall under the jurisdiction of the been held that a public utility may bring a quo
RTC acting as Special Commercial Courts. (Sec. 5.2, warranto action against another public utility which
Securities Regulations Code) Quo warranto will only has usurped the rights of the former granted under
lie against de facto corporations. franchise. (Cui v. Cui, 60 Phil. 57, 31 Aug. 1964;
Regalado, 2010 2017)
When Individual may commence an Action
Classifications of Quo warranto Proceedings
A person claiming to be entitled to a public office or
position usurped or unlawfully held or exercised by 1. Mandatory– brought by the Solicitor General
another may bring an action therefor in his own or Public prosecutor when:
name. (Sec. 5, Rule 66, ROC, as amended) a. Directed by the President; or
b. Upon complaint or when he has reason to
However, not any person may file the petition. The believe that the cases for quo warranto can
person authorized to file the same is the one who be established by proof. (Sec. 2, Rule 66,
claims to be entitled to a public office or position ROC, as amended)
which was usurped or unlawfully held or exercised
by another person. (Sec. 6, Rule 66, ROC, as amended) 2. Discretionary – brought by the Solicitor
General or a public prosecutor at the request
Such person may maintain action without the and upon the relation of another person,
intervention of the Solicitor General and without provided there must be:
need for any leave of court. He must show that he a. Leave of court;
has a clear right to the office allegedly being held by b. At the request and upon the relation of
another. (Cuevas v. Bacal, G.R. No. 139382, 06 Dec. another person; and
2000) c. Indemnity bond. (Sec. 3, Rule 66, ROC, as
amended)
NOTE: The Solicitor General or public prosecutor
may commence the action at the instance of another Court which has Jurisdiction
person. In this case, leave of court is necessary. (Sec.
3, Rule 66, ROC, as amended) 1. It can be brought only in the SC, CA, or in RTC
exercising jurisdiction over the territorial area
Who may commence (S-P-I) where the respondent or any of the
respondents resides;
1. Solicitor General;
2. Public Prosecutor; or NOTE: The petition may be brought in the SB
3. Individuals claiming to be entitled to the office in certain cases but when in aid of its appellate
or position usurped or unlawfully held or jurisdiction. (PD 1606, Sec. 4, as amended by R.A
exercised by another. (Sec. 5, Rule 66, ROC, as No. 8249; Riano, 2019)
amended)
2. An action for Quo Warranto may be dismissed
NOTE: In order for a petition for quo warranto to be at any stage when it becomes apparent that the
successful, the suing private individual must show a plaintiff is not entitled to the disputed pubic
clear right to the contested office. His failure to office, position or franchise. Hence, the RTC is
establish this right warrants the dismissal of the suit not compelled to still proceed with the trial
for lack of cause of action; it is not even necessary to when it is already apparent on the face of the
pass upon the right of the defendant who, by virtue Petition for Quo Warranto that it is insufficient.
of his appointment, continues in the undisturbed (Feliciano v. Villasin, G.R. No. 174929, 27 June
possession of his office. (General v. Urro, G.R. No. 2008)
191560, 29 Mar. 2011)

3. When the Solicitor General commences the petitioner or relator, as the case may be, recover his
action, it may be brought in a RTC in the City of costs. Such further judgment may be rendered
Manila, in the CA, or in the SC. (Sec. 7, Rule 66, determining the respective rights in and to the
ROC, as amended) public office, position or franchise of the parties to
the action as justice requires. (Sec. 9, Rule 66, ROC,
Q: A group of businessmen formed an as amended)
association in Cebu City calling itself Cars C. to
distribute /sell cars in said city. It did not The court may render judgment for costs against
incorporate itself under the law nor did it have either the petitioner, relator, respondent, relator, or
any government permit or license to conduct its respondent, or the person or persons claiming to be
business as such. The Solicitor General filed a corporation. The corporation may also apportion
before a RTC in Manila a verified petition for quo the costs, as justice requires. (Sec. 12, Rule 66, ROC,
warranto questioning and seeking to stop the as amended)
operations of Cars Co. The latter filed a motion
to dismiss the petition on the ground of RIGHTS OF A PERSON ADJUDGED
improper venue by claiming that its main office ENTITLED TO PUBLIC OFFICE
and operations are in Cebu City and not in
Manila. Is the contention of Cars Co., correct? If judgment be rendered in favor of the person
Why? (2001 BAR) averred in the complaint to be entitled to the public
office, he may, after taking the oath of office and
A: NO. As expressly provided in the Rules, when the executing any official bond required by law:
Solicitor General commences the action for quo
warranto, it may be brought in a RTC in the City of 1. Take upon himself the execution of the office;
Manila, as in this case, in the Court of Appeals or in 2. Immediately thereafter demand all the books
the Supreme Court. (Sec. 7, Rule 66, ROC, as and papers in the respondent’s custody or
amended) control appertaining to the office to which the
judgment relates; and
Contents of a Petition for Quo warranto 3. Bring an action against the respondent to
recover damages sustained by such persons by
1. The petition shall set forth the following: reason of usurpation. (Sec. 10, Rule 66, ROC, as
2. The name of the person who claim to be entitled amended)
thereto;
3. If any, with an averment of his right to the same NOTE: A quo warranto proceeding is one of the
and that the respondent is unlawfully in instances where exhaustion of administrative
possession thereof; and remedies is not required. (Celestial v. Cachopero, G.R.
4. All persons who claim to be entitled to the No. 142595, 15 Oct. 2003)
public office, position or franchise may be made
parties, and their respective rights to such LIMITATIONS
public office, position or franchise determined,
in the same action. (Sec. 6, Rule 66, ROC, as Period within which a Person ousted from Office
amended) must file a Petition for Quo Warranto
JUDGMENT IN QUO WARRANTO ACTION GR: An action for quo warranto must be commenced
within 1 year after the cause of such ouster, or the
When the respondent is found guilty of usurping, right of the petitioner to hold such office or position,
intruding into, or unlawfully holding or exercising a arose. (Sec. 11, Rule 66, ROC, as amended) The failure
public office, position or franchise, judgment shall to institute the same within the reglementary
be rendered that such respondent be ousted and period constitutes more than a sufficient basis for
altogether excluded therefrom, and that the its dismissal (Alejo v. Marquez, G.R. No. L-40575,

2022 GOLDEN NOTES
Remedial Law
September 28, 1987), since it is not proper that the

title to a public office be subjected to continued F. EXPROPRIATION
uncertainty. (Villegas v. De la Cruz, G.R. No. L-23752,
31 Dec. 1965)
Power of Eminent Domain

XPN:
1. If the failure to file the action can be attributed
It is the right of the State to acquire private property
to the acts of a responsible government officer
for public use upon the payment of just
and not of the dismissed employee. (Conchita
compensation.
Romualdez-Yap v. CSC, et al., G.R. No. 104226,
August 12, 1993)
NOTE: The scope of the power of eminent domain
2. When the action is filed by the Republic.
as exercised by the Congress is plenary and is as
(Republic v. Sereno, G.R. No. 237428, 11 May
broad as the police power. Such power however,
2018)
may also be delegated to local political subdivisions
and public utilities. (Riano, 2019)
NOTE: The periods within which quo warranto
action should be brought are a condition precedent
Expropriation
to the existence of a cause of action.
It is the procedure for enforcing the right of eminent

The pendency of administrative remedies does not
domain.
operate to suspend the period of one year within
which a petition for quo warranto should be filed.
NOTE: Expropriation is proper only when:
While it may be desirable that administrative
remedies be first resorted to, no one is compelled or
1. The owner refuses to sell; or
bound to do so, and as said remedies neither are
2. If the latter agrees, agreement as to the price
pre-requisite to nor bar the institution of quo
cannot be reached.
warranto proceedings, they should not be allowed
to suspend the period of one year. Public interest
NOTE: It is the actual filing of complaint for
requires that the right to a public office should be
expropriation which binds the land, and not a mere
determined as speedily as practicable. (Torres v.
notice of the intent to expropriate. However, the
Quintos, G.R. No. L-3304, 05 Apr. 1951)
owner of the land may still dispose of said property,
despite the filing of the action, as the grantee would
The court may reduce the period provided by these
merely be substituted in his place and holds the land
Rules for filing pleadings and for all other
subject to the results of the action. (Regalado, 2017)
proceedings in the action in order to secure the
most expeditious determination of the matters
By reason of expediency, counterclaim, cross-claim
involved therein consistent with the rights of the
or third-party complaint shall be alleged or allowed
parties. Such action may be given precedence over
in the answer or any subsequent pleading.
any other civil matter pending in the court. (Sec. 8,
Requisites of the Exercise of a Valid
Expropriation (D-C-P)
Recovery of Damages against the Usurper of
Office Allowed
1. Due process of law;
2. Payment of just compensation; and
If the petitioner is adjudged to be entitled to the
3. Taking must be for public use.
office, he may sue for damages against the alleged
usurper within 1 year from entry of judgment
establishing his right to the office in question. (Sec.

Properties that are subject to Expropriation accuracy or certainty specify who are the real
owners, averment to that effect shall be made in
All properties can be expropriated, except money the complaint. (Sec. 1, Rule 67, ROC, as amended)
and choses in action.
Rule 67 outlines the procedure under which
NOTE: Choses in action– A right to personal things eminent domain may be exercised by the
of which the owner has not the possession, but Government. Yet by no means does it serve at
merely a right of action for their possession. (Black’s present as the solitary guideline through which the
Law Dictionary, 2004) State may expropriate private property. For
example, Section 19 of the Local Government Code
Scope of Expropriation (RA No. 7610) governs as to the exercise by local
government units of the power of eminent domain
Expropriation is not limited to the acquisition of through an enabling ordinance. There is RA No.
real property with a corresponding transfer of title 8974, which covers expropriation proceedings
or possession. The right-of-way easement resulting intended for national government infrastructure
in a restriction or limitation on property rights over projects. (Republic of the Philippines v. Gingoyon, G.R.
the land traversed by transmission lines also falls No. 166429, 19 Dec. 2005)
within the ambit of the term "expropriation.”
(National Power Corporation v. Vda. De Capin, G.R. TWO STAGES IN EVERY ACTION FOR
No. 175176, 17 Oct. 2008) EXPROPRIATION
Court that has Jurisdiction 1. First stage – the determination of the authority
of the plaintiff to expropriate. This
It is filed with RTC because it is an action incapable determination includes an inquiry into the
of pecuniary estimation regardless of the value of propriety of the expropriation – its necessity
the subject property. and the public purpose.
1. RULE 67 NOTE: The first stage will end in the issuance of

an order of expropriation if the court finds for
MATTERS TO ALLEGE IN plaintiff or in dismissal of the complaint if it
COMPLAINT FOR EXPROPRIATION finds otherwise.
The right of eminent domain shall be exercised by 2. Second stage – the determination of just
the filing of a verified complaint, which shall: compensation through the court-appointed
commissioners. (Riano, 2016 2019)
1. State with certainty the right and purpose of
expropriation; GR: Just Compensation must be reckoned from
2. Describe the real or personal property sought the time of taking or filing of the complaint,
to be expropriated; whichever came first.
3. Join as defendants all persons owning or
claiming to own, or occupying, any part thereof XPN: As a measure of simple justice and
or interest therein, showing, so far as ordinary fairness to them, therefore, reckoning
practicable, the separate interest of each just compensation on the value at the time the
defendant; and owners commenced these inverse
4. If the title to any property sought to be condemnation proceedings when:
expropriated appears to be in the Republic of
the Philippines, although occupied by private 1. Stealth is employed instead of complying
individuals, or if the title is otherwise obscure with the legal process of
or doubtful so that the plaintiff cannot with expropriation. (National Power

2022 GOLDEN NOTES
Remedial Law
Corporation v. Heirs of Macabangkit longer subject to review. (City of Iloilo v. Hon. Lolita
Sangkay, G.R. No. 165828, 24 Aug. 2011) Contreras-Besana, G.R. No. 168967, 12 Feb. 2010)
2. There is no intention to pay the owners just
compensation. (National Power Q: May Congress enact a law providing that a
Corporation v. Spouses Saludares, G.R. No. 5,000 square meter lot, a part of the UST
189127, 25 Apr. 2012) compound in Sampaloc Manila, be expropriated
for the construction of a park in honor of former
Q: The City of Iloilo (petitioner) represented by City Mayor Arsenio Lacson? As compensation to
Mayor Treñas filed a complaint for eminent UST, the City of Manila shall deliver its 5-hectare
domain against Javellana seeking to expropriate lot in Sta. Rosa, Laguna originally intended as a
two parcels of land. Mayor Treñas filed a motion residential subdivision for the Manila City Hall
for issuance of writ of possession alleging that it employees. Explain. (2006 BAR)
had deposited 10% of the amount of
compensation. A writ of possession was A: YES, Congress may enact a law expropriating
subsequently issued, and petitioner was able to property provided that it is for public use and with
take physical possession of the properties. just compensation. In this case, the construction of
Sixteen (16) years later, Javellana filed an ex a park is for public use (See: Sena v. Manila Railroad
parte motion/manifestation, where he alleged Co, G.R. No. 15915, 07 Sept. 1921; Reyes v. NHA, G.R.
that when he sought to withdraw the money, he No. 147511, 24 Mar. 2003).
discovered that no deposit was made.
Thereafter, Javellana filed a complaint for The planned compensation, however, is not legally
recovery of possession, fixing and recovery of tenable as the determination of just compensation
rental and damages. The City of Iloilo argues is a judicial function. No statute, decree or executive
that Javellana could no longer bring an action order can mandate that the determination of just
for recovery since the subject property was compensation by the executive or legislative
already taken for public use. Javallena further departments can prevail over the court’s findings
filed a motion that before a commission is (Export Processing Zone Authority v. Dulay, G.R. No.
created, the trial court should first order the L-59603, 29 Apr. 1987; Secs. 5 to 8, Rule 67, ROC, as
condemnation of the property, in the amended).
accordance with the rules of court. The RTC
denied this motion. The RTC further issued In addition, compensation must be paid in money.
three orders overturning its previous order for (Esteban v. Onorio, AM No. 00-4-166-RTC, 29 June
the issuance of a writ of possession. The 2001)
petitioner argued that the trial court cannot
overturn its previous order issuing the writ of ENTRY OF PLAINTIFF UPON DEPOSITING
possession because it was already final. Is the VALUE WITH AUTHORIZED GOVERNMENT
order of expropriation final? DEPOSITARY
A: YES. An order of condemnation or dismissal is Requisites in order that plaintiff may be

final, resolving the question of whether or not the authorized to immediately enter into property
plaintiff has properly and legally exercised its under Rule 67
power of eminent domain. Once the first order
becomes final and no appeal thereto is taken, the Upon the:
authority to expropriate and its public use can no 1. Filing of complaint, serving notice to defendant
longer be questioned. Here, Javellana did not appeal and after depositing the assessed value of
from the RTC’s order issuing the writ of possession. property for taxation purposes with the
Thus, it has become final, and the petitioner’s right authorized government depositary; (Sec. 2, Rule
to expropriate the property for a public use is no 67, ROC, as amended) and

2. Tender, or payment with legal interest from the property in which he claims to have an
taking of possession of the property, of interest, state the nature and extent of the
compensation fixed by the judgment and interest claimed;
payment of costs by plaintiff. (Sec. 10, Rule 67, b. Thereafter, he shall be entitled to notice of
ROC, as amended) all proceedings affecting the same;
NOTE: Such deposit shall be in money, unless in lieu 2. If there are no objections, he must file and serve
thereof the court authorizes the deposit of a a notice of appearance and manifestation to
certificate of deposit of a government bank of the that effect. And thereafter, shall be entitled to
Republic of the Philippines payable on demand to notice of all proceedings. (Sec. 3, Rule 67, ROC, as
the authorized government depositary. amended)
If personal property is involved, its value shall be Effect of failure to file an Answer
provisionally ascertained and the amount to be
deposited shall be promptly fixed by the court. (Sec. The failure to file an answer does not produce all the
2, Rule 67, ROC) disastrous consequences of default in ordinary civil
actions, because the defendant may still present
Once the preliminary deposit has been made, the evidence as to just compensation. (Robern
expropriator is entitled to a writ of possession as a Development Corporation v. Quitain, G.R. No. 135042,
matter of right, and the issuance of said writ 23 Sept. 1999)
becomes ministerial on the part of the trial court.
(Biglang-Awa v. Bacalla, G.R. Nos. 139927-36, 20 Nov. Remedy of Defendant if answer omits some
2000) The defenses by the owner against immediate defenses
possession can be considered during trial on the
merits. (NAPOCOR v. Jocson, G.R. Nos. 94193-99, 25 If the answer omits some defenses, the remedy, in
Feb. 1992) order to prevent a waiver of those defenses not
alleged, is to seek leave to amend the answer within
Purposes of Preliminary Deposit 10 days from the filing thereof. (Sec. 3, Rule 67, ROC,
as amended)
1. It serves as an advanced payment to the owner
of the property should the court decide in favor Duty of the Court if the Defendant waives his
of the plaintiff; and defenses or objections
2. It shall serve as indemnity against any damage If a defendant waives all defenses and objections not
which the owner may have sustained. (Visayan so alleged, the court, in the interest of justice, may
Refining Company v. Camus, G.R. No. 15870, 03 permit amendments to the answer to be made not
Dec. 1919) later than 10 days from the filing thereof.
NOTE: The preliminary deposit is only necessary if However, at the trial of the issue of just
the plaintiff desires entry on the land upon its compensation, whether a defendant has previously
institution of the action. (Regalado, 2017) appeared or answered, he may present evidence as
to the amount of the compensation to be paid for his
DEFENSES AND OBJECTIONS property, and he may share in the distribution of the
award. (Sec. 3, Rule 67, ROC, as amended)
1. If a defendant has any objection or defense to
the taking of his property: Declaration of Default
a. He shall serve his answer. The answer shall The defendant cannot be declared in default.
specifically designate or identify the However, failure to file an answer would not bar the

2022 GOLDEN NOTES
Remedial Law
court from rendering judgment on the right to ASCERTAINMENT OF JUST COMPENSATION

expropriate, without prejudice to the defendant’s
right to present evidence on just compensation and Appointment of Commissioner
to share in the distribution of the award. (Sec. 3, Rule
67, ROC, as amended) Upon the rendition of the order of expropriation, the
court shall appoint not more than 3 competent and
Effect of non-payment of Just Compensation disinterested persons as commissioners to
ascertain and report to the court the just
The non-payment of just compensation does not compensation for the property sought to be taken.
entitle the private landowner to recover possession The order of appointment shall designate the time
of the expropriated lots, however, in cases where and place of the first session of the hearing to be
the government failed to pay just held by the commissioners and specify the time
compensation within 5 years from the finality of the within which their report shall be submitted to the
judgment in the expropriation proceedings, the court. (Sec. 5, Rule 67, ROC, as amended)
owners concerned shall have the right to recover
possession of their property. This is in consonance NOTE: Objections to the order of appointment must
with the principle that "the government cannot be filed within 10 days from service of the order and
keep the property and dishonor the judgment. shall be resolved within 30 days after all the
(Republic of the Philippines v. Lim, G.R. No. 161656, commissioners received the copies of the
29 June 2005) objections. (Sec. 5, Rule 67, ROC, as amended)
Q: Ropa Development, Robinson Yao, and Jovito
ORDER OF EXPROPRIATION Yao were owners of two parcels of a land. The
Republic filed a Complaint with the Regional
An order of expropriation (or order of Trial Court of Bacolod City, seeking to
condemnation) will be issued declaring that the expropriate a total of 32 square meters from the
plaintiff has a lawful right to take the property. properties. The land was to be used for the
construction of two transmission towers for the
It is issued when: Northern Negros Geothermal Project. It prayed
for the immediate issuance of a writ of
1. The objections to and the defenses against the possession. However, Ropa Development,
right of the plaintiff to expropriate the property Robinson, and Jovito opposed this. They
are overruled; and admitted to most of the allegations in the
2. No party appears to defend as required by this Complaint, but alleged that it "failed to show
Rule. (Sec. 4, Rule 67, ROC, as amended) that a number of fruit bearing trees were
planted on the property." Thus, considering the
NOTE: After the rendition of such an order, the nature and effects of the construction of
plaintiff shall not be permitted to dismiss or transmission towers, they claim that they
discontinue the proceeding except on such terms as should be paid not only for the portion actually
the court deems just and equitable. expropriated, but for the entire property as
well. Moreover, they said that the towers' power
After the rendition of the order of expropriation, the lines will "substantially limit their use of the
plaintiff shall not be permitted to dismiss or land." The Regional Trial Court issued a writ of
discontinue the proceeding except upon such terms possession in favor of the Republic. The CA
as the court deems just and equitable. (Sec. 4, Rule rendered a Decision on the Petition for
67, ROC, as amended) Certiorari, enjoining the enforcement and
implementation of the writ of possession. The
Supreme Court affirmed the ruling. The
Republic lodged an appeal, claiming that no
commissioners were appointed during the trial

in violation of the Rules of Court. Is the just compensation, a hearing before the
Republic’s appeal meritorious? commissioners is indispensable to allow the parties
to present evidence on the issue of just
A: YES. Gingoyon's statement-that the appointment compensation.
of commissioners may be resorted to, should not be
interpreted to mean that it was merely optional. While it is true that the findings of commissioners
Such statement meant that the requirement by the may be disregarded and the trial court may
Rules of appointing commissioners did not substitute its own estimate of the value, the latter
contradict Republic Act No. 8974 and was may only do so for valid reasons, that is, where the
permissible. There was no conflict in this regard, in commissioners have applied illegal principles to the
contrast with the patently different systems of evidence submitted to them, where they have
deposit and direct payment. disregarded a clear preponderance of evidence, or
where the amount allowed is either grossly
The Rules provide that the parties are given the inadequate or excessive. (National Power
opportunity to introduce evidence before Corporation v. De la Cruz, G.R. No. 156093, 02 Feb.
commissioners, and that the commissioners are 2007)
empowered to "assess the consequential damages
to the property not taken." Just Compensation
Indeed, Section 5(1) of Rule 67 requires the Just compensation is defined as the full and fair
appointment of commissioners in the equivalent of the property sought to be
ascertainment of just compensation: expropriated. The measure is not the taker’s gain
but the owner’s loss. The compensation, to be just,
“SECTION 5. Ascertainment of compensation. - must be fair not only to the owner but also to the
Upon the rendition of the order of taker. Even as undervaluation would deprive the
expropriation, the court shall appoint not more owner of his property without due process, so too
than three (3) competent and disinterested would its overvaluation unduly favor him to the
persons as commissioners to ascertain and prejudice of the public. (National Power Corporation
report to the court the just compensation for v. De la Cruz, G.R. No. 156093, 02 Feb. 2007)
the property sought to be taken. The order of
appointment shall designate the time and place Just compensation means not only the correct
of the first session of the hearing to be held by determination of the amount to be paid but also the
the commissioners and specify the time within payment of the land within a reasonable time from
which their report shall be submitted to the its taking (Landbank v. Obias, G.R. No. 184406, 14
court.” Mar. 2012).
The need to conduct proceedings before appointed How court determines Just Compensation
commissioners becomes more apparent, given the
necessity to compute for consequential damages. The trial court should first ascertain the market
(Republic v. Ropa Development Corp., G.R. No. value of the property, to which should be added the
227614, 11 Jan. 2021) consequential damages after deducting therefrom
the consequential benefits which may arise from the
Mandatory requirement of appointing expropriation. If the consequential benefits exceed
Commissioner the consequential damages, these items should be
disregarded altogether as the basic value of the
Appointment of commissioners to ascertain just property should be paid in every case. (Republic v.
compensation for the property sought to be taken is CA, G.R. No. 160379, 14 Aug. 2009)
a mandatory requirement in expropriation cases.
Where the principal issue is the determination of The market value of the property is the price that

2022 GOLDEN NOTES
Remedial Law
may be agreed upon by parties willing but not property for an amount based on its Zonal Value
compelled to enter into the contract of sale. Not i.e., P2,100.00 per square meter or P457,800.00.
unlikely, a buyer desperate to acquire a piece of The offer was rejected by the respondents.
property would agree to pay more, and a seller in Hence, the Republic filed an action for
urgent need of funds would agree to accept less, expropriation. The RTC found that "based on the
than what it is actually worth. (Republic v. Heirs of evidence on records, specifically the current
Sps. Bautista and Malabanan, G.R. No. 181218, 28 Jan. zonal valuation issued by the BIR, it is clearly
2013) established that the amount of P 2,100.00 per
square meter or the total amount of P
NOTE: Among the factors to be considered in 457,800.00 is a just compensation for the
arriving at the fair market value of the property are: subject property with an area of 218 square
meters. The Republic filed a Motion for Partial
1. The cost of acquisition; Reconsideration arguing that the RTC
2. The current value of like properties; committed an error in imposing consequential
3. Its actual or potential uses; and damages. Is the Republic required to pay
4. In the particular case of lands, their size, shape, consequential damages?
location, and the tax declarations thereon.
(National Power Corporation v. De la Cruz, G.R. A: NO. The sheer fact that there is a remaining
No. 156093, 02 Feb. 2007) portion of real property after the expropriation is
not enough, by and of itself, to be basis for the award
Formula for the determination of Just of consequential damages. To be sure, it must still be
Compensation proven by sufficient evidence that the remaining
portion suffers from an impairment or decrease in
JC = FMV + CD – CB value. As borne out by a perusal of the subject TCT,
If CB is more than CD, then total area of the subject property is 380 sq. m. As
JC = FMV readily admitted by the Republic, however, the
affected area of the expropriation undertaken was
JC – Just compensation only "218 sq. m." out of the total area of 380 sq. m.
FMV – Fair market value
CD – Consequential damages A careful review of the records of the instant case
CB – Consequential benefits reveals that the RTC's award of consequential
damages is not supported by any evidence
NOTE: Sentimental value is NOT included establishing that the remaining 162 sq. m. of the
subject property suffered from any impairment or
Consequential Benefit decrease in value. Therefore, the award of
consequential damages must be deleted. (Republic
It refers to actual benefits derived by the owner on of the Philippines v. Juliana San Miguel Vda. De
the remaining portion of his land which are the Ramos, Et. Al., G.R. No. 211576, 19 Feb. 2020, J.
direct and proximate results of the improvements Caguioa)
consequent to the expropriation, and not the
general benefits which he receives in common with Reckoning point for determining Just
community. (Regalado, 2017) Compensation
Q: The Republic sought to acquire the The value of just compensation shall be determined
respondents’ private property in relation to the as of the date of the taking of the property or the
construction of the North Luzon Expressway filing of the complaint, whichever came first. (Sec. 4,
(NLEX) - Harbor Link Project (Segment 9) from Rule 67, ROC, as amended)
NLEX to MacArthur Highway, Valenzuela City.
The Republic offered to purchase the subject

GR: When the taking of the property sought to be Republic, through PEA, upon the filing of its
expropriated coincides with the commencement of complaint for expropriation, to pay Tan just
the expropriation proceedings, or takes place compensation on the basis of the BIR zonal
subsequent to the filing of the complaint for valuation of the subject property. (Tan v.
eminent domain, the just compensation should be Republic, G.R. No. 170740, 25 May 2007)
determined as of the date of the filing of the
complaint. (City of Iloilo v. Hon. Lolita Contreras- 4. The owner will be given undue increment
Besana, G.R. No. 168967, 12 Feb. 2010) advantages because of the expropriation -
The value of the property in question was
XPNs: greatly enhanced between the time when the
extension of the street was laid out and the date
1. Grave injustice to the property owner - Air when the condemnation proceedings were
Transportation Office cannot conveniently filed. The owners of the land have no right to
invoke the right of eminent domain to take recover damages for this unearned increment
advantage of the ridiculously low value of the resulting from the construction of the public
property at the time of taking that it arbitrarily improvement for which the land was taken. To
chooses to the prejudice of the land owners, permit them to do so would be to allow them to
(Heirs of Mateo Pidacan & Romana Eigo v. Air recover more than the value of the land at the
Transportation Office, G.R. No. 162779, 15 June time when it was taken, which is the true
2007) measure of the damages, or just compensation,
and would discourage the construction of
2. The taking did not have color of legal important public improvements. (Provincial
authority - To allow NAPOCOR to use the date Gov’t. of Rizal v. Caro de Araullo, G.R. No. L-
it constructed the tunnels as the date of 36096, 16 Aug. 1933)
valuation would be grossly unfair. First, it did
not enter the land under warrant or color of NOTE: Under Sec. 19 of the Local Government Code
legal authority or with intent to expropriate the the amount to be paid for the expropriation of the
same. It did not bother to notify the owners and expropriated property shall be determined based
wrongly assumed it had the right to dig those on the fair market value at the time of the taking of
tunnels under their property. Secondly, the the property. (Riano, 2019)
“improvements” introduced by NAPOCOR, the
tunnels, in no way contributed to an increase in Effect of Non-Payment of Just Compensation
the value of the land. The trial court rightly
computed the valuation of the property as of Non-payment of just compensation does not entitle
1992, when the owners discovered the the private landowner to recover possession of the
construction of the huge underground tunnels expropriated lots. However, in case where the
beneath their lands and NAPOCOR confirmed government failed to pay just compensation within
the same and started negotiations for their 5 years from the finality of judgment in the
purchase but no agreement could be reached. expropriation proceedings, the owners concerned
(NAPOCOR v. Ibrahim, G.R. No. 168732, 29 June shall have the right to recover possession of their
2007) property. (Republic v. Lim, G.R. No. 161656, 29 June
2005)
3. The taking of the property was not initially
for expropriation - There was no taking of the NOTE: If the compensation is not paid when the
property in 1985 by Public Estates Authority property is taken, but is postponed to a later date,
(PEA) for purposes of expropriation. As shown the interest awarded is actually part of just
by the records, PEA filed with the RTC its compensation, which takes into account such delay.
petition for expropriation on September 22, (Benguet Consolidated v. Republic, G.R. No. 712412,
2003. The trial court was correct in ordering the 15 Aug. 1986)

2022 GOLDEN NOTES
Remedial Law
PROCEEDINGS BY COMMISSIONER Upon the filing of such report, the clerk of the court
shall serve copies thereof on all interested parties,
Taking of Oath with notice that they are allowed 10 days within
which to file objections to the findings of the report,
Before entering upon the performance of their if they so desire. (Sec. 7, Rule 67, ROC, as amended;
duties, the commissioners shall take and subscribe Riano, 2019)
an oath that they will faithfully perform their duties
as commissioners, which oath shall be filed in court The court may order the commissioners to report
with the other proceedings in the case. (Sec. 6, Rule when any particular portion of the real estate shall
67, ROC, as amended) have been passed upon by them, and may render
judgment upon such partial report, and direct the
Introduction of Evidence commissioners to proceed with their work as to
subsequent portions of the property sought to be
Evidence may be introduced by either party before expropriated, and may from time to time so deal
the commissioners who are authorized to with such property. The commissioners shall make
administer oaths on hearings before them. (Sec. 6, a full and accurate report to the court of all their
Rule 67, ROC, as amended) proceedings, and such proceedings shall not be
effectual until the court shall have accepted their
Duties of Commissioners report and rendered judgment in accordance with
their recommendations. (Sec. 7, Rule 67, ROC, as
The commissioners, unless the parties consent to amended)
the contrary, after due notice to the parties, shall:
Action upon Commissioner’s Report
1. Attend, view and examine the property sought
to be expropriated and its surroundings; Upon the expiration of the period of ten (10) days
2. Measure the same, after which either party referred to in the preceding section, or even before
may, by himself or counsel, argue the case; the expiration of such period but after all the
3. Assess the consequential damages to the interested parties have filed their objections to the
property not taken; and report or their statement of agreement therewith,
4. Deduct from such consequential damages the the court may, after hearing:
consequential benefits to be derived by the
owner from the public use or purpose of the 1. Accept the report and render judgment in
property taken, the operation of its franchise by accordance therewith; or
the corporation or the carrying on of the 2. For cause shown, it may recommit the same to
business of the corporation or person taking the the commissioners for further report of facts;
property. or
3. Set aside the report and appoint new
NOTE: But in no case shall the consequential commissioners, or
benefits assessed exceed the consequential 4. Accept the report in part and reject it in part;
damages assessed, or the owner be deprived of the and
actual value of his property so taken. (Sec. 6, Rule 67, 5. It may make such order or render such
ROC, as amended) judgment as shall secure to the plaintiff of the
property essential to the exercise of his right of
Commissioner’s Report expropriation, and to the defendant just
compensation for the property so taken. (Sec.8,
As a rule, the commissioners shall make their report Rule 67, ROC, as amended)
within 60 days from the date they were notified of
their appointment. This period may be extended in
the discretion of the court.

Uncertain Ownership ENTRY NOT DELAYED BY APPEAL; EFFECT OF

REVERSAL
The trial court may decide conflicting claims of
ownership in the same case. There is no need for an Effect of Reversal
independent action since the person entitled
thereto will be adjudged in the same proceeding. If on appeal the appellate court determines that the
However, the court may order any sum(s) awarded plaintiff has no right of expropriation, judgment
as compensation for the property to be paid to the shall be rendered ordering the Regional Trial Court
court for the benefit of the person that will be to enforce the restoration to the defendant of the
adjudged as entitled thereto. (Sec. 9, Rule 67, ROC, as possession of the property, and to determine the
amended) damages which the defendant sustained and may
recover by reason of the possession taken by the
RIGHTS OF PLAINTIFF AFTER plaintiff. (Sec. 11, Rule 67, ROC, as amended)
JUDGMENT AND PAYMENT
Appeal
After payment of just compensation, as determined
in the judgment, the plaintiff shall have the right to: The order of expropriation may be appealed by the
defendant by record on appeal. This is an instance
1. Enter upon the property expropriated and to when multiple appeals are allowed because they
appropriate the same for the public use or have separate and/or several judgments on
purpose defined in the judgment; or different issues, e.g., issue on the right to
2. To retain possession already previously made expropriate or issue of just compensation.
in accordance with Sec. 2 (Entry of plaintiff
upon depositing value with authorized An appeal does not delay the right of the plaintiff to
government depositary). (Sec. 10, Rule 67, ROC, enter upon the property of the defendant and
as amended) appropriate the same for public use. (Sec. 11, Rule
67, ROC, as amended) An appeal from judgment shall
When Defendant declines to receive the amount not prevent the court from determining the just
tendered compensation to be paid. (Sec. 4, Rule 67, ROC, as
amended)
If the defendant and his counsel absent themselves
from the court, or decline to receive the amount Multiple Appeals
tendered, the same shall be ordered to be deposited
in court and such deposit shall have the same effect Vertfted
Determination or just
APPEAL compensation APPEAL
as actual payment thereof to the defendant or the complaint
person ultimately adjudged entitled thereto. (Sec. Orderofjust

Order or
10, Rule 67, ROC, as amended) Determinadon of
public use
expropriation compensation
NOTE: The payment shall involve the amount fixed Appeal must be made 30 days from the receipt of the
in the judgment and shall include legal interest from order as the proceedings in expropriation involve
the taking of possession of the property. (Sec. 10, multiple appeals.
COSTS, BY WHOM PAID
GR: All costs shall be paid by the plaintiff.
XPNs:
1. Those of rival claimants litigating their claims;
or

2022 GOLDEN NOTES
Remedial Law
2. An appeal taken by the owner of the property were of age or competent. (Sec. 14, Rule 67, ROC, as
and if the judgment is affirmed, in which event amended)
the costs of the appeal shall be paid by the
owner. WHEN PLAINTIFF CAN IMMEDIATELY ENTER
INTO POSSESSION OF THE REAL PROPERTY,
NOTE: Fees of commissioners shall be taxed as part IN RELATION TO R.A. 10752
of the costs of proceedings (THE RIGHT-OF-WAY ACT)
RECORDING JUDGMENT AND ITS EFFECT Under R.A. 10752, whenever it is necessary to
acquire real property for the right-of-way or
The judgment shall state: location for any national government infrastructure
project through expropriation, the appropriate
1. An adequate description of the particular implementing agency, through the Office of the
property or interest therein expropriated; and Solicitor General, the Office of the Government
2. Nature of the public use or purpose for which Corporate Counsel, or their deputize government or
it is expropriated. private legal counsel, shall initiate the expropriation
proceedings before the proper court under the
NOTE: When real estate is expropriated, a certified following guidelines:
copy of such judgment shall be recorded in the
registry of deeds of the place in which the property 1. Upon the filing of the complaint, and after due
is situated, and its effect shall be to vest in the notice to the defendant, the implementing
plaintiff the title to the real estate so described for agency shall immediately pay the owner of the
such public use or purpose. (Sec. 13, Rule 67, ROC, as property the amount equivalent to the sum of
amended) 100% of the value of the property based on the
current relevant zonal valuation of the BIR
Discretionary Execution; does not apply in issued not more than 3 years prior to the filing
Expropriation of the expropriation complaint, the
replacement cost at current market, and the
The funds cannot be garnished and its properties, value of the improvements and/or structures,
being government properties, cannot be levied via a the current market value of crops and trees
writ of execution pursuant to a final judgment, then located within the property;
the trial court likewise cannot grant discretionary
execution pending appeal, as it would run afoul of 2. In case the owner of the property cannot be
the established jurisprudence that government found, if unknown, or deceased in cases where
properties are exempt from execution. (NPC v. Heirs the estate has not been settled, after exerting
of Rabie, GR No. 210218, 17 Aug. 2016) due diligence, or there are conflicting claims
over the ownership of the property and
POWER OF GUARDIAN IN SUCH PROCEEDINGS improvements and structures thereon, the
implementing agency shall deposit the amount
The guardian or guardian ad litem of a minor or of a equivalent to the sum provided for in the
person judicially declared to be incompetent may, preceding number;
with the approval of the court first had, do and
perform on behalf of his ward any act, matter, or 3. In provinces, cities, municipalities, and other
thing respecting the expropriation for public use or areas where there is no land classification, the
purpose of property belonging to such minor or city or municipal assessor is hereby mandated,
person judicially declared to be incompetent, which within the period of 60 days from the date of
such minor or person judicially declared to be filing of the expropriation case, to come up with
incompetent could do in such proceedings if he the required land classification and the
corresponding declaration of real property and

improvement for the area. In provinces, cities, property for the the amount equivalent
municipalities and other areas where there is purposes of taxation. to the sum of 100% of
no zonal valuation, the BIR is hereby mandated the value of the
within the period of 60 days from the date of the property based on the
expropriation case, to come up with a zonal current relevant zonal
valuation for said area; and valuation of the BIR
issued not more than
4. In case the completion of a government three (3) years prior to
infrastructure project is of utmost urgency and the filing of the
importance, and there is no existing valuation of expropriation
the area concerned, the implementing agency complaint, the
shall immediately pay the owner of the replacement cost at
property its proffered value taking into current market value
consideration the standards prescribed by the of the improvements
law. and/or structures, the
current market value
Upon compliance with the guidelines of crops and trees
abovementioned, the court shall immediately issue located within the
to the implementing agency an order to take property. (Sec. 6, R.A.
possession of the property and start the No. 10752)
implementation of the project. (Sec. 6, R.A. No. Applies to Applies to
10752) expropriation by expropriation by
Government for Government for
In any of the cases abovementioned, upon its receipt purposes other than purposes of national
of the writ of possession issued by the court, the national infrastructure
implementing agency may take possession of the infrastructure. projects.
property and start the implementation of the
project. (Sec. 6, R.A. No. 10752) NOTE: If expropriation is engaged in by the national
government for purposes other than national
NEW SYSTEM OF IMMEDIATE PAYMENT OF infrastructure projects, the assessed value standard
INITIAL JUST COMPENSATION and the deposit mode prescribed in Rule 67
continues to apply. (Riano, 2019)
System of Deposit in Sec. 2, Rule 67 vs. R.A.
10752 (The Right-Of-Way Act) 2. GUIDELINES FOR EXPROPRIATION
PROCEEDINGS IN INFRASTRUCTURE PROJECTS
R.A. 10752 (THE (SEC. 6, R.A. NO. 10752)
SEC. 2, RULE 67
RIGHT-OF-WAY ACT)
The government is The government is Whenever it is necessary to acquire real property
required only to make required to make for the right-of-way site or location for any national
an initial deposit with immediate payment to government infrastructure through expropriation,
an authorized the property owner the appropriate implementing agency, through the
government upon filing of the Office of the Solicitor General, the Office of the
depositary to be complaint to be Government Corporate Counsel, or their deputize
entitled to a writ of entitled to a writ of government or private legal counsel, shall
possession. possession. immediately initiate the expropriation proceedings
The implementing before the proper court under the following
The initial deposit is
agency shall guidelines:
equivalent to the
immediately pay the
assessed value of the
owner of the property

2022 GOLDEN NOTES
Remedial Law
1. Upon the filing of the complaint or at any time of possession ex parte; no hearing shall be
thereafter, and after due notice to the required.
defendant, the implementing agency shall
immediately deposit to the court in favor of the The court shall release the amount to the
owner the amount equivalent to the sum of: owner upon presentation of sufficient
proofs of ownership.
a. One hundred percent (100%) of the value
of the land based on the current relevant 2. In case the owner of the property cannot be
zonal valuation of the Bureau of Internal found, if unknown, or deceased in cases where
Revenue (BIR) issued not more than three the estate has not been settled, after exerting
(3) years prior to the filing of the due diligence, or there are conflicting claims
expropriation complaint subject to over the ownership of the property and
subparagraph (c) of this section; improvements and structures thereon, the
implementing agency shall deposit the amount
b. The replacement cost at current market equivalent to the sum under subparagraphs
value of the improvements and structures (a)(1) to (a)(3) of this section to the court for
as determined by: the benefit of the person to be adjudged in the
(i) The implementing agency; same proceeding as entitled thereto.
(ii) A government financial institution with
adequate experience in property appraisal; Upon compliance with the guidelines
and abovementioned, the court shall immediately
(iii) An independent property appraiser issue to the implementing agency an order to
accredited by the BSP. take possession of the property and start the
implementation of the project.
c. The current market value of crops and trees
located within the property as determined If, within seven (7) working days after the
by a government financial institution or an deposit to the court of the amount equivalent to
independent property appraiser to be the sum under subparagraphs (a)(1) to (a)(3)
selected as indicated in subparagraph (a) of of this section, the court has not issued to the
Section 5 hereof. implementing agency a writ of possession for
the affected property, counsel of the
Upon compliance with the guidelines implementing agency shall immediately seek
abovementioned, the court shall from the court the issuance of the writ of
immediately issue to the implementing possession.
agency an order to take possession of the The court shall release the amount to the
property and start the implementation of person adjudged same expropriation
the project. proceeding as entitled thereto.
If, within seven (7) working days after the 3. In provinces, cities, municipalities, and other
deposit to the court of the amount areas where there is no land classification, the
equivalent to the sum under city or municipal assessor is hereby mandated,
subparagraphs (a)(1) to (a)(3) of this within the period of sixty (60) days from the
section, the court has not issued to the date of filing of the expropriation case, to come
implementing agency a writ of possession up with the required land classification and the
for the affected property, the counsel of the corresponding declaration of real property and
implementing agency shall immediately improvement for the area. In provinces, cities,
seek from the court the issuance of the writ municipalities, and other areas where there is
of possession. The court shall issue the writ no zonal valuation, or where the current zonal
valuation has been in force for more than three

(3) years, the BIR is mandated, within the Factors to consider in facilitating the
period of sixty (60) days from the date of filing Determination of Just Compensation
of the expropriation case, to conduct a zonal
valuation of the area, based on the land 1. The classification and use for which the
classification done by the city or municipal property is suited;
assessor. 2. The developmental costs for improving the
land;
4. With reference to subparagraph (a)( 1) of this 3. The value declared by the owners;
section, in case the completion of a government 4. The current selling price of similar lands in the
infrastructure project is of utmost urgency and vicinity;
importance, and there is no land classification 5. The reasonable disturbance compensation for
or no existing zonal valuation of the area the removal and/or demolition of certain
concerned or the zonal valuation has been in improvement on the land and for the value of
force for more than three (3) years, the improvements thereon;
implementing agency shall use the BIR zonal 6. This size, shape or location, tax declaration and
value and land classification of similar lands zonal valuation of the land;
within the adjacent vicinity as the basis for the 7. The price of the land as manifested in the ocular
valuation. findings, oral as well as documentary evidence
presented; and
5. In any of the cases in subparagraphs (a) to (d) 8. Such facts and events as to enable the affected
of this section, upon its receipt of the writ of property owners to have sufficient funds to
possession issued by the court, the acquire similarly-situated lands of approximate
implementing agency may take possession of areas as those required from them by the
the property and start the implementation of government, and thereby rehabilitate
the project. themselves as early as possible.
6. In the event that the owner of the property Q: Respondent National Grid Corporation of the
contests the implementing agency’s proffered Philippines (NGCP) filed a Complaint for
value, the court shall determine the just Expropriation against PNOC Alternative Fuels
compensation to be paid the owner within sixty Corporation, seeking to expropriate the subject
(60) days from the date of filing of the property, a part of the Petrochemical Industrial
expropriation case. When the decision of the Park which was originally part of a parcel of land
court becomes final and executory, the of the public domain reserved by the
implementing agency shall pay the owner the government. Respondent NGCP invoked its
difference between the amount already paid general authority to exercise the right of
and the just compensation as determined by the eminent domain under Section 4 of R.A. No.
court. 9511. The RTC issued an Order of Expropriation
and ruled that respondent NGCP has a lawful
7. With regard to the taxes and fees relative to the right to expropriate the subject property upon
transfer of title of the property to the Republic payment of just compensation.
of the Philippines through expropriation
proceedings, the implementing agency shall pay Is the RTC correct in issuing the assailed Order
the documentary stamp tax, transfer tax and of Expropriation?
registration fees, while the owner shall pay the
capital gains tax and any unpaid real property A: YES. In Republic v. East Silverlane Realty
tax. Development Corp., the Court held that when the
subject property therein was classified by the
government as an industrial zone, the subject
property therein "had been declared patrimonial

2022 GOLDEN NOTES
Remedial Law
and it is only then that the prescriptive period began established. If demand was made and duly received
to run." by the respondents and the latter still did not pay,
then they were already in default and foreclosure
Upon a simple perusal of Section 4 of R.A. No. 9511, was proper. (Riano, 2019)
it states in no equivocal terms that the Grantee
(referring to respondent NGCP) may acquire such NOTE: In case of default of the debtor, the creditor
private property as is actually necessary for the has two alternatives: (1) to file an action for
realization of the purposes for which this franchise collection of a sum of money; or (2) to foreclose the
is granted." Section 4 of R.A. No. 9511 is clear, plain, mortgage, if one has been constituted. An election of
and free from any ambiguity. Respondent NGCP is the first bars the recourse to the second (Riano,
allowed to exercise the right of eminent domain 2019). The mere act of filing an ordinary action for
only with respect to private property. The subject collection against the principal debtor, the creditor
property, though owned by a State instrumentality, is deemed to have elected a remedy, as a result of
is considered patrimonial property that assumes which a waiver of the other must necessarily arise
the nature of private property. (PNOC Alternative (Bank of America, NT & SA vs. American Realty
Fuels Corporation v. National Grid Corporation of the Corporation, G.R. No. 133876, 29 Dec. 1999).
Philippines, G.R. No. 224936, 04 Sept. 2019 J.
Caguioa) Jurisdiction over Foreclosure of REM
Under B.P. No. 129, as amended, where the action is

G. FORECLOSURE OF REAL ESTATE one “involving title to, or possession of, real
MORTGAGES property or any interest therein,” the determination
of jurisdiction shall be made by inquiring into the
assessed value of the property. From this point of
Real Estate Mortgage (REM) view, exclusive jurisdiction would fall either in the
MTC or the RTC depending on the assessed value of
To be a real estate mortgage, the contract must be the property involved. (Riano, 2019)
constituted on either immovable (real property) or
alienable real rights. If constituted on movables, the KINDS OF FORECLOSURE
contract is a chattel mortgage. (Riano, 2016 2019)
1. Judicial – Governed by Rule 68, Rules of Court;
Nature of action 2. Extrajudicial – The mortgagee is given a SPA to
sell the mortgaged property (Act No. 3135).
An action to foreclose a real estate mortgage ay be
considered as an action involving interest in real Judicial Foreclosure vs. Extrajudicial
property, hence a real action. (Riano, 2016 2019) Foreclosure
Foreclosure of REM JUDICIAL EXTRAJUDICIAL

FORECLOSURE FORECLOSURE
It is the remedy used for the satisfaction of any Involves the filing of an Does not require the
monetary obligation, which a person owes to independent action. filing of an action.
another, by proceeding against the property used to Decisions not
secure said obligation. Decisions are appealable;
appealable. immediately
When Foreclosure is proper executory.
There is only an equity
Foreclosure of real estate mortgage presupposes of redemption and no Right of redemption
that the debtor failed to pay his debt despite right of redemption exists.
demand. The default of the debtor must first be except when the

mortgagee is a banking administrative function

institution. to supervise the
There can be no ministerial duty of the
There could be a
judgment for a Clerk of Court as Ex
deficiency judgment
deficiency because Officio Sheriff in the
rendered by the court
there is no judicial conduct of an
in the same
proceeding although extrajudicial
proceeding. Recovery
recovery of deficiency foreclosure sale. (Ingles
of deficiency is by
is allowed and through v. Estrada, G.R. 141809,
mere motion.
an independent action. 08 Apr. 2013)
SPA in favor of Where to sell
No need for SPA.
mortgagee is essential. Said sale cannot be
Governed by Rule 68. Governed by Act 3135. The place of sale may made legally outside of
be agreed upon by the the province in which
PROCEDURE parties. In the absence the property sold is
of such agreement, situated; and in case the
JUDICIAL EXTRAJUDICIAL the sale of real place within said
FORECLOSURE FORECLOSURE property shall be held province in which the
Where to file in the office of the sale is to be made is
All applications for clerk of court of the subject to stipulation,
extra-judicial RTC or MTC which such sale shall be made
foreclosure of issued the writ or in said place or in the
mortgage, whether which was designated municipal building of
under the direction of by the appellate court. the municipality in
The mortgagee should the Sheriff or a notary (Section 3, Rule 8; which the property or
file a petition for public pursuant to Section 15, Rule 39) part thereof is situated.
judicial foreclosure in Act.No. 3135, as (Sec. 2, Act. 3135)
the court which has amended, shall be filed Posting Requirement
jurisdiction over the with the Executive Notice shall be given by
area where the Judge, through the posting notices of the
Before the sale of real
property is situated. Clerk of Court, who is sale for not less than 20
property on
also the Ex-Officio days in at least three
execution, notice
NOTE: As foreclosure Sheriff. (A.M. No. 99-10- public places of the
thereof must be given
of mortgage is a real 05-0, as amended, municipality or city
by posting a similar
action, it is the March 1, 2001) where the property is
notice describing the
assessed value of the situated.
property and stating
property which NOTE: the orders of the
where the property is
determines the executive judge in such NOTE: The failure to
to be sold for 20 days
court's jurisdiction. proceedings, whether post notice is not per se
in 3 public places,
(Roldan v. Sps. they be to allow or a ground for
preferably in
Barrios, G.R. No. disallow the invalidating a
conspicuous areas of
214803, 23 Apr. extrajudicial foreclosure sale
the municipal or city
2018) foreclosure of the provided that the notice
hall, post office and
mortgage, are not thereof is duly
public market in the
issued in the exercise of published in a
municipality or city
a judicial function but newspaper of general
where the sale is to
issued by the RTC circulation.
take place.
Executive Judge in the (Development Bank of
exercise of his the Philippines v.

2022 GOLDEN NOTES
Remedial Law
Aguirre, G.R. No. subordinate in right to that of the holder of the

144877, 03 Sept., 2007). mortgage. (Sec. 1, Rule 68, ROC)
However, statutory Procedure of Foreclosure Proceedings

provisions governing
publication of notice of 1. Judgment of Foreclosure (Sec. 2, Rule 68, ROC)
mortgage foreclosure 2. Order confirming the foreclosure sale with
sales must be strictly respect to the validity of the sale (Sec. 3, Rule
complied with and 68, ROC)
slight deviations 3. Deficiency judgment as to the correctness of
therefrom will the award (Sec. 6, Rule 68, ROC)
invalidate the notice
and render the sale at These 3 stages culminate to a final judgment. Each
the very least voidable. judgment or final order can be subject to an appeal
(Metrobank v. Nikko and the period of appeal is 30 days. A record on
Sources Corp., G.R. appeal shall be submitted.
178479, 23 Oct. 2009)
Publication Requirement APPEAL APPEAL APPEAL
If the assessed value

of the property SECTION
2: SECTION
3: SECTION 4:
exceeds P50,000, by Orderto paythe Orderto foreclose Confirmationor
If such property is Judgmentdebt sale by the court
publishing a copy of
worth more than Php
the notice once a
400, such notice shall 2. EXTRAJUDICIAL FORECLOSURE
week for 2
also be published once a (Act No. 3135)
consecutive weeks in
week for at least three
one newspaper
consecutive weeks in a Extrajudicial foreclosure is the mode to be used if
selected or that
newspaper of general there is a special power inserted in the real estate
having general
circulation. (Sec.3, Act mortgage contract allowing an extrajudicial
circulation in the
3135) foreclosure sale. Where there is no such special
province or city.
power, the foreclosure shall be done judicially
(Section 15(c), Rule
following Rule 68. (Riano, 2019)
39)
Article 1879, NCC provides that a special power to

1. JUDICIAL FORECLOSURE (RULE 68)
sell excludes the special power to mortgage. A
special power to mortgage excludes the special
Contents of a Complaint for Judicial Foreclosure
power to sell.
of REM
R.A. No. 3135 only provides for the requirements,
The complaint shall contain the following:
procedure, venue, and the mortgagor’s right to
1. The date and due execution of the mortgage;
redeem the property.
2. The assignments of the mortgage, if any;
3. The names and residences of the mortgagor and
Rule 68 applies only to judicial foreclosures of real
the mortgagee;
estate mortgage. Thus, there is no such special
4. A description of the mortgaged property;
power in the contract.
5. Date of the note or other documentary evidence
of the obligation secured by the mortgage, the
amount claimed to be unpaid thereon; and
6. The names and residences of all persons having
or claiming an interest in the property

Procedure FORECLOSURE PROCEEDINGS
A foreclosure suit will proceed like an ordinary civil COMPLAINT IN ACTION FOR FORECLOSURE
action insofar as they are not inconsistent with Rule
68.
Defendants that must be joined
How initiated
1. The persons obligated to pay the mortgage
debt;
Initiated by filing a Petition with the Executive Judge
2. The persons who own, occupy or control the
through the Clerk of Court who is also the ex-officio
mortgaged premises;
Sheriff of the City or Province where the property is
3. The transferee or grantee of the property; and
located. One filing fee shall be paid regardless of the
4. The second mortgagee or junior encumbrancer,
number of properties. The venue is where the
or any person claiming a right or interest in the
mortgaged property is located. (Aquino, 2021)
property subordinate to the mortgage sought to
be foreclosed; but if the action is by the junior
Notice and Publication
encumbrancer, the first mortgagee may also be
joined as defendant. (Regalado, 2012 2017)
1. Posting of notices of sale in three public places;
2. Publication of the notice of sale in a newspaper
NOTE: If the action is brought by the junior
of general circulation.
encumbrancer, the first mortgagee or the senior one
need not be joined. A property is taken subject to the
NOTE: Without compliance to the formal
first lien. What is now required by law is to implead
requirements of posting and publication, the
the junior mortgagee.
sale is null and void. The mortgagor may be
barred by estoppel or laches from claiming that
the requirements have not been complied with. JUDGMENT ON FORECLOSURE
FOR PAYMENT OR SALE
Posting in three public places doesn’t mean to
be in the place where the property is. If the It is the judgment of the court ordering the debtor
original date of the sale has been moved, the to pay within a period not less than 90 days nor
requirements of notice and publication should more than 120 days from the entry of judgment
be done again, otherwise, the sale shall be after ascertaining the amount due to the plaintiff. In
invalid. default of such payment the property shall be sold
at publication to satisfy judgment. (Sec. 2, Rule 68,
Personal notice to the mortgagor-debtor is not ROC, as amended)
necessary for the validity of the extrajudicial
foreclosure proceedings, unless there is a Remedy of Debtor if Foreclosure is not proper
stipulation in the mortgage contract for the
same. The judgment of the court is considered a final
adjudication of the case and hence, is subject to
Notice is for the bidders and to prevent a challenge by the aggrieved party by appeal or by
sacrifice of the property. There is no other post judgment remedies. (Riano, 2019)
requirement for the appraisal value, nor for
minimum bidding prices. (Riano, 2019) NOTE: The period given is not merely a procedural
requirement, it is a substantive right given to the
mortgage debtor as the last opportunity to pay the
debt and save his mortgaged property from final
disposition at the foreclosure sale.

2022 GOLDEN NOTES
Remedial Law
Remedy of Debtor; Extrajudicial Foreclosure NOTE: The mortgagor is entitled to a notice of

hearing of the confirmation of the sale; otherwise,
The debtor may, in the proceedings in which the order is void. Due process requires that said
possession was requested, but not later than thirty notice be given so that the mortgagor can resist the
days after the purchaser was given possession, motion and be informed that his right to redeem is
petition that the sale be set aside and the writ of cut-off. (Tiglao v. Botones, G.R. No. L-3619, 29 Oct.
possession cancelled, specifying the damages 1951) The order of confirmation is appealable.
suffered by him, because the mortgage was not
violated or the sale was not made in accordance Effect of Order of Confirmation
with the provisions hereof, and the court shall take
cognizance of this petition in accordance with the It shall operate to divest the rights in the property
summary procedure (Sec. 8, Act 3135) of all the parties to the action and to vest their rights
in the purchaser, subject to such rights of
SALE OF MORTGAGED PROPERTY; EFFECT redemption as may be allowed by law. (Sec. 3, Rule
If the mortgagor fails to pay the sum due within the

It is said that title vests in the purchaser upon a valid
period (90-120 days) stated by the court in its
confirmation of the sale and retroacts to the date of
judgment, upon motion of the mortgagee, the court
the sale. (Binalgan Estate v. Gatuslao, 74 Phil 128, 26
shall order the property to be sold in the manner
Feb. 1943; Riano, 2019)
and under the provisions of Rule 39 and other
regulations governing sales of real estate under
Remedy if the Mortgagor refuses to vacate
execution. (Sec. 3, Rule 68, ROC, as amended)
The purchaser may secure a writ of possession,

Effect of Sale of Mortgaged Property
upon motion, from the court which ordered the
foreclosure unless a third party is actually holding
The purchaser in a foreclosure sale is entitled to a
the same adversely to the judgment obligor. (Sec. 3,
writ of possession and that, upon an ex parte motion
of the purchaser, it is ministerial upon the court to
issue writ of possession in his favor. He is not
Q: Anita Marquez extended a loan to a certain
required to bring a separate action for possession
Benjamin Gutierrez which was secured by a real
after the redemption period has expired.
estate mortgage over a parcel of land. Since
Gutierrez defaulted in payment, Anita sought
However, where the parties in possession claim
the extra-judicial foreclosure of the subject
ownership thereof and, if there is some plausibility
property. Upon Gutierrez’s failure to redeem the
in their claim, issue must first be ventilated in a
property within the prescribed period, the title
proper hearing of the merits thereof. (Regalado,
was consolidated in the name of Spouses
2017)
Marquez, which, however, bore an annotation of
adverse claim in the names of Spouses Alindog.
Notice of Sale
Spouses Alindog sought for the annulment of the
real estate mortgage and claimed that they have
It is a well-settled rule that statutory provisions
purchased the property way back. Meanwhile,
governing publication of notice of mortgage
Anita filed an ex-parte petition for the issuance
foreclosure sales must be strictly complied with and
of a writ of possession over the property
that even slight deviations therefrom will invalidate
claiming that it is ministerial on the part of the
the notice. This is to inform the public of the nature
court following the consolidation of their title
and condition of the property to be sold, and of the
over the property. This was granted and the
time, place and terms of the sale. (Riano, 2019)
Spouses Alindog were served notice to vacate.
Thereafter, RTC appreciated the initial evidence

adduced by Sps. Alindog, concluding that they 3. If there be any further balance after paying
appear to have a right to be protected. Thus, them or if there be no junior encumbrances, the
notwithstanding the consolidation of Sps. same shall be paid to the mortgagor or any
Marquez’s title over the subject property, the person entitled thereto. (Sec. 4, Rule 68, ROC, as
RTC granted Sps. Alindog’s prayer for injunctive amended)
relief, holding that any further dispossession on
their part would cause them irreparable injury. HOW SALE TO PROCEED IN CASE THE DEBT IS
This was affirmed by the CA. Is the grant of NOT AT ALL DUE
injunctive relief correct?
If the debt for which the mortgage or encumbrance

A: NO. It is an established rule that the purchaser in
was held is not all due as provided in the judgment,
an extra-judicial foreclosure sale is entitled to the
as soon as a sufficient portion of the property has
possession of the property and can demand that he
been sold to pay the total amount and the costs due,
be placed in possession of the same either during
the sale shall terminate; and afterwards, as often as
(with bond) or after the expiration (without bond)
more becomes due for principal or interest and
of the redemption period therefor. The issuance of a
other valid charges, the court may, on motion, order
writ of possession to a purchaser in a public auction
more to be sold.
is a ministerial act. That said, the RTC therefore
gravely abused its discretion when it issued the
But if the property cannot be sold in portions
injunctive writ which enjoined Sps. Marquez from
without prejudice to the parties, the whole shall be
taking possession of the subject property. To be
ordered to be sold in the first instance, and the
sure, grave abuse of discretion arises when a lower
entire debt and costs shall be paid, if the proceeds of
court or tribunal patently violates the Constitution,
the sale be sufficient therefor, there being a rebate
the law or existing jurisprudence. Here, while the
of interest where such rebate is proper. (Sec. 5, Rule
RTC had initially issued a writ of possession in favor
68, ROC)
of Sps. Marquez, it defied existing jurisprudence
when it effectively rescinded the said writ by
In case the Debt is not all due
subsequently granting Sps. Alindog's prayer for
injunctive relief. The RTC's finding anent the initial
As soon as the sufficient portion of the property has
evidence adduced by Sps. Alindog constitutes
been sold to pay the total amount that is due and the
improper basis to justify the issuance of the writ of
cost thereon, the sale shall terminate because the
preliminary injunction in their favor since, in the
interest of the judgment debtor shall also be
first place, it had no authority to exercise any
protected.
discretion in this respect. (Spouses Marquez v.
Spouses Alindog, G.R. No. 184045, 22 Jan. 2014)
DEFICIENCY JUDGMENT
DISPOSITION OF PROCEEDS OF SALE

It is the judgment rendered by the court holding the
defendant liable for any unpaid balance due to the
1. The proceeds of the sale of the mortgaged
mortgagee if the proceeds from the foreclosure sale
property shall, after deducting the costs of the
do not satisfy the entire debt.
sale, be paid to the person foreclosing the
mortgage;
Recovery of Deficiency
2. When there is any balance or residue after

If there is a balance due to the plaintiff after
paying off the mortgage debt due, the same shall
applying the proceeds of the sale, the court, upon
be paid to junior encumbrances in the order of
motion, shall render judgment against the
their priority.
defendant for any balance for which, by the record
of the case, he may be personally liable to the

2022 GOLDEN NOTES
Remedial Law
plaintiff. Execution may issue immediately if the Instances when Court cannot Render Deficiency
balance is all due at the time of the rendition of the Judgment
judgment. If not due, the plaintiff shall be entitled to
execution at such time as the balance remaining 1. Case is covered by the Recto Law (Art. 1484,
becomes due under the terms of the original NCC);
contract, which time shall be stated in the judgment. 2. Mortgagor is a non-resident and who at the
(Sec. 6, Rule 68, ROC, as amended; Riano 2019) time of the filing of the action for foreclosure
and during the pendency of the proceedings
NOTE: No independent action need be filed to was outside the Philippines, unless there is
recover the deficiency from the defendant. The attachment;
judgement shall be rendered upon motion of the 3. Mortgagor dies, the mortgagee may file his
mortgagee in the same action. The deficiency claim with the probate court under Sec. 7, Rule
judgement can be the subject of appeal. 86; and
4. Mortgagee is a third person but not solidarily
Liability of a 3rd Party Mortgagor in case of liable with the debtor.
Deficiency Judgment
Q: Arlene borrowed P1 million from GAP Bank
If such third person did not assume personal (GAP) secured by the titled land of her friend
liability for the payment of the debt, the extent of Gretchen who, however, did not assume
recovery in the judgment of foreclosure shall be personal liability for the loan. Arlene defaulted
limited to the purchase price at the foreclosure sale and GAP filed an action for judicial foreclosure
and no deficiency judgment can be recovered of the real estate mortgage impleading Arlene
against said person. (Phil. Trust Co. v. Tan Suisa, 52 and Gretchen as defendants. The court rendered
Phil 852, 28 Feb. 1943) judgment directing Arlene to pay the
outstanding account of P1.5 million (principal
Deficiency Judgement, Immediately Executory plus interest) to GAP. No appeal was taken by
Arlene. Arlene failed to pay the judgment debt
The deficiency judgment is immediately executory if within the period specified in the decision. At
the balance is all due. If a third person merely the foreclosure sale, the land was sold to GAP for
executed a mortgage and did not personally assume P1.2 million. The sale was confirmed by the
the personal liability of the debt, the third-party court, and the confirmation of the sale was
liability is only up to the extent of the mortgage. registered with the Registry of Deeds on January
There can be no sufficient judgment against the 5, 2002.
third party.
On January 10, 2003, GAP filed an ex-parte
Extrajudicial Foreclosure; not Res Judicata motion with the court for the issuance of a writ
of possession to oust Gretchen from the land. It
In extrajudicial foreclosures under Act 3135, there also filed a deficiency claim for P800,000 against
is no deficiency judgment because the extrajudicial Arlene and Gretchen. The deficiency claim was
foreclosure is not a judicial procedure. However, the opposed by Arlene and Gretchen.
mortgagee can recover by action any deficiency in
the mortgage account which was not realized in the a. Resolve the motion for the issuance of a writ
foreclosure sale. This will not violate the res judicata of possession.
rule because the petition for extrajudicial b. Resolve the deficiency claim of the bank.
foreclosure is not an action in court. (2003 BAR)
A:
a. In judicial foreclosure by banks such as GAP, the
mortgagor or debtor whose real property has

been sold on foreclosure has the right to the auction buyer, is he entitled to the writ of
redeem the property within 1 year after the sale possession as a matter of right? If so, what is the
(or registration of the sale). However, under action to be take?
Sec. 47 of the General Banking Law of 2000, the
purchaser at the auction sale has the right to A: YES. The auction buyer is entitled to a writ of
obtain a writ of possession after the finality of possession as a matter of right. It is settled that the
the order confirming sale. The motion for writ buyer in a foreclosure sale becomes the absolute
of possession, however, cannot be filed ex parte. owner of the property purchased if it is not
There must be a notice of hearing. redeemed within a period of one year after the
b. The deficiency claim of the bank may be registration of the certificate of sale. He is, therefore,
enforced against the mortgage debtor Arlene, entitled to the possession of the property and can
but it cannot be enforced against Gretchen, the demand it at any time following the consolidation of
owner of the mortgaged property, who did not ownership in his name and the issuance to him of a
assume personal liability of the loan. new transfer certificate of title. In such a case, the
bond required in Section 7 of Act No. 3135 is no
Q: Is the buyer in the auction sale arising from longer necessary. Possession of the land then
an extra-judicial foreclosure entitled to a writ of becomes an absolute right of the purchases as
possession even before the expiration of the confirmed owner. Upon proper application and
redemption period? If so, what is the action to be proof of title, the issuance of the writ of possession
taken? becomes a ministerial duty of the court. (LZK
A: YES. The buyer in the auction sale is entitled to a Holdings and Development Corporation v. Planters
writ of possession even before the expiration of the Development Bank, G.R. No. 167998, 27 Apr. 2007;
redemption period upon the filing of the ex parte Sps. Marquez v. Sps. Alindog, G.R. No. 184045, 22 Jan.
petition for issuance of a writ of possession and 2014; Sps. Gatuslao v. Leo Ray Yanson, G.R. No.
posting of the appropriate bond. Under section 7 of 191540, 21 Jan. 2015)
Act No. 3135, as amended, the writ of possession
may be issued to the purchaser in a foreclosure sale Q: Suppose that after the title to the lot has been
either within the one-year redemption period upon consolidated in the name of the auction buyer,
the filing of a bond, or after the lapse of the said buyer sold the lot to a third party without
redemption period, without need of a bond. (LZK first getting a writ of possession. Can the
Holdings and Development Corporation v. Planters transferee exercise the right of the auction
Development Bank, G.R. No. 167998, 27 Apr. 2007) buyer and claim that it is a ministerial duty of
the court to issue a writ of possession in his
Stated otherwise, Section 7 of Act No. 3135, as favor? Briefly explain. (2016 BAR)
amended, also refers to a situation wherein the
purchaser seeks possession of the foreclosed A: YES. The transferee can exercise the right of the
property during the 12-month period for auction buyer. A transferee or successor-in-interest
redemption. Hence, upon the purchaser’s filing of of the auction buyer by virtue of the contract of sale
the ex parte petition and posting of the appropriate between them, is considered to have stepped into
bond, the RTC shall, as a matter of course, order the the shoes of the auction buyer. As such, the
issuance of the writ of possession in favour of the transferee is necessarily entitled to avail of the
purchaser. (Spouses Nicasio C. Marquez and Anita J. provisions of Sec. 7 of Act 3135, as amended, as if he
Marquez v. Spouses Carlito Alindog and Carmen is the auction buyer. (Sps. Gatuslao v. Yanson, ibid.)
Alindog, G.R. No. 184045, 22 Jan. 2014; Spouses Jose
Gatuslao and Ermila Gatuslao v. Leo Ray Yanson, G.R. When the lot purchased at a foreclosure sale is in
No. 191540, 21 Jan. 2015) turn sold or transferred, the right to the possession
thereof, along with all other rights of ownership,
Q: After the period of redemption has lapsed and transfers to its new owner. (Sps. Gallent v. Velasquez,
the title to the lot is consolidated in the name of G.R. No. 203949, 06 Apr. 2016) Ergo, it is a ministerial

2022 GOLDEN NOTES
Remedial Law
duty of the court to issue a writ of possession in Kinds of Redemption

favor of the transferee of the auction buyer.
1. Equity of redemption – Right of mortgagor to
REGISTRATION redeem the mortgaged property after his
default in the performance of the conditions of
The buyer acquires title upon finality of the the mortgage but before the sale of the
confirmation sale. The certificate of sale cannot be mortgaged property or confirmation of sale.
registered without the final order confirming the The mortgagor pays the secured debt within the
sale. (Sec. 7, Rule 68, ROC, as amended) period specified.
Existence and absence of Right of Redemption Where applicable: Judicial foreclosure of real
estate mortgage; and Chattel mortgage
1. When no right of redemption exists: the foreclosure
certificate of title in the name of the mortgagor
shall be cancelled, and a new one issued in the XPN: There is no right of redemption from a
name of the purchaser. judicial foreclosure sale after the confirmation
of the sale, except those granted by banks and
2. When right of redemption exists: the financial institutions as provided by the General
certificate of title in the name of the mortgagor Banking Act. (GSIS v. CFI of Iloilo, G.R. No. 45322,
shall not be cancelled, but the certificate of sale 05 July 1989)
and the order confirming the sale shall be
registered and a brief memorandum thereof If the mortgagee is a bank, the mortgagor may
made by the register of deeds upon the exercise a right of redemption and this rule
certificate of title. applies even if the foreclosure is judicial in
accordance with Rule 68 of the Rules of Court.
Effects of Redemption of Property
Period to exercise: within 90-120 days from
1. When property is redeemed: the deed of the date of the service of the order of
redemption shall be registered with the registry foreclosure or even thereafter but before the
of deeds, and a brief memorandum thereof shall order of confirmation of the sale.
be made by the registrar of deeds on said
certificate of title. 2. Right of redemption – Right of the mortgagor
to redeem the mortgaged property within one
2. When the property is not redeemed, the final year from the date of registration of the
deed of sale executed by the sheriff in favor of certificate of sale. It applies in case of
the purchaser at the foreclosure sale shall be extrajudicial foreclosure.
registered with the registry of deeds;
whereupon the certificate of title in the name of Where applicable: Extrajudicial foreclosure
the mortgagor shall be cancelled and a new one
issued in the name of the purchaser. Period to exercise: within 1 year from the date
of registration of the certificate of sale (Rules of
REDEMPTION Court Sec. 6, Act No. 3135; Sec. 28, Rule 39). The
right of redemption, as long as within the period
Redemption is a transaction by which the prescribed, may be exercised regardless of
mortgagor reacquires or buys back the property whether or not the mortgagee has subsequently
which may have passed under the mortgage or conveyed the property to some other party.
divests the property of the lien which the mortgage (Sta. Ignacia Rural Bank v. CA, G.R. No. 97812, 01
may have created. Mar. 1994)

NOTE: Notwithstanding Act No 3135, juridical b. 1% interest per month on the purchase
persons whose property is being sold pursuant price from the date of registration of the
to an extrajudicial foreclosure, shall have the certificate up to the time of redemption;
right to redeem the property in accordance c. Necessary expenses incurred by the
with Section 47 of the General Banking Act until, purchase for the improvements made by
but not after, the registration of the certificate him to preserve the property during the
of sale with the applicable Register of Deeds period of redemption; and,
which in no case shall be more than 3 months d. Taxes paid and amount of purchaser’s
after foreclosure, whichever is earlier. Owners prior lien, if any, with the same rate of
of property that has been sold in a foreclosure interest computed from the date of
sale prior to the effectivity of this General registration of sale, up to the time of
Banking Act shall retain their redemption rights redemption.
until their expiration. (RA 8791, Sec. 47)
2. When mortgagee is a bank (Sec. 47, General
EQUITY OF RIGHT OF Banking Law, 2000):
REDEMPTION REDEMPTION
Right of the debtor, his a. Amount fixed by the court or amount due
Right of the defendant successor in interest or under the mortgage deed;
mortgagor to any judicial creditor or b. Interest;
extinguish the judgment creditor of c. Cost and expenses.
mortgage and retain said debtor or any
ownership of the person having a lien on Requisites for valid Right of Redemption
property by paying the the property
debt within a period of subsequent to the 1. Must be made within twelve (12) months from
not less than 90 nor mortgage or deed of the time of the registration of the sale in the
more than 120 days trust under which the Office of the Registry of Property;
from the entry of property is sold to
judgment or even after redeem the property 2. Payment of the purchase price of the property
the foreclosure sale within 1 year from the plus 1% interest per month together with the
but prior to registration of the taxes thereon, if any, paid by the purchaser with
confirmation. Sheriff’s certificate of the same rate of interest computed from the
foreclosure sale. date of registration of the sale;
Governed by Secs. 29-
Governed by Rule 68.
31, Rule 39. 3. Written notice of the redemption must be
served on the officer who made the sale and a
Who may Redeem duplicate filed with the proper Register of
Deeds (Rosales v. Yboa, G.R. No. L-42282, 28 Feb.
1. Mortgagor or one in privity of title with the 1983); and
mortgagor;
2. Successors-in-interest under Sec. 29, Rule 39, 4. Tender of payment within the prescribed
Rules of Court. period to make the redemption for future
enforcement (Sec. 26, Act No. 3135; Sec. 8, Rule
Amount of Redemption Price 39, ROC, as amended).
1. When mortgagee is not a bank NOTE: The filing of a court action to enforce
redemption, being equivalent to a formal offer to
a. Purchase price of the property; redeem, would have the effect of “freezing” the
expiration of the one-year period. (Heirs of
Quisumbing v. PNB, G.R. No. 178242, 20 Jan. 2009)

2022 GOLDEN NOTES
Remedial Law
Period of Redemption a. Juridical persons are allowed to exercise the

right of redemption until the registration, and
1. Extrajudicial Foreclosure in no case more than three months after the
foreclosure sale, whichever comes first.
a. Natural Person- one (1) year from b. Section 47 did not divest juridical persons of
registration of the certificate of sale with the right to redeem their foreclosed
the Registry of Deeds. properties but only modified the time for the
exercise of such right by reducing the one
NOTE: The statutory period of redemption provided for in R.A. No. 3135.
is only directory and can be extended by
agreement of the parties provided: By an amendment by the General Banking Law of
2000, juridical mortgagors like partnerships and
i. The agreement to extend is corporations are barred from the right of
voluntary; and redemption of mortgaged property sold pursuant to
ii. The debtor commits to pay the an extrajudicial foreclosure, after the registration of
redemption price on a fixed date. the certificate of foreclosure with the applicable
(Gojudo v. Traders Royal Bank, G.R. Register of Deeds.
No. 151098, 21 Mar. 2006)
For purposes of reckoning the one-year redemption
b. Juridical Person – same rule as natural period in case of individual mortgagors, or the
person. three-month reckoning period for juridical
persons/mortgagors the same shall be reckoned
c. Juridical Person (mortgagor) and Bank from the date of confirmation of the auction sale
(mortgagee) – three (3) months after which is the date when the certificate of title is
foreclosure or before registration of issued. (BIR RMC No. 15-2008, 15 Aug. 2008)
certificate of foreclosure whichever is
earlier. (RA 8791, Sec. 47) Period of Redemption is not a prescriptive
period
2. Judicial Foreclosure – within the period of 90-
120 days from the date of the service of the The period of redemption is not a prescriptive
order of foreclosure or even thereafter but period but a condition precedent provided by law to
before the order of the confirmation of the sale. restrict the right of the person exercising
(Secs. 2&3, Rule 28, ROC) redemption.
NOTE: Allowing redemption after the lapse of If a person exercising the right of redemption has
the statutory period, when the buyer at the offered to redeem the property within the period
foreclosure sale does not object but even fixed, he is considered to have complied with the
consents to the redemption, will uphold the condition precedent prescribed by law and may
policy of the law which is to aid rather than thereafter bring an action to enforce redemption. If,
defeat the right of redemption (Ramirez v. CA, on the other hand, the period is allowed to lapse
G.R. No. 98147, 05 Mar. 1993) before the right of redemption is exercised, then the
action to enforce redemption will not prosper, even
3. THE GENERAL BANKING LAW OF 2000 if the action is brought within the ordinary
(Sec. 47, R.A. No. 8751) prescriptive period. (Sps. Maximo Landrito vs. CA,
G.R. No. 133079, 09 Aug. 2005)
GR: Redemption period is one year from
registration of the certificate of sale.
XPN: Section 47 of the General Banking Law:

Effect of Failure to Redeem must be conducted to determine whether

possession over the subject property is still with the
Act No. 3135 provides that if the mortgagor or mortgagor or is already in the possession of a third
successors-in-interest failed to redeem within the party holding the same adversely to the defaulting
redemption period, the title over the property debtor or mortgagor. If the property is in the
consolidates in the purchaser. The consolidation possession of the mortgagor, a writ of possession
confirms the purchaser as the owner entitled to the could thus be issued. Otherwise, the remedy of a
possession of the property. The mortgagor, by writ of possession is no longer available to such
failing to redeem loses all interest in the property. purchaser, but he can wrest possession over the
(United Coconut Planters Bank v. Lumbo, G.R. No. property through an ordinary action of ejectment.
162757, 11 Dec. 2013) (Okabe v. Saturnino, GR No. 196040, 26 Aug. 2014).
WRIT OF POSSESSION; POSSESSION BY Pendency of action for Annulment of Sale

PURCHASER OF FORECLOSED PROPERTY
Any question regarding the validity of the mortgage
GR: Upon the finality of the order of confirmation of or its foreclosure cannot be a legal ground for
sale or upon the expiration of the period of refusing the issuance of a writ of execution. The
redemption allowed by law, the purchaser at the right of the purchaser to have possession of the
auction sale or the last redemptioner, if any, shall be subject property would not be defeated
entitled to the possession of the property notwithstanding the pendency of a civil case seeking
the annulment of the mortgage or of the
XPN: A third party is actually holding the same extrajudicial foreclosure. (De Vera v. Agloro, G.R. No.
adversely to the judgment debtor. If so, the writ of 155673, 14 Jan. 2005)
possession will not issue as a matter of course.
When Writ of Possession not available:
Ministerial Duty of the Court
1. Where mortgaged property under lease
The purchaser in a foreclosure sale is entitled to a previously registered in the Registry of
writ of possession upon the finality of the order of Property or despite non-registration, the
confirmation or expiration of the period of mortgagee has prior knowledge of the existence
redemption. That upon an ex parte motion of the and duration of the lease (Ibasco v. Caguioa, G.R.
purchaser, it is the ministerial duty of the court to No. L62619, 19, Aug. 1986);
issue the writ of possession unless a person is
occupying the property adverse to the interest of 2. Where the mortgagor refuses to surrender
the judgment debtor. property sold. The remedy is to file an ordinary
action for the recovery of possession in order
Therefore, the purchaser need not file a separate that the mortgagor may be given opportunity to
action for possession to acquire possession of the be heard; and
property after the redemption period has expired.
However, where the parties in possession claim 3. When third party is in actual possession
ownership thereof, and there may be possibility of adverse to the judgment debtor (Sec. 36, Rule
said claim, the issue of ownership must be 39, ROC, as amended; Sec. 6, Act No. 3135)
ventilated in a proper case in the merits (Spouses
Kho v. VA, G.R. No. L-83498, 22 Oct. 1991). Possession in Extrajudicial Foreclosure
Enforcement against Third Persons The purchaser may petition the Court of First
Instance of the province or place where the
If the purchaser is a third party who acquired the property or any part thereof is situated, to give him
property after the redemption period, a hearing possession thereof during the redemption period,

2022 GOLDEN NOTES
Remedial Law
furnishing bond in an amount equivalent to the use defendant’s interest in a specific property and not to
of the property for a period of twelve months, to render judgment against him.
indemnify the debtor in case it be shown that the
sale was made without violating the mortgage or Kinds of Partition
without complying with the requirements of Act
3135. (Sec.7, Act. 3135) 1. Judicial partition; and
2. Extrajudicial partition
ANNULMENT OF SALE
Jurisdiction over Partition
Petition for Annulment of Foreclosure
Proceedings Since the action affects interest in real property,
jurisdiction shall be determined by inquiring into
This petition contests the presumed right of the assessed value of the property. Hence an action
ownership of the buyer in a foreclosure sale and for partition may be filed in the MTC, if the assessed
puts in issue such presumed right of ownership value is not more than P2,000,000. If the subject
while an ex parte petition for issuance of a writ of matter is personal property, an action should be
possession is a non-litigious proceeding. filed in the MTC if the value should not be more than
P400,000. (Sec. 33, B.P. 129, as amended by R.A. No.
Filing of a petition for nullification of foreclosure 11576)
proceedings with motion for consolidation is not
allowed as it will render nugatory the presumed Requisites of a valid Partition
right of ownership, as well as the right of
possession, of a buyer in a foreclosure sale. 1. Right to compel the partition;
2. Complaint must state the nature and extent of
plaintiff's title and a description of the real
H. PARTITION (RULE 69) estate of which partition is demanded; and
3. All other persons interested in the property
must be joined as defendants. (Sec. 1, Rule 69,
ROC, as amended)
It is a process of dividing and assigning property
owned in common among the various co-owners
Who may file
thereof in proportion to their respective interests in
said property.
The action shall be brought by the person who has a
right to compel the partition of real estate (Sec. 1,
NOTE: It is commenced by a complaint. (Sec. 1, Rule
Rule 69, ROC, as amended) or of an estate composed
69)
of personal property, or both real and personal
property. (Sec. 13, Rule 69, ROC, as amended)
The determination as to the existence of co-
ownership is necessary in the resolution of an
The plaintiff is a person who is supposed to be a co-
action for partition. (Lacbayan v. Samoy, G.R. No.
owner of the property or estate sought to be
165427, March 21, 2011) An action for partition will
partitioned. The defendants are all the co-owners
not lie if the claimant has no rightful interest in the
who are indispensable parties (Sepuveda v. Pelaez,
property. (Co Guik Lun v. Co, G.R. No. 184454, 3 Aug.
G.R. No. 152195, 31 Jan. 2005).
2011)
NOTE: All the co-owners are indispensable parties.

Nature of Partition
As such, an action for partition will not lie without
the joinder of the said parties. (Sepuveda v. Pelaez,
Partition and accounting under Rule 69 is in the
G.R. No. 152195, 31 Jan. 2005)
nature of an action quasi in rem. Such an action is
essentially for the purpose of affecting the

Non-inclusion of a Co-owner in an Action for Issues to be resolved in an Action for Partition

Partition
1. Whether the plaintiff is indeed a co-owner of
1. Before judgment – Not a ground for a motion the property sought to be partitioned.
to dismiss. The remedy is to file a motion to 2. How the property is to be divided between the
include the party. plaintiff and defendant or what portion should
2. After judgment – Makes the judgment therein go to each co-owner.
void because co-owners are indispensable
parties. TWO STAGES IN EVERY ACTION FOR
PARTITION
NOTE: Creditors or assignees of co-owners may
intervene and object to a partition affected without 1. First stage/phase – determination of whether
their concurrence. But they cannot impugn a or not a co-ownership in fact exists and a
partition already executed unless there has been partition is proper
fraud or in case it was made notwithstanding a
formal opposition presented to prevent it. (Sec. 12, NOTE: An action for partition is at once an
Rule 69) action for declaration of co-ownership and for
segregation and conveyance of a determinate
3. Subject Matter is Real Property: an action for portion of the properties involved. If the trial
partition should be filed in the MTC or RTC of court should find after trial the existence of co
the province where the property or part ownership among the parties, it may and should
thereof is situated. order the partition of the properties in the same
action. (Vda. de Daffon v. Court of Appeals, G.R.
NOTE: If several distinct parcels of land are No. 129017, 20 Aug. 2002)
situated in different provinces, venue may be
laid in the MTC or RTC of any of said provinces. 2. Second stage/phase – commences when it
appears that the parties are unable to agree
4. Subject Matter is Personal Property: in the upon the partition directed by the court. (Riano,
place where the plaintiff or the defendant 2019)
resides, at the election of the plaintiff.
Multiple Appeals
Matters to allege in the Complaint for Partition
The judgment declaring the existence of a co-
1. The nature and extent of his title; ownership may be appealed. This is one of the
2. An adequate description of the real estate of instances in which the Rules allow Multiple Appeals.
which partition is demanded; As such, the record on appeal is required to be
3. Shall join as defendants all other persons submitted. The period to appeal is 30 days.
interested in the property (Sec. 1, Rule 69, ROC,
as amended); and When court can issue the Order of Partition
4. Demand for the accounting of the rents, profits
and other income from the property which he During the trial, the court shall determine whether
may be entitled to. or not the plaintiff is truly a co-owner of the
property, that there is indeed a co-ownership
NOTE: When the allegations of the complaint allege among the parties, and that a partition is not legally
that the plaintiff asserts exclusive ownership of the proscribed thus may be allowed. If the court so finds
party sought to be partitioned, the nature of the that the facts are such that a partition would be in
action is not one for partition. It is an action for order, and that the plaintiff has a right to demand
recovery of property. (De la Cruz v. Court of Appeals, partition, the court will issue an order of partition.
G.R. No. 139442, 06 Dec. 2006)

2022 GOLDEN NOTES
Remedial Law
Modes of Partition The appointment of commissioners is mandatory

unless there is an extrajudicial partition between
1. By agreement of the parties – where they make the parties. They have the power to affect the
the partition among themselves by proper partition but not to inquire into the question of
instruments of conveyance. ownership or possession.
NOTE: The court shall confirm the partition so NOTE: When it is made to appear to the
agreed upon by all the parties, and such commissioners that the real state, or a portion
partition, together with the order of the court thereof, cannot be divided without prejudice to the
confirming the same, shall be recorded in the interests of the parties, the court may order it
registry of deeds of the place in which the assigned to one of the parties willing to take the
property is situated. (Sec. 2, Rule 69, ROC as same, provided he pays to the other parties such
amended) amount as the commissioners deem equitable. (Sec.
2. By judicial proceedings under Rule 69 (order of
partition) – if the co-owners are unable to agree If the interested parties ask for the property be sold
upon the partition. (Art. 494 NCC; Figuracion- instead of being assigned the Court shall order the
Gerilla v. Vda. De Figuracion, G.R. No. 154322, 22, Commissioners to sell the real estate at public sale
Aug. 2006) under such conditions and within such time as the
court may determine. (Ibid.)
NOTE: Nothing in this Rule shall be construed to
restrict or prevent persons holding real estate Duties of the Commissioners in an Action for
jointly or in common from making an amicable Partition (R-A-S)
partition thereof by agreement and suitable
instruments of conveyance without recourse to an 1. Make a full and accurate Report to the court of
action. (Sec. 12, Rule 69, ROC as amended) all their proceedings as to the partition;
2. The Assignment of real estate to one of the
If the co-owners cannot agree on the partition of the parties; or
property, the only recourse is the filing of an action 3. The Sale of the same.
for partition. (Riano, 2019)
Commissioner’s Report
PARTITION BY COMMISSIONERS;
APPOINTMENT OF COMMISSIONERS, The interested parties are allowed 10 days within
COMMISSIONER’S REPORT; COURT ACTION which to file objections to the findings of the report.
UPON COMMISSIONER’S REPORT (Sec. 6, Rule 69, ROC, as amended) It is not binding
until the count has accepted it and rendered
Appointment of Commissioners judgment thereon.
If co-owners are unable to agree upon the partition Court not bound by the Report of the
of the property, the next stage in the action is the Commissioner
appointment of commissioners. (Riano, 2019)
The court may, upon hearing, accept the report and
The court shall appoint not more than 3 render judgment in accordance with the same;
commissioners of competent and disinterested recommit the same to the commissioners for further
persons to make or effect the partition. They shall report of the facts; accept or reject the report in
make a full and accurate report to the court of all part; or render judgment that shall effectuate a fair
their proceedings as to the partition for the parties. and just partition of the real estate. (Sec. 7, Rule 69,
(Sec. 3, Rule 69, ROC, as amended) ROC, as amended)

NOTE: The rule mandates that a hearing must be 3. If the property is sold and the sale confirmed by
conducted before a rendition of a judgment. the court, the judgment shall state:
Partition by Agreement vs. Partition when a. The name of the purchaser/s making the
Parties fail to reach an Agreement payment; and
b. A definite description of the parcels of real
PARTITION WHEN estate sold to each purchaser.
PARTITION BY PARTIES FAIL TO
AGREEMENT REACH AN NOTE: A certified copy of the judgment shall in
AGREEMENT either case be recorded in the registry of deeds of
Parties agreed to make Parties failed to agree the place in which the real estate is situated, and the
the partition among to make the partition. expenses of such recording shall be taxed as part of
themselves. the costs of the action. (Sec. 11, Rule 69, ROC, as
The Court shall amended)
Done through an appoint not more than
instrument of three commissioners Stages in an Action for Partition could be the
conveyance or deed of to assist the Court and Subject of Appeal
partition. the parties in making
the partition. 1. Order determining the propriety of the
The report of the partition;
The deed shall be 2. Judgment as to the fruits and income of the
commissioners must
confirmed by the property;
be confirmed by the
court. 3. Judgment of partition
court.
JUDGMENT AND ITS EFFECTS NOTE: The mode of appeal is record on appeal. This
is one of the instances when the rules allow multiple
Contents of Judgment and its Effects appeals. A judgment declaring the existence of co-
ownership is immediately appealable. Judgment
1. If actual partition of property is made, the directing an accounting is appealable regardless of
judgment shall state definitely: whether the accounting is the principal relief sought
or a mere incident, and becomes final and executory
a. The metes and bounds and adequate within the reglementary period. (Miranda v. CA, G.R.
description; and No. L-33007, 18 June 1976)
b. The particular portion of the real estate
assigned to each party. Partition of Personal Property
NOTE: The judgment shall have the effect The provisions of this Rule shall apply to partitions
of vesting in each party to the action the of estates composed of personal property, or of both
portion of the real estate assigned to him. real and personal property, in so far as the same
(Sec. 11, Rule 69, ROC, as amended) may be applicable. (Sec. 13, Rule 69, ROC, as
amended)
2. If the whole property is assigned to one of the
parties upon his paying to the others the sum or Prescription of Action
sums ordered by the court, the effect of
judgment shall be to vest in the party making GR: An action to demand partition of a co-owned
the payment the whole of the real estate free property does not prescribe as long as there is a
from any interest in the part of the other parties recognition of the co-ownership, expressly or
to the action. (Ibid) impliedly (Art. 494, NCC).

2022 GOLDEN NOTES
Remedial Law
XPN: A co-owner may acquire ownership thereof by

prescription where there exists a clear repudiation I. FORCIBLE ENTRY
of the co-ownership and the co-owners are apprised AND UNLAWFUL DETAINER
of the claim of adverse and exclusive ownership.
(Heirs of Restar v. Heirs of Cichon, G.R. No. 161720, 22
Nov. 2005; (Riano, 2019)) Ejectment Proceedings
NOTE: The Supreme Court held that where the Unlawful detainer and forcible entry suits are
transferees of an undivided portion of the land designed to summarily restore physical possession
allowed a co-owner of the property to occupy a of a piece of land or building to one who has been
definite portion thereof and had not disturbed the illegally or forcibly deprived thereof, without
same for a period too long to be ignored, the prejudice to the settlement of the parties' opposing
possessor is in a better condition or right than said claims of juridical possession in appropriate
transferees (Potior est conditio possidentis). Such proceedings.
undisturbed possession had the effect of a partial
partition of the co-owned property which entitles Nature of Ejectment Proceedings
the possessor to the definite portion which he
occupies. (Vda. de Cabrera v. Court of Appeals, G.R. An action for ejectment (forcible entry or unlawful
No. 108547, 03 Feb 1997) detainer) is a real action because it involves the
issue of possession of real property (Sec. 1, Rule 4,
WHEN PARTITION IS NOT ALLOWED ROC, as amended). It is also however, an action in
personam because the action is directed against a
Instances when a Co-owner may not demand particular person who is sought to be held liable
Partition (A-D-L-U-C) (Domagas v. Jensen, G.R. No. 158407, 17 Jan. 2005).
d. There is an Agreement among the co-owners DEFINITION AND DISTINCTION

to keep the property undivided for a certain
period of time but not exceeding ten years (Art. Forcible Entry
494, NCC);
e. When partition is prohibited by the Donor or It is an action to recover possession founded upon
testator for a period not exceeding 20 years illegal possession from the beginning when one is
(Art. 494; Art. 1083, NCC); deprived of physical possession of real property by
f. When partition is prohibited by Law (Art. 494, means of force, intimidation, threat, strategy, or
NCC); stealth. It is commenced by a verified complaint.
g. When property is not subject to physical (Sec. 1, Rule 70)
division and to do so would render it
Unserviceable for the use for which it is Requisites of forcible entry (P-F-I-S-T-S-1)
intended (Art. 495, NCC); and
h. When the condition imposed upon voluntary 1. A person is deprived of Possession of any land
heirs before they can demand partition has not or building;
yet been fulfilled. (Art. 1094, NCC) 2. by Force, Intimidation, Strategy, Threat, or
Stealth (FISTS); and
3. Action is brought within 1 year from the
unlawful deprivation. (Sec. 1, Rule 70)

Questions to be resolved in an action for forcible July 1, 2013, citing Sps. Maninang v. CA, G.R. No.
entry (A-O-R) 121719, 16 Sep 1999)
1. Who has Actual possession over the real 2. Action is brought within 1 year after such
property; unlawful deprivation or withholding of
2. Was the possessor Ousted therefrom within 1 possession; and
year from the filing of the complaint by force,
intimidation, strategy, threat or stealth; and 3. Demand to pay or comply with the conditions of
3. Does the plaintiff ask for the Restoration of his the lease and to vacate is made upon the lessee.
possession? (Dizon v. Concina, G.R. No. 23756, 27 (Sec. 1, Rule 70, ROC, as amended)
Dec. 1969)
NOTE: If the complaint does not allege facts
Unlawful Detainer showing compliance with the prescribed one-year
period to file an action for unlawful detainer, then it
It is where one illegally withholds possession after cannot properly qualify as such action over which
the expiration or termination of his right to hold the MTC can exercise jurisdiction. Such allegations
possession under any contract, express or implied. are jurisdictional and crucial. It may then be an
(Riano, 2019) accion publiciana or accion reivindicatoria. (Estate
of Manantan v. Somera, G.R. No. 145867, 7 Apr. 2009)
It is commenced by a verified complaint. (Sec. 1, Rule
70, ROC, as amended) Q: Milagros A. Viray alleged that she is the lawful
owner of a stall space in a commercial building
NOTE: In a summary action of unlawful detainer, built on the land covered by TCT No. 25216
the question to be resolved is which party has the registered in her name and declared for taxation
better or superior right to the physical/material purposes. In July 1993, Milagros verbally leased
possession (or de facto possession) of the disputed the said stall to Florita Viray, her daughter-in-
premises. Whereas in the action for recovery of law, the wife of her son, Julito Viray. It was
ownership, the question to be resolved is which agreed upon by the parties that Florita will use
party has the lawful title or dominical right (i.e., the stall for selling dressed chicken only. A
owner's right) to the disputed premises. (Bradford demand to pay the rentals in arrears and to
United Church of Christ Inc., v. Dante Ando, et al. G.R vacate the stall was sent to her on May 20, 2014
No. 195669, 30 May 2016) to no avail. Hence, this complaint. In her Answer,
Florita countered that the lot is co- owned by
Requisites of Unlawful Detainer Milagros and her children as heirs to the estate
of Chan Lee a.k.a. Jose Viray, Milagros' late
1. Possession of any land or building is unlawfully husband. The lot used to be part of a bigger lot
withheld from a lessor, vendor, vendee, or other covered by TCT No. 2870, a conjugal property of
person after the expiration or termination of Chan Lee and Milagros. During the pendency of
the right to hold possession by virtue of any the case in the CA, Milagros died and she was
contract express or implied; substituted by her heirs, John, Julito, and
Marcelino, Jr., as represented by John A. Viray.
NOTE: It has been held that prior physical Thereafter, Florita filed a Manifestation with
possession by the plaintiff is not an Motion to Dismiss Appeal praying that the
indispensable requirement in an unlawful ejectment case be dismissed. Petitioner claimed
detainer case brought by a vendee or other that since the property is now under co-
person against whom the possession of any ownership and one of its co-owners is Julito, her
land is unlawfully withheld after the expiration husband, a situation arises where a co-owner
or termination of a right to hold possession. becomes a party against his wife which is a
(William Go v. Albert Looyuko, G.R. No. 19652, strange case. Petitioner claimed that a co-owner

2022 GOLDEN NOTES
Remedial Law
cannot be ejected from a portion of an undivided any contractual or legal basis. Hence, the
property. Is the action for unlawful detainer foundation’s possession of the subject property
proper? is only by tolerance. The spouses served notices
upon the foundation to vacate the premises of
A: NO. From 1995 to 2009, before the title was said land but the latter did not heed such
registered in the name of Milagros, Florita’s notices. Will the case prosper?
possession of the subject property was by virtue of
co-ownership. In an unlawful detainer case, the key A: NO. The proper remedy for was to file a
jurisdictional fact that should be proved is that the Complaint for Forcible Entry and not a case for
acts of tolerance should have been present right unlawful detainer. In forcible entry, one is deprived
from the very start of possession, and We may of physical possession of any land or building by
hasten to add, that such nature of possession by means of force, intimidation, threat, strategy, or
tolerance shall continue up to the filing of the stealth. Where the defendant’s possession of the
ejectment complaint. When Milagros filed a property is illegal ab initio, the summary action for
complaint for unlawful detainer in 2014, she failed forcible entry is the remedy to recover possession.
to establish that petitioner's possession of the Assuming that these allegations are true, it hence
subject property was tolerated all the way from the follows that the Foundation’s possession was illegal
very beginning. In the absence of proof of tolerated from the very beginning. Therefore, the foundation
possession up to the filing of the complaint for of the spouses’ complaint is one for forcible entry.
unlawful detainer, the jurisdictional element of an Thus, there can be no tolerance at the inception.
illegal detainer case is not satisfied. (Florita Viray v Further, considering that the action for forcible
Heirs of Milagros Viray, G.R. 252325, 18 Mar. 2021) entry must be filed within one year from the time of
dispossession, the action for forcible entry has
Formal Contract not a prerequisite in Unlawful already prescribed when Spouses Del Rosario filed
Detainer their Complaint in 2003. (Spouses Del Rosario v.
Gerry Roxas Foundation, Inc., G.R. No. 170575, 8 June
Even if there is no formal contract between the 2011)
parties, there can still be an unlawful detainer
because implied contracts are covered by ejectment Forcible Entry vs. Unlawful Detainer
proceedings. Possession by tolerance creates an
implied promise to vacate the premises upon the UNLAWFUL
FORCIBLE ENTRY
demand of the owner. (Peran v. CFI of Sorsogon, G.R. DETAINER
(DETENTACION)
No. 57259, 13 Oct. 1983) Tolerance must be present (DESAHUCIO)
right from the start of possession sought to be Possession is
recovered to categorize a cause of action as one for inceptively lawful but it
Possession of the land
unlawful detainer. (Muñoz v CA, G.R. No. 102693, 22 becomes illegal by
by the defendant is
Sept. 1993, citing Sarona v. Villegas G.R. No. L-22984, reason of the
unlawful from the
27 Mar. 1968) Otherwise, the proper remedy would termination of his right
beginning as he
be forcible entry. to the possession of the
acquires possession by
property under his
FISTS.
Q: In 2003, Spouses del Rosario filed a Complaint contract with the
for Unlawful Detainer against Gerry Roxas plaintiff.
Foundation, Inc. The spouses alleged that Demand to vacate is not
Demand is jurisdictional
sometime in 1991, without their consent and required before the
if the ground is non-
authority, Gerry Roxas Foundation, Inc. took full filing of the action
payment of rentals or
control and possession of the subject property, because occupancy is
failure to comply with
developed the same and used it for commercial illegal from the very
the lease contract.
purposes. They have allowed the respondent for beginning. (Riano, 2019)
several years, to make use of the land without

The plaintiff must prove Three Possessory Actions distinguished from

that he was in prior each other
The plaintiff need not
physical possession of
have been in prior
the premises until he ACCION
physical possession. ACCION ACCION
was deprived thereof by REIVINDICA-
INTERDICTAL PUBLICIANA
the defendant. TORIA
GR: The one-year Summary A plenary
period is counted from action for the action for the An action for
Period is counted from
the date of actual entry recovery of recovery of the recovery of
the date of the last
on the land. physical the real right ownership,
demand or last letter of
possession of possession which
demand in case of non-
XPN: When entry is by where the when the necessarily
payment of rentals or
stealth, the period must dispossession dispossessio includes the
violation of the
be counted from the has not lasted n has lasted recovery of
conditions of the lease.
demand to vacate upon for more than 1 for more than possession.
(Riano, 2019)
learning of the stealth. year. 1 year.
(Riano, 2019) This action
must be filed
Mandatory Allegations more than 1
year after but
The rule is that the allegations in the complaint within 10
determine both the nature of the action and the This action years from
jurisdiction of the court. The cause of action in a must be filed dispossessio This action is
complaint is what the allegations in the body of the within 1 year n since Art. imprescripti-
complaint define and describe. from 555 of the ble
dispossession. NCC provides
The complaint must specifically allege the facts that the right
constituting unlawful detainer or forcible entry if of possession
the complaint filed was for unlawful detainer, or is lost after
forcible entry, respectively. It cannot be made to the lapse of
depend on the exclusive characterization of the case 10 years.
by one of the parties, jurisdiction cannot be made to RTC has
RTC has
depend upon the defenses set up in the answer, in a All cases of jurisdiction if
jurisdiction if
motion to dismiss or in a motion for forcible entry the value of
the value of the
reconsideration. (Balibago vs. Faith in Christ, GR No. and unlawful the property
property
191527, 22 Aug. 2016) detainer exceeds Php
exceeds Php
irrespective of 400,000.
400,000.
1. DISTINGUISHED FROM ACCION PUBLICIANA the amount of
AND ACCION REIVINDICATORIA damages or MTC has
MTC has
unpaid rentals jurisdiction if
jurisdiction if
Actions available to recover Possession of Real sought to be the value of
the value of the
Property recovered the property
property does
should be does not
not exceed the
1. Accion Interdictal (ejectment); brought to the exceed the
above
2. Accion Publiciana; and MTC. above
amounts.
3. Accion Reinvindicatoria amounts.
Based on the foregoing distinctions, the material

element that determines the proper action to be

2022 GOLDEN NOTES
Remedial Law
filed for the recovery of the possession of the A: YES. In an action for recovery of possession, the
property in this case is the length of time of assessed value of the property sought to be
dispossession. (Encarnacion v. Amigo, G.R. No. recovered determines the court's jurisdiction.
169793, 15 Sept. 2006) Jurisdiction is conferred by law and is determined
by the allegations in the complaint, which contains
NOTE: The actions of forcible entry and unlawful the concise statement of the ultimate facts of a
detainer are within the exclusive and original plaintiffs cause of action.
jurisdiction of the MTC, MeTC and MCTC (Sec. 33(2),
BP 129; RA 7691) and shall be governed by the rules Petitioners’ failure to allege in their complaint the
on summary procedure irrespective of the amount assessed value of the subject property would equate
of damages or rental sought to be recovered (Sec. 3, to failure to establish that the RTC had jurisdiction
Rule 70, ROC, as amended). over it. In fact, it cannot be determined which trial
court had original and exclusive jurisdiction over
Rule that should govern the Proceedings of the case. (Heirs of Telesforo Julao v. Sps. Alejandro
Accion Interdictal and Morenita De Jesus, G.R. No. 76020, 29 Sept. 2014)
GR: Ejectment cases are summary proceedings NOTE: The amount of rents and damages claimed
intended to provide an expeditious means of does not affect jurisdiction of the MTCs because the
protecting actual possession or right to possession same are only incidental or accessory to the main
of property. action. (Lao Seng Hian v. Lopez, G.R. No. L-1950, 16
May 1949)
XPN: When the decision of the MTC is appealed to
the RTC, the applicable rules are those of the latter If only rents or damages are claimed in an ordinary
court. (Refugia v. CA, G.R. No. 118284, 5 July 1996) action, the action is personal and the amount
claimed determines whether it falls within the
NOTE: Ejectment suits can be maintained with jurisdiction of the RTC or the MTC.
respect to all kinds of land, but agricultural lands
under tenancy are now subject to the land reform Venue
laws, and cases arising thereunder are within the
jurisdiction of Regional Trial Court acting as Special Forcible entry and unlawful detainer actions are
Agrarian Court. (Regalado, 2017) those affecting possession of real property, hence,
are real actions. The venue of these actions,
Q: Sps. De Jesus filed with the RTC an action for therefore, is the place where the property is
recovery of possession alleging that they are the situated. (Sec. 1, Rule 4, ROC, as amended)
real owners of the said estate evidenced by the
TCTs they were able to present. On the other On the other hand, these actions are not only real
hand, the Heirs of Telesforo through Sps. Julao, actions, they are also in personam because the
argued that they are the lawful heirs of the plaintiff seeks to enforce a personal obligation to
property since they never transferred nor vacate the property subject of the action and restore
conveyed the property to anyone; the claim was physical possession thereof to the plaintiff.
based on an OCT issued by the DENR. The RTC (Domagas v. Jensen, G.R. No. 158407, 17 Jan 2005)
ruled in favor of the Sps. Julao since they were
able to present the proper certificate of titles. On Effect of the pendency of an Action involving
appeal, the CA reversed the ruling and Ownership on an Action for Forcible Entry and
dismissed the complaint stating that the RTC Unlawful Detainer
never acquired jurisdiction in the said case
since the assessed value of the property was It does not bar the filing of an ejectment suit, nor
never mentioned in the complaint. Is the suspend the proceedings of one already instituted.
decision of the CA proper? The underlying reason for this rule is to prevent the

defendant from trifling with the summary nature of Lessor to proceed against Lessee only after
an ejectment suit by the simple expedient of Demand
asserting ownership over the disputed property.
(Tecson v. Gutierrez, G.R. No. 152978, 4 Mar. 2005) Unless otherwise stipulated, such action by the
lessor shall be commenced only after demand to pay
Judgment conclusive only on Possession or comply with the conditions of the lease and to
vacate is made upon the lessee, or by serving
Where the issue of ownership is raised by any of the written notice of such demand upon the person
parties, the courts may pass upon the same in order found on the premises if no person be found
to determine who has the right to possess the thereon, and the lessee fails to comply therewith
property. However, the adjudication is only after 15 days in the case of land or 5 days in the case
provisional and will not bar or prejudice an action of buildings. (Sec. 2, Rule 70, ROC, as amended)
between the same parties involving title to the
property. (Esmaquel v. Coprada, G.R. No. 152423, 15 When right to commence the Action arises
Dec. 2010)
The action shall commence if the lessee fails to
JURISDICTION IN ACCION PUBLICIANA AND comply with the requisite demand after 15 days in
ACCION REIVINDICATORIA case of land or 5 days in case of buildings. (Sec. 2,
The court that has jurisdiction over the action
depends on the assessed value of the property. PLEADINGS ALLOWED
1. RTC has jurisdiction if the value of the The only pleadings allowed to be filed are: (3C-A)
property exceeds P400,000.
2. MTC has jurisdiction if the value of the 1. Complaint;
property does not exceed the above amounts. 2. Compulsory counterclaim;
3. Crossclaim pleaded in the answer; and
2. RULE 70 4. Answer (Sec. 4, Rule 70, ROC, as amended)
WHO MAY INSTITUTE THE ACTION AND WHEN; All pleadings shall be verified. (Ibid.)
AGAINST WHOM THE ACTION MAY BE
MAINTAINED NOTE: Within 10 days from service of summons, the
defendant shall file his answer to the complaint and
Who may institute the Action serve a copy thereof on the plaintiff. Affirmative and
negative defenses not pleaded therein shall be
1. A person deprived of the possession of any deemed waived, except lack of jurisdiction over the
land or building by force, intimidation, threat, subject matter. Crossclaims and compulsory
strategy, or stealth, or a lessor, vendor, vendee; counterclaims not asserted in the answer shall be
or considered barred. The answer to counterclaims or
crossclaims shall be served and filed within 10 days
2. Other persons against whom the possession of from service of the answer in which they are
any land or building is unlawfully withheld pleaded. (Sec. 6, Rule 70, ROC, as amended)
after the expiration or termination of the right
to hold possession, by virtue of any contract, Q: Aries filed an unlawful detainer case against
express or implied, or the legal representatives Patrick before the appropriate MTC. In his
or assigns of any such lessor, vendor, vendee, answer, Patrick avers as a special and
or other person. (Sec. 1, Rule 70, ROC, as affirmative defense that he is a tenant of Aries’
amended) deceased father in whose name the property

2022 GOLDEN NOTES
Remedial Law
remains registered. What should the court do? gives rise to an action for unlawful detainer. (Riano,
Explain briefly. (2007 BAR) 2019)
A: The court should hold a preliminary conference What constitutes a Demand in Unlawful
not later than 30 days after the defendant’s answer Detainer
was filed, since the case is governed by summary
procedure under Rule 70 of the Rules of Court, 1. To pay and to vacate – If the suit is based on
where a reply is not allowed. The court should defendant’s failure to pay the rentals agreed
receive evidence to determine the allegations of upon; or
tenancy. If tenancy had in fact been shown to be the 2. To comply and to vacate – If suit is predicated
real issue, the court should dismiss the case for lack upon the defendant’s non-compliance with the
of jurisdiction. conditions of the lease contract. (Riano, 2019)
If it would appear that Patrick’s occupancy of the The reckoning point for determining the one-year
subject property was one of agricultural tenancy, period within which to file the action is the receipt
which is governed by agrarian laws, the court of the last demand to vacate and pay. (Sec. 2, Rule 70,
should dismiss the case because it has no ROC, as amended) (2014 BAR)
jurisdiction over agricultural tenancy cases.
Patrick’s allegation that he is a “tenant” of plaintiff’s NOTE: The notice giving the lessee the alternative
deceased father suggests that the case is one of either to pay the increased rental or otherwise
landlord-tenant relation and therefore, not within vacate the land is not the demand contemplated by
the jurisdiction of ordinary courts. the Rules of Court in unlawful detainer cases. When
after such notice, the lessee elects to stay, he
Action on the Complaint thereby merely assumes the new rental and cannot
be ejected until he defaults in said obligation and
The court may, from an examination of the necessary demand is first made. (Peñas, Jr. v. Court
allegations in the complaint and such evidence as of Appeals, G.R. No. 112734, 7 July 1994)
may be attached thereto, dismiss the case outright
on any of the grounds for the dismissal of a civil Form of Demand
action which are apparent therein. If no ground for
dismissal is found, it shall forthwith issue summons. The demand may be in the form of a written notice
(Sec. 5, Rule 70, ROC, as amended) served upon the person found in the premises. The
demand may also be made by posting a written
When Demand is necessary notice on the premises if no person can be found
thereon. (Sec. 2, Rule 70, ROC, as amended)
Unless there exists a stipulation to the contrary, an
unlawful detainer case shall be commenced only It has been ruled, however, that the demand upon a
after the demand to pay or comply with the tenant may be oral. (Jakihaca v. Aquino, G.R. No.
conditions of the lease and to vacate is made upon 83982, 12 Jan. 1990) Since, the demand is not
the lessee. (Sec. 2, Rule 70, ROC, as amended) written, sufficient evidence must be adduced to
show that there was indeed a demand like
The requirement for a demand implies that the testimonies from disinterested and unbiased
mere failure of the occupant to pay rentals or his witnesses. (Riano, 2019)
failure to comply with the conditions of the lease
does not ipso facto render his possession of the Prior Demand in Unlawful Detainer not
premises unlawful. It is the demand to vacate the required (T-R-I-D)
premises and the refusal to do so which make
unlawful the withholding of the possession and 1. Where the purpose of the action is to Terminate
the lease by reason of expiry of its term;

2. Where the purpose of the suit is not for 2. The lessor has not given the lessee a notice to
ejectment but for the Reinforcement of the vacate; and
terms of the contract; or 3. The lessee continued enjoying the thing leased
3. When the defendant is not a tenant but a mere for fifteen days with the acquiescence of the
Intruder; or lessor (Riano, 2019).
4. When there is stipulation Dispensing with a
demand. (Art. 1169, NCC; Sec. 2, Rule 70, ROC, as Q: Chua leased a portion of his commercial
amended) building to petitioner Joven Yuki, Jr. Thereafter,
the lease was renewed through a series of verbal
Q: Ben sold a parcel of land to Del with right to and written agreements, the last of which was a
repurchase within 1 year. Ben remained in written Contract of Lease covering the period of
possession of the property. When Ben failed to one year. Later on, Chua informed Yuki that he
repurchase the same, title was consolidated in sold the property to Wellington Co. and
favor of Del. Despite demand, Ben refused to instructed petitioner to thenceforth pay the rent
vacate the land, constraining Del to file a to the new owner. After the expiration of the
complaint for unlawful detainer. In his defense, lease contract, petitioner refused to vacate and
Ben averred that the case should be dismissed surrender the leased premises. Thus,
because Del had never been in possession of the Wellington Co. filed a Complaint for unlawful
property. Is Ben correct? (2008 BAR) detainer before the MeTC of Manila. The MeTC
ruled in favor of Wellington Co saying that there
A: NO. In an action for unlawful detainer, it is not was no implied new lease created when
required that the plaintiff be in prior physical Wellington accepted the rentals made by Yuki.
possession of the land subject of the action. In this On appeal, RTC reversed the ruling of the MeTC
action by the vendee a retro against a vendor a retro finding no proof that the petitioner actually
who refused to vacate the property even after title received the notice to vacate. Can the implied
has been consolidated in the vendee, the latter, in new lease divest the MeTC of jurisdiction over
contemplation of law, steps into the shoes of the the case?
vendor and succeeds to his rights and interest.
(Pharma Industries Inc. v. Hon. Pajarillaga, G.R. No. A: NO. The existence of implied new lease or tacita
L-53788, 17 Oct. 1980) reconduccion based on the allegations in the
complaint will not divest the MeTC of jurisdiction
Rule in case of Tacita Reconduccion in relation to over the ejectment case. The allegations pleaded in
Unlawful Detainer the complaint and not the defenses set up in the
answer or pleadings filed by the defendant which
Under Art. 1670 of NCC, if at the end of lease, the determines jurisdiction of the court over ejectment
lessee continues to enjoy the property leased for 15 cases. This principle holds even if the facts proved
days with consent of the lessor, and no notice to the during trial do not support the cause of action
contrary has been given, it is understood that there alleged in the complaint. Here, the Complaint
is an implied new lease. sufficiently alleged the elements to be proved and
resolved in an unlawful detainer case i.e. the facts of
When there is tacita reconduccion, the lessee cannot lease and expiration or violation of its terms. (Joven
be deemed as unlawfully withholding the property. Yuki, Jr. v. Wellington Co, G.R. No. 178527, 27 Nov.
There is no unlawful detainer. (Riano, 2019) 2009)
An implied new lease or tacita reconduccion will set Q: The spouses Juan reside in Quezon City. With
in if it is shown that: their lottery winnings, they purchased a parcel
of land in Tagaytay City for P100,000.00. In a
1. The term of the original contract of lease has recent trip to their Tagaytay property, they were
expired; surprised to see hastily assembled shelters of

2022 GOLDEN NOTES
Remedial Law
light materials occupied by several families of complaint for ejectment before the MTC of Tagaytay
informal settlers who were not there when they City where the property is located since ejectment
last visited the property three (3) months ago. suit is a real action regardless of the value of the
To rid the spouses’ Tagaytay property of these property to be recovered or claim for unpaid
informal settlers, briefly discuss the legal rentals. (B.P. No. 129 and Sec. 1, Rule 4, ROC, as
remedy you, as their counsel, would use; the amended)
steps you would take; the court where you
would file your remedy if the need arises; and In the aforementioned complaint, I will allege that
the reason/s for your actions. (2013 BAR) Spouses Juan had prior physical possession and that
the dispossession was due to force, intimidation and
A: As counsel of spouses Juan, I will file a special civil stealth. The complaint will likewise show that the
action for Forcible Entry. The Rules of Court action was commenced within a period of one (1)
provides that a person deprived of the possession of year from unlawful deprivation of possession, and
any land or building by force, intimidation, threat, that Spouses Juan is entitled to restitution of
strategy or stealth may at any time within (one) 1 possession together with damages and costs.
year after such withholding of possession bring an
action in the proper Municipal Trial Court where the PRELIMINARY INJUNCTION AND
property is located. This action which is summary in PRELIMINARY MANDATORY INJUNCTION
nature seeks to recover the possession of the
property from the defendant which was illegally Remedy of the Plaintiff in order to obtain
withheld by the latter. (Sec. 1, Rule 70, ROC, as Possession of the Premises during the Pendency
amended) of an Action
An ejectment case is designed to restore, through The plaintiff may, within 5 days from filing of the
summary proceedings, the physical possession of complaint file a motion in the same action for the
any land or building to one who has been illegally issuance of a writ of preliminary mandatory
deprived of such possession, without prejudice to injunction to restore him his possession. This
the settlement of the parties’ opposing claims of motion shall be resolved within 30 days from its
juridical possession in appropriate proceedings. filing. (Sec. 15, Rule 70, ROC, as amended; Riano,
(Heirs of Agapatio T. Olarte and Angela A. Olarte et 2019)
al. v. Office of the President of the Philippines et al.,
G.R. No. 177995, 15 June 2011) Grant of Injunction while the case is pending
In Abad v. Farrales, (G.R. No. 178635, 11 Apr. 2011), The court may grant preliminary injunction, in
the Supreme Court held that two allegations are accordance with the provisions of Rule 58
indispensable in actions for forcible entry to enable (Preliminary Injunction), to prevent the defendant
first level courts to acquire jurisdiction over them: from committing further acts of dispossession
first, that the plaintiff had prior physical possession against the plaintiff.
of the property; and, second, that the defendant
deprived him of such possession by means of force, A possessor deprived of his possession through
intimidation, threats, strategy, or stealth. forcible entry or unlawful detainer may, within 5
days from the filing of the complaint, present a
However, before instituting the said action, I will motion in the action for forcible entry or unlawful
first endeavor to amicably settle the controversy detainer for the issuance of a writ of preliminary
with the informal settlers before the appropriate mandatory injunction to restore him in his
Lupon or Barangay Chairman. If there is no possession. The court shall decide the motion
agreement reached after mediation and conciliation within 30 days from the filing thereof. (Sec. 15, Rule
under the Katarungang Pambarangay Law, I will 70, ROC, as amended)
secure a certificate to file action and file the

NOTE: If judgment is appealed to the Regional Trial NOTE: The assertion by the defendant of ownership
Court, said court may issue a writ of preliminary over the disputed property does not serve to divest
mandatory injunction to restore the plaintiff in the inferior court of its jurisdiction. The defendant
possession if the court is satisfied that the cannot deprive the court of jurisdiction by merely
defendant's appeal is frivolous or dilatory or that claiming ownership of the property involved. (Rural
the appeal of the plaintiff is prima facie meritorious. Bank of Sta. Ignacia v. Dimatulac, G.R. No. 142015, 29
(Sec. 20, Rule 70, ROC, as amended) Apr. 2003; Perez v. Cruz, G.R. No. 142503, 20 June
2003)
Determination of the Issue of Ownership in
Forcible Entry and Unlawful Detainer cases Binding of Judgment
In cases where the defendant raises the question of GR: Judgment in an ejectment case is binding only
ownership in the pleadings and the question of upon the parties properly impleaded and given an
possession cannot be resolved without deciding the opportunity to be heard.
issue of ownership, the court may proceed and
resolve the issue of ownership but only for the XPNs: It becomes binding on anyone who has not
purpose of determining the issue of possession. been impleaded in certain instances as in the
However, the disposition of the issue of ownership following:
is not final as it may be the subject of separate
proceeding specifically brought to settle the issue. 1. A sublessee is bound by the judgment against
(De la Rosa v. Roldan, G.R. No. 133882, 5 Sept. 2006) the lessee because his right to the premises is
merely subsidiary to that of the lessee;
NOTE: The only issue involved in ejectment
proceedings is as to who is entitled to the physical 2. A guest or a successor in interest, the members
or material possession of the premises, that is, of the family of the lessee or his servants and
possession de facto and not possession de jure. employees are likewise bound by the judgment
(Juanita Ermitaño, represented by her attorney-in- even if not impleaded in the suit for ejectment;
fact, Isabelo Ermitaño v. Paglas, G.R. No. 174436, 13
Jan. 2013; Regalado, 2017) 3. Trespassers, squatters or agents of the
defendant fraudulently occupying the property
The issue of ownership shall be resolved only to to frustrate the judgment; and
determine the issue of possession. Allegations of
ownership is not material in ejectment cases. 4. Transferees pendente lite and other privies of
Evidence of ownership will be allowed only for the the defendant. (Riano, 2019)
court to determine the character and extent of
possession. NOTE: The plaintiff, in ejectment cases, is entitled to
damages caused by his loss of the use and
Judgment in Forcible Entry and Unlawful possession of the premises, but not for damages
Detainer cases NOT conclusive as to the Title to caused on the land or building, which latter items of
the Property damages should be recovered by plaintiff, if he is the
owner, in an ordinary action. (Santos v. Santiago,
The judgment rendered in an action for forcible G.R. No. 12208, 09 Sept. 1918)
entry or detainer is conclusive only as to possession
of the property. Said judgment does not bind the However, it has been held that plaintiff can recover
title or affect the ownership of the land or building. from defendant liquidated damages stipulated in
A distinct and separate action between the same the lease contract. (Gozon v. Vda. De Barrameda, G.R.
parties respecting title to the land or building may No. 17473, 30 June 1964)
be had. (Sec. 18, Rule 70; Lim v. Spouses Ligon, G.R.
No. 183589, 25 June 2014)

2022 GOLDEN NOTES
Remedial Law
Q: Teresita is the absolute owner of a parcel of 2. File a supersedeas bond to pay for the rents,
land. Lucia, on the other hand, claims that she damages and costs accruing down to the time of
and her husband entered the subject land with the judgment appealed from; and
the consent and permission of Teresita’s 3. Deposit periodically with the RTC, during the
predecessors-in-interest under the agreement pendency of the appeal, the adjudged amount of
that they would devote the property to rent due under the contract or if there be no
agricultural production and share the produce contract, the reasonable value of the use and
with Teresita’s predecessors-in-interest. occupation of the premises. (Sec. 19, Rule 70,
Teresita filed a Complaint for Unlawful Detainer ROC, as amended)
against Lucia for refusal to vacate the land
despite several demands. Is Teresita entitled to NOTE: The order for the issuance of a writ of
damages? execution to immediately enforce the judgment of
the inferior court is interlocutory and not
A: NO. The only damage that can be recovered by appealable. Immediate execution is proper if the
Teresita is the fair rental value or the reasonable judgment is in favor of the plaintiff.
compensation for the use and occupation of the
leased property. The reason for this is that in If the judgment is in favor of the defendant with an
forcible entry or unlawful detainer cases, the only award for damages under his counterclaims, such
issue raised in ejectment cases is that of rightful judgment is not immediately executory and can
possession; hence, the damages which could be be executed only after the lapse of the 15-day period
recovered are those which the Teresita could have to appeal without the plaintiff having perfected his.
sustained as a mere possessor, or those caused by (Regalado, 2017)
the loss of the use and occupation of the property,
and not the damages which she may have suffered EXECUTION EXECUTION
but which have no direct relation to her loss of PENDING APPEAL PENDING APPEAL
material possession. (Rodriguez v. Salvador, G.R. No. UNDER RULE 39, UNDER RULE 70,
171972, 8 June 2011) SECTION 2 SECTION 19
Applies in actions for
Applies in ordinary
HOW TO STAY THE IMMEDIATE unlawful detainer and
civil actions.
EXECUTION OF JUDGMENT forcible entry.
Discretionary upon the Ministerial on the part
As a rule, judgment of the MTC against the trial court. of the trial court.
defendant in ejectment proceedings is immediately Upon the non-
executory. The rule on immediate execution is compliance of the
applicable only if the decision is against the defendant on the three
defendant and not if it is against the plaintiff. The prevailing party
requisites of perfection
must file a motion to
of appeal, bond and
A judgment on forcible entry and detainer case is execute the judgement
deposit, the judgement
immediately executory to avoid injustice to a pending appeal.
automatically
lawful possessor, and the court’s duty to order the executed pending
execution is practically ministerial (Riano, 2019). appeal.
The prevailing party
In case the judgment is against the defendant, and in must prove good
order to stay the immediate execution of judgment, Proof of good cause or
reasons for the court to
the defendant must take the following steps: reason is not required.
grant execution
pending appeal.
1. Perfect an appeal (in the same manner as in
ordinary civil actions, Rule 40);

Supersedeas Bond that although the transfers from Agnes to

Priscilla were identified as absolute sales, the
The bond shall answer for the rents, damages and contracts are deemed equitable mortgages. The
costs accruing down to the time of judgement of the CA Decision became final and executory. Due to
inferior court appealed from. The filing of such bond the failure or refusal of Sps. Rosario to satisfy
is mandatory to stay the judgement of the MTC. their outstanding obligation, Priscilla filed a
Complaint for Judicial Foreclosure of Real Estate
NOTE: Attorney’s fees shall not be covered by the Mortgage. May the Sps. Rosario, in the instant
supersedeas bond. petition, question the legal personality of
Priscilla to foreclose the subject property and
Supersedeas Bond NOT required claim that the loan obligation has no legal and
factual bases?
1. Monetary award in the judgment of the inferior
court has been deposited with the court; or A: NO. There is conclusiveness of judgment as to the
2. Judgment of the lower court did not make issues pertaining to the existence of the loan and the
findings with respect to any amount in arrears, legal personality of Priscilla to file a case for judicial
damages, or costs against the defendant. foreclosure in accordance with the November 15,
2006 Decision. As such, the factual findings and
A supersedeas bond is necessary to prevent conclusions in said Decision may no longer be
immediate execution only if the judgment awarded disputed by Sps. Rosario as res judicata by
rents, damages, and costs. Where the judgment only conclusiveness of judgment, which bars them from
ordered the defendant to vacate and to pay challenging the same issues. The said Decision of the
attorney’s fees, a supersedeas bond is not required CA, from which this case arose, has attained finality
to cover attorney’s fees. (Once v. Gonzalez, G.R. No. L- due to the failure of the parties to file a motion for
44806, 31 Mar. 1977) (2017 BAR) reconsideration or an appeal. The elements of res
judicata by conclusiveness of judgment are present:
Rules of Res Judicata and Conclusiveness of first, the November 15, 2006 Decision has attained
Judgment apply in Ejectment case finality; second, the said decision was rendered by a
court having jurisdiction over the subject matter and
But subject to the qualification that judgment is the parties; third, the said decision disposed of the
conclusive with respect to the right of possession case on the merits; and fourth, there is, as between
under and by virtue of a contract the existence of the previous case and the instant case, an identity of
which has been proved in said ejectment suit. parties. (Sps. Rosario v. Alvar, G.R. No. 212731, 6 Sept.
(Penas v. Tuason, G.R. No. L-3404, 02 Apr. 1951) 2017)
Q: After the real estate mortgages over two PROHIBITED PLEADINGS AND MOTIONS
parcels of land over the property of Sps. Rosario
in favor of Priscilla were discharged, Agnes 1. Motion to dismiss the complaint except on the
Rosario sold the same lots in favor of Priscilla's ground of lack of jurisdiction over the subject
daughter, Evangeline but the latter later sold the matter, or failure to comply with a referral to
lots to Priscilla for the same price. When the Lupon Tagapamayapa in cases covered by
Priscilla sought the spouses to vacate the lot, the LGC;
Sps. Rosario instead filed a Complaint for 2. Motion for a bill of particulars;
Declaration of Nullity of Contract of Sale and 3. Motion for new trial, or for reconsideration of a
Mortgage. Priscilla, in turn, filed a Complaint for judgment, or for reopening of trial;
Recovery of Possession. The cases were 4. Petition for relief from judgment;
consolidated and the RTC ruled in favor of 5. Motion for extension of time to file pleadings,
Priscilla. On appeal, the CA reversed the affidavits or any other paper;
Decision of the RTC. In its Decision, the CA ruled 6. Memoranda;

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7. Petition for certiorari, mandamus, or Nature of Contempt Power

prohibition against any interlocutory order
issued by the court; The power to punish for contempt is inherent in all
8. Motion to declare the defendant in default; courts; its existence is essential to the preservation
9. Dilatory motions for postponement; of order in judicial proceedings and to the
10. Reply; enforcement of judgments, orders and mandates of
11. Third-party complaints; and the courts, and, consequently, to the due
12. Interventions. (Sec. 13, Rule 70, ROC, as administration of justice.
amended)
It is settled that the power is to be exercised with
the end in view of utilizing the same for correction
J. CONTEMPT (RULE 71) and preservation of the dignity of the court, and not
for retaliation or vindictiveness. It is to be exercised
on the preservative, not vindictive principle, and on
the corrective and not retaliatory idea of
It is disobedience to the court by acting in
punishment. (Laurel v. Francisco, A.M. No. RTJ-06-
opposition to its authority, justice and dignity. It
1992, 06 July 2010)
signifies not only willful disregard or disobedience
of court’s orders, but such conduct as tends to bring
Q: A TRO was filed by Custodio against Bro.
the authority of court and administration of law into
Bernardo Oca, et al. in the RTC to prevent
disrepute or in some manner to impede the due
another trustee from calling a special
administration of justice. (Regalado v. Go, G.R. No.
membership meeting in order to remove the
167988, 6 Feb. 2007; Riano, 2019))
complainant from the Board of Trustees. The
case was dismissed, and the petitioner was
KINDS OF CONTEMPT
subsequently removed from the Board of
Trustees and as Curriculum Administrator.
1. As to nature (depending on the nature and
Eventually, a complaint for contempt of court
effect of the contemptuous act):
was filed by the original complainant against the
adverse parties for their alleged willful
a. Civil
disobedience to the various orders of the trial
b. Criminal
court. Are the parties guilty of contempt of
court?
2. As to the manner of commission:
A: YES. The purpose of the filing and the nature of

a. Direct
the contempt proceeding show that the original
b. Indirect
complainant was seeking enforcement of the trial
court orders in the intra-corporate controversy
PURPOSE AND NATURE OF EACH
because the adverse parties refused to comply.
Hence, this is a civil contempt case, which does not
Functions of Contempt Proceedings
need proof beyond reasonable doubt. This Court has
ruled that while the power to cite parties in
1. Vindication of public interest by punishment of
contempt should be used sparingly, it should be
contemptuous conduct; and
allowed to exercise its power of contempt to
2. Coercion to compel the contemnor to do what
maintain the respect due to it and to ensure the
the law requires him to uphold the power of the
infallibility of justice where the defiance is so clear
court, and also to secure the rights of the parties
and contumacious and there is an evident refusal to
to a suit awarded by the court.
obey. (Oca v. Custodio, G.R. No. 199825, 26 July 2017)

Criminal Contempt vs. Civil Contempt
CRIMINAL CONTEMPT CIVIL CONTEMPT

It is the failure to do something ordered to be done by
It is a conduct directed against the authority and a court or a judge for the benefit of the opposing party
dignity of the court or a judge acting judicially; it is a therein and is therefore, an offense against the party
conduct obstructing the administration of justice in whose behalf the violated order was made.
which tends to bring the court into disrepute or (Castillejos Consumers Association, Inc. v. Domingues,
disrespect. (Castillejos Consumers Association, Inc. v. G.R. No. 189949, 25 Mar. 2015; Riano, 2019)
Domingues, G.R. No. 189949, 25 Mar. 2015; Riano,
2019) NOTE: If the purpose is to punish, it is criminal in
nature but if to compensate, then it is civil.
Purpose is to provide a remedy for an injured suitor
Purpose is to vindicate the authority of the court and
and to coerce compliance with an order for the
protect its outraged dignity.
preservation of the rights of private persons
Intent is necessary. Intent is not necessary.
Instituted by the aggrieved party or his successor or
State is the real prosecutor. someone who has pecuniary interest in the right to be
protected.
Proof required is more than mere preponderance of
Proof required is proof beyond reasonable doubt.
evidence.
If accused is acquitted, there can be no appeal. If judgment is for respondent, there can be an appeal.
Direct Contempt vs. Indirect Contempt
DIRECT CONTEMPT INDIRECT CONTEMPT

Definition
Committed by a person who does the following acts:
A person guilty of misbehavior in the presence of or so

1. Disobedience or resistance to a lawful writ,
near a court as to obstruct or interrupt the
process, order or judgment of a court;
proceedings before the same, including disrespect
2. Any abuse of or any unlawful interference with
toward the court, offensive personalities toward
the processes or proceedings of a court not
others, or refusal to be sworn or to answer as a
constituting direct contempt; and
witness, or to subscribe an affidavit or deposition
3. Any improper conduct tending, directly or
when lawfully required to do so. (Sec. 1, Rule 71, ROC,
indirectly, to impede, obstruct or degrade the
as amended)
administration of justice. (Siy vs. NLRC, G.R. No.
158971, 25 Aug. 2005)
Location
Committed in the presence of or so near a court. Not committed in the presence of the court.
Nature of proceeding
Summary in nature Punished after being charged and heard
How done
Contempt in facie curiae Constructive contempt
Grounds
1. Misbehavior in the presence of or so near a court 1. Misbehavior of an officer of a court in the
as to obstruct or interrupt the proceedings; performance of his official duties or in his official
2. Disrespect towards the court; transactions;

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3. Offensive personalities toward others; or 2. Abuse or any unlawful interference with the
4. Refusal to be sworn or to answer as a witness, or proceedings not constituting direct contempt;
to subscribe an affidavit or deposition when 3. Disobedience of or resistance to a lawful writ,
lawfully required to do so. (Sec. 1, Rule 71, ROC, as process, order, or judgment of a court or
amended) unauthorized intrusion to any real property after
being ejected;
4. Failure to obey a subpoena duly served;
5. Assuming to be an attorney or an officer of the
court without authority;
6. Rescue or attempted rescue, of a person or
property in the custody of an officer;
7. Any improper conduct tending to degrade the
administration of justice. (Sec. 3, Rule 71, ROC, as
amended)
Penalty
The penalty for direct contempt depends upon the The punishment for indirect contempt depends
court to which the act was committed: upon the level of the court against which the act was
committed:
1. If the act constituting direct contempt was
committed against an RTC or a court of 1. Where the act was committed against an RTC
equivalent or higher rank, the penalty is a fine or a court of equivalent or higher rank, he may
not exceeding 2,000 pesos or imprisonment not be punished by a fine not exceeding P30,000 or
exceeding 10 days, or both; imprisonment not exceeding 6 months, or both;
2. Where the act was committed against a lower
2. If the act constituting direct contempt was court, he may be punished by a fine not
committed against a lower court, the penalty is a exceeding 5,000 pesos or imprisonment not
fine not exceeding 200 pesos or imprisonment exceeding one month, or both. Aside from the
not exceeding 1 day, or both (Sec. 1, Rule 71, ROC, applicable penalties, if the contempt consists in
as amended); the violation of a writ of injunction, TRO or
3. If the contempt consists in the refusal or status quo order, he may also be ordered to
omission to do an act which is yet within the make complete restitution to the party injured
power of the respondent to perform, he may be by such violation of the property involved or
imprisoned by order of the court concerned until such amount as may be alleged and proved
he performs it. (Sec. 7, Rule 71, ROC, as amended);
3. Where the act was committed against a person
or entity exercising quasi-judicial functions, the
penalty imposed shall depend upon the
provisions of the law which authorizes a
penalty for contempt against such persons or
entities.
Remedy
The person adjudged in direct contempt by any court Appeal (by notice of appeal)
may not appeal therefrom, but may avail himself of the
remedies of special civil action of certiorari or The person adjudged in indirect contempt may
prohibition directed against the court, which adjudged appeal from the judgment or final order of the court
him in direct contempt. (Sec. 2, Rule 71, ROC, as in the same manner as in criminal cases. The appeal
amended) will not however have the effect of suspending the
judgment if the person adjudged in contempt does
Pending the resolution of the petition for certiorari or not file a bond in an amount fixed by the court from

prohibition, the execution of the judgment shall be which the appeal is taken. This bond is conditioned
suspended, provided such person files a bond fixed by upon his performance of the judgment or final order
the court which rendered the judgment and if the appeal is decided against him. (Sec. 11, Rule 71,
conditioned that he will abide by and perform the ROC, as amended)
judgment should the petition be decided against him.
(Sec. 2, Rule 7, ROC, as amended; Canada v. Suerte, A.M.
No. RTJ-04-1884, 22 Feb. 2008)
Commencement of Contempt Proceeding
1. May be initiated motu proprio by the court
against which the contempt was committed by
order or other formal charge by the court
requiring the respondent to show cause why he
should not be punished for contempt; or
NOTE: This procedure applies only when the

indirect contempt is committed against a court of
judge possessed and clothed with contempt
powers.
No formal proceeding is required to cite a person in
direct contempt. The court against which the 2. By a verified petition with supporting particulars
contempt is directed may summarily adjudge a person and certified true copies of the necessary
in direct contempt. (Sec. 1 Rule 71, ROC, as amended; documents and papers (independent action;
Encinas v. National Bookstore Inc., G.R. No. 162704, July must comply with requirements of an initiatory
28, 2005) pleadings). (Sec. 4, Rule 71, ROC, as amended)
NOTE: If the contempt charges arose out of or

are related to a principal action pending in the
court, the petition for contempt shall allege that
fact but said petition shall be docketed, heard
and decided separately, unless the court in its
discretion orders the consolidation of the
contempt charge and the principal action for
joint hearing and decision. (Sec. 4, Rule 71, ROC,
as amended)
Court that has Jurisdiction

3. Where the act was committed against persons
1. Where the act was committed against a RTC or or entities exercising quasi-judicial functions,
a court of equivalent or higher rank, or against the charge shall be filed in RTC of the place
an officer appointed by it, the charge may be wherein the contempt was committed. (Sec. 12,
filed with such court; Rule 71 ROC, as amended; Riano, 2019)
2. Where the act was committed against a lower Q: May a non-party be held for contempt?
court, the charge may be filed with the RTC in
which the lower court is sitting. It may also be A: GR: NO.
filed in lower court against which the contempt
was allegedly committed. The decision of the
lower court is subject to appeal to RTC;

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XPN: If he or she is guilty of conspiracy with any one A: No, Jeff may not be liable for contempt. Under the
of the parties in violating the court’s orders. (Desa Rule on Preliminary Injunction, a TRO is effective
Ent., Inc. v. SEC, G.R. No. L-45430, 30 Sept. 1982) only for a period of 20 days from service on the
person sought to be enjoined. It is deemed
Q: Ray, through Atty. Velasco, filed a complaint automatically vacated if the application for
for quieting of title against Chiz. Chiz, however, preliminary injunction is denied or not resolved
interposed the defense that the documents within the said period and no court shall have the
relied upon by Ray and Atty. Velasco were authority to extend or renew the TRO on the same
forged and falsified. Finding that the said ground for which it was issued. (Sec. 5, Rule 58) Here
documents were indeed forged and falsified, the extension of the TRO by the RTC was invalid
Judge Victoria cited Ray and Atty. Velasco for since it was for the same ground for which the TRO
direct contempt and ordered them to serve 10 was issued. Hence the TRO was deemed
days of detention at the Municipal Jail. Ray and automatically vacated and thus Jeff may not be liable
Atty. Velasco filed a motion for bail and a motion for contempt for ignoring it.
to lift the order of arrest. But they were denied
outright by Judge Victoria. Is Judge Victoria NOTE: A pleading containing derogatory, offensive
correct? or malicious statements submitted before the court
or judge where the proceedings are pending
A: NO. Direct contempt is a contumacious act done constitutes direct contempt.
facie curiae and may be punished summarily
without hearing. Indirect or constructive contempt, It is because the insulting pleading is equivalent to
in turn, is one perpetrated outside of the sitting of misbehavior committed in the presence of or so
the court. near a court or judge as to interrupt the
administration of justice. (Prosecutor Jorge Baculi v.
Here the use of falsified and forged documents is a Judge Belen, A.M. No. RTJ-11-2286, 12 Feb. 2020)
contumacious act. However, it constitutes indirect
contempt not direct contempt. The imputed use of a REMEDY AGAINST DIRECT CONTEMPT;
falsified document, more so where the falsity of the PENALTY
document is not apparent on its face, merely
constitutes indirect contempt, and as such is subject A person adjudged in direct contempt may not
to such defenses as the accused may raise in the appeal therefrom. His remedy is a petition for
proper proceedings. Thus, following Sec. 3, Rule 71, certiorari or prohibition against the court which
a contemnor may be punished only after a charge in adjudged him in direct contempt. (Sec. 2, Rule 71,
writing has been filed, and an opportunity has been ROC, as amended; Riano, 2019)
given to the accused to be heard by himself and
counsel. Pending the resolution of the petition for certiorari
or prohibition, the execution of the judgment for
Q: A temporary restraining order (TRO) was direct contempt shall be suspended. The
issued on September 20, 2017 by the RTC suspension, however, shall take place only if the
against defendant Jeff enjoining him from person adjudged in contempt files a bond fixed by
entering the land of Regan, the plaintiff. On the court which rendered the judgment. This bond
October 9, 2017, upon application of Regan, the is conditioned upon his performance of the
trial court, allegedly in the interest of justice, judgment should the petition be decided against
extended the TRO for another 20 days based on him. (Sec.2, Rule 71, ROC, as amended; Riano, 2019)
the same ground for which the TRO was issued.
On October 15, 2017, Jeff entered the land Q: Lawyer Mendoza, counsel for the accused in a
subject of the TRO. May Jeff be liable for criminal case, was cited for direct contempt by
contempt of court? Why? (2017 BAR) Judge Tagle and was sentenced to 10 days of
imprisonment. Lawyer Mendoza was placed in

prison immediately. Lawyer Mendoza Direct Contempt

manifested his readiness to post a bond and to
appeal the order by certiorari to stay its No formal proceeding is required to cite a person in
execution but Judge Tagle said that the order is direct contempt. The court against which the
immediately executory. Is Judge Tagle correct? contempt is directed may summarily adjudge a
person in direct contempt. (Sec. 1 Rule 71, ROC, as
A: NO. An order of direct contempt is not amended; Encinas v. National Bookstore Inc., G.R. No.
immediately executory or enforceable. The 162704, 28, July 2005)
contemner must be afforded a reasonable remedy
to extricate or purge himself of the contempt. Under Indirect Contempt
Sec. 2, Rule 71, of the Rules of Court, a person
adjudged in direct contempt by any court may not Generally, the procedural requisites before the
appeal therefrom but may avail himself of the accused be punished for indirect contempt are:
remedies of certiorari or prohibition. The execution
of the judgment shall be suspended pending a. Charge in writing;
resolution of such petition, provided such person b. Opportunity for the person charged to appear
files a bond fixed by the court which rendered the and explain his conduct; and
judgment and conditioned that he will abide by and c. Opportunity to be heard by himself or counsel.
perform the judgment should the petition be (Barredo-Fuentes v. Albarracion, A.M. NO. MTJ-
decided against him. (Tiongco v. Judge Salao, A.M. 05-1587; 15 Apr. 2005; Riano, 2019)
No. RTJ-06-2009, 27 July 2006)
Since an indirect contempt charge partakes the
REMEDY AGAINST INDIRECT CONTEMPT; nature of a criminal charge, conviction cannot be
PENALTY had merely on the basis of written pleadings. A
respondent in a contempt charge must be served
Remedy with a copy of the motion/petition. Unlike in civil
actions, the Court does not issue summons on the
A person adjudged in indirect contempt may appeal respondent. While the respondent is not required to
from the judgment or final order of the court in the file a formal answer similar to that in ordinary civil
same manner as in criminal case. The appeal will actions, the court must set the contempt charge for
not, however, have the effect of suspending the hearing on a fixed date and time on which the
judgment if the person adjudged in contempt does respondent must make his appearance to answer
not file a bond in an amount fixed by the court from the charge. (Silverio Sr. v. Silverio Jr., G.R. No. 186589,
which the appeal is taken. This bond is conditioned 18 July 2014)
upon his performance of the judgment or final order
if the appeal is decided against him. (Sec. 11, Rule 71, There are two ways by which a person can be
ROC, as amended; Riano, 2019) charged with indirect contempt, namely:
HOW CONTEMPT PROCEEDINGS ARE 1. The charge is initiated motu proprio by the
COMMENCED court against which the contempt was
committed – it is commenced by an order of the
Due to its primitive aspect, contempt proceeding is same court or any formal charge requiring the
in the nature of a criminal action, hence procedural respondent to show cause why he should not be
and evidentiary rules of criminal action are applied punished for contempt.
as far as practicable. Doubts shall always be
resolved in favor of the person charged with 2. The charge is commenced by filing a verified
contempt. petition by someone other than the court –
this petition shall be accompanied by
supporting particulars and certified true copies

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of documents or papers involved therein. The violated the TRO. The entries in the barangay and
petition shall likewise comply with the police blotters attached to his motion carry little
requirements for the filing of initiatory weight or probative value as they are not conclusive
pleadings for civil actions in the court evidence of the truth thereof but merely of the fact
concerned. (Sec. 4, Rule 71, ROC, as amended) that these entries were made. The pictures
depicting bulldozing activities likewise contained
NOTE: If the contempt charges arose out of or are no indication that they were taken after the Court’s
related to a principal action pending in the court, the issuance of the restraining order. (Luciano Ladano v.
petition for contempt shall allege that fact but such Felino Neri, Edwin Soto, Adan Espanola and Ernesto
petition shall be docketed, heard and decided Blanc G.R. No. 178622, 12 Nov. 2012)
separately, unless the court in its discretion orders
the consolidation of the contempt charge and the ACTS DEEMED PUNISHABLE
principal action for joint hearing and decision. (Sec. AS INDIRECT CONTEMPT
4, Rule 71)
After a charge in writing has been filed, and an
Q: A complaint was filed by Ladano before the opportunity given to the respondent to comment
DARAB against Neri alleging that the latter thereon within such period as may be fixed by the
forcibly entered Ladano’s two-hectare land by court and to be heard by himself or counsel, a
fencing the property and destroying some of the person guilty of any of the following acts may be
trees planted thereon. Ladano prayed that he be punished for indirect contempt:
declared the rightful "occupant/tiller" of the
property, with the right to security of tenure 1. Misbehavior an officer of a court in the
thereon. Later, Ladano filed a Motion for Urgent performance of his official duties or in his
Issuance of Temporary Restraining Order TRO official transactions;
before the Court. He alleged that, despite the
pendency of his appeal, Neri bulldozed the 2. Disobedience of or resistance to a lawful writ,
subject land and destroyed Ladano’s trees. The process, order, or judgment of a court, including
Court granted petitioner’s motion and issued a the act of a person who, after being
TRO. Thereafter, Ladano filed an Urgent Motion dispossessed or ejected from any real property
to Cite Neri in Contempt of Court. He alleged that by the judgment or process of any court of
Neri defied the Courts TRO by bulldozing the competent jurisdiction, enters or attempts or
subject property. Neri denied the allegations. He induces another to enter into or upon such real
maintained that the pictures attached to property, for the purpose of executing acts of
Ladano’s motion were taken way back in 2003 ownership or possession, or in any manner
and were not truthful representations of the disturbs the possession given to the person
current state of the subject property. Is Neri adjudged to be entitled thereto;
guilty of indirect contempt?
3. Any abuse of or any unlawful interference with
A. NO. A charge for indirect contempt, such as the processes or proceedings of a court not
disobedience to a courts lawful order, is initiated constituting direct contempt under section 1 of
either motu proprio by order of or a formal charge this Rule;
by the offended court, or by a verified petition with
supporting particulars and certified true copies of 4. Any improper conduct tending, directly or
documents or papers involved therein, and upon indirectly, to impede, obstruct, or degrade the
full compliance with the requirements for filing administration of justice;
initiatory pleadings for civil actions in the court
concerned. It cannot be initiated by a mere motion, 5. Assuming to be an attorney or an officer of a
such as the one that petitioner filed. Ladano failed to court, and acting as such without authority;
substantiate his factual allegation that respondents

6. Failure to obey a subpoena duly served; and CONTEMPT AGAINST QUASI-JUDICIAL BODIES
7. The rescue, or attempted rescue, of a person or The rules on contempt apply to contempt
property in the custody of an officer by virtue of committed against persons or entities exercising
an order or process of a court held by him. (Sec. quasi-judicial functions or in case there are rules for
3, Rule 71, ROC, as amended) contempt adopted for such bodies or entities
pursuant to law, Rule 71 shall apply suppletorily.
NOTE: Failure by counsel to inform the court of the
death of his client constitutes indirect contempt Quasi-judicial bodies that have the power to cite
within the purview of Sec. 3, Rule 71, since it persons for indirect contempt can only do so by
constitutes an improper conduct tending to impede initiating them in the proper RTC. It is not within
the administration of justice. their jurisdiction and competence to decide the
indirect contempt cases. The RTC of the place where
NOTE: If a person charged with indirect contempt contempt has been committed shall have
fails to appear on that date after due notice without jurisdiction over the charges for indirect contempt
justifiable reason, the court may order his arrest, that may be filed. (Sec. 12, Rule 71; LBP v. Listana,
just like the accused in a criminal case. The court G.R. No. 152611, 5 Aug. 2003)
does not declare the respondent in default. (Riano,
2019) NOTE: Other acts or violations cannot be punished
as contumacious conduct by administrative or
Sub Judice Rule quasi-judicial entities unless the governing law
specifically defines such.
It restricts comments and disclosures pertaining to
the judicial proceedings in order to avoid Acts or violations may only be deemed
prejudging the issue, influencing the court, or contemptuous if the governing laws specifically
obstructing the administration of justice. defines such violation as a contempt of court or
unequivocally authorizes said official or body to
A violation of this rule may render one liable for punish for contempt providing for at the same time
indirect contempt under Sec. 3 (d) of Rule 71. the penalty.
(Marantan v. Atty. Diokno, et al., G.R. No. 205956, 12
Feb. 2014) Q: Spouses Trinidad filed an action for specific
performance before the HLURB against FAMA.
WHEN IMPRISONMENT SHALL BE IMPOSED After years of litigation, a Decision was issued
finally disposing the case. A writ of execution
When the contempt consists in the refusal or was issued by the HLURB, however, the case still
omission to do an act which is yet in the power of continued and execution was not yet had. This
the respondent to perform, he may be imprisoned prompted spouses Trinidad to file a Petition for
by order of the court concerned until he performs it. Contempt before the Supreme Court, praying
(Sec. 8, Rule 71, ROC, as amended) Indefinite that FAMA be cited for indirect contempt for
incarceration may be resorted to where the delaying the execution of the HLURB Board’s
attendant circumstances are such that the non- April 2, 1997 Decision. Petitioners further pray
compliance with the court order is an utter that the Court order the dismissal of
disregard of the authority of the court which has respondents’ HLURB appeal, which to them is
then no other recourse but to use its coercive unauthorized and prohibited under the HLURB
power. Rules of Procedure. Is Petition for Contempt
filed before the Supreme Court in an HLURB case
proper?

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Remedial Law
A: NO. Petitioners should have sought to cite

respondents in contempt before the HLURB itself,
and not the Supreme Court. Where contempt is
committed against quasi-judicial entities, the filing
of contempt charges in court is observed only when
there is no law granting contempt powers to these
quasi-judicial entities. Executive Order No. 648
(HLURB Charter) and the HLURB Revised Rules of
Procedure respectively granted the HLURB Board
the power to cite and declare any person, entity or
enterprise in direct or indirect contempt. (Spouses
Trinidad v. FAMA Realty Inc., G. R. No. 203336, 06
June 2016)

Special Proceedings and Special Writs
Like civil actions, the rules on special proceedings

V. SPECIAL PROCEEDINGS must be liberally construed in order to promote
their objective of securing a just, speedy, and
inexpensive disposition of every proceeding. (De
Leon & Wilwayco, 2020)
It is a remedy by which a party seeks to establish a
status, a right, or a particular fact. (Sec. 3(c), Rule 1,
NOTE: Nowhere in the Rules of Court does it
ROC, as amended)
categorically say that rules in ordinary actions are
inapplicable or merely suppletory to special
Subject Matter of Special Proceedings (S-E-G-T-
proceedings. Provisions of the Rules of Court
A-R-R-H-H-C-C-C-D-D)
requiring a certification of non-forum shopping for
complaints and initiatory pleadings, a written
1. Settlement of the estate of deceased persons;
explanation for non-personal service and filing, and
2. Escheat;
the payment of filing fees for money claims against
3. Guardianship and custody of children;
an estate would not in any way obstruct probate
4. Trustees;
proceedings. (Sheker v. Estate of Alice Sheker, G.R.
5. Adoption;
No. 157912, 13 Dec. 2007)
6. Rescission and revocation of adoption;
7. Judicial approval of voluntary recognition of
The procedure of appeal in special proceedings
minor natural children;
should follow the procedure of appeal in civil
8. Hospitalization of insane persons;
actions. (De Leon & Wilwayco, 2020)
9. Habeas Corpus;
10. Change of name;
Q: Ernie filed a petition for guardianship over
11. Constitution of family home;’
the person and properties of his father, Ernesto.
12. Cancellation or correction of entries in the civil
Upon receipt of the notice of hearing, Ernesto
registry.
filed an opposition to the petition. Ernie, before
13. Declaration of absence and death; and
the hearing of the petition, filed a motion to
14. Voluntary dissolution of corporations; (Sec. 1,
order Ernesto to submit himself for mental and
physical examination which the court granted.
After Ernie's lawyer completed the presentation
NOTE: The list under Rule 72, Sec. 1 is NOT
of evidence in support of the petition and the
exclusive.
court's ruling on the formal offer of evidence,
Ernesto's lawyer filed a demurrer to evidence.
E.g., petition for liquidation of an insolvent
Ernie's lawyer objected on the ground that a
corporation, corporate rehabilitation, declaration of
demurrer to evidence is not proper in a special
nullity of marriage, protection orders (VAWC),
proceeding. Was Ernie's counsel's objection
arbitration, etc.
proper? (2015 BAR)
As long as the remedy seeks establishment of a

A: NO. Under the Rule on Special Proceedings, in the
right, status, or a particular fact, then such may be
absence of special provisions, the rules provided for
called a special proceeding, regardless of whether it
in ordinary actions, shall be, as far as practicable,
is included in the foregoing enumeration. (De Leon
applicable in special proceedings. Here, there are no
& Wilwayco, 2020)
special provisions on demurrer to evidence in the
rules on guardianship. Hence, the provisions on
Applicability of General Rules
demurrer to evidence in ordinary actions are
applicable to special proceedings. Such application
In the absence of special provisions, the rules
is practicable since it would be a waste of time to
provided for in ordinary actions, shall be, as far as
continue hearing the case if upon the facts and the
practicable, applicable in special proceedings. (Sec.
law, guardianship would not be proper.
2, Rule 72, ROC, as amended) (2008 BAR)

2022 GOLDEN NOTES
Remedial Law
Ordinary Action vs. Special Civil Action vs. Special Proceeding
ORDINARY ACTION SPECIAL CIVIL ACTION SPECIAL PROCEEDING

Applicability
A party sues another for the
enforcement or protection of a Civil action subject to specific A remedy to establish a status, a
right, or prevention or redress of a rules. right, or a particular fact.
wrong.
Parties
GR: May involve only one party, who
usually initiates the proceedings
with a petition, an application, or a
special form of a pleading.
Involves two or more parties –
Involves two or more parties.
plaintiff and defendant.
XPN: For correction or cancellation of
entries under Rule 108, the Local Civil
Registrar should be impleaded as a
respondent.
Governing Law
Governed by special rules,
supplemented by ordinary rules if
Governed by ordinary rules, Ordinary rules apply primarily applicable like rule on payment of
supplemented by special rules. but subject to specific rules. docket fees and the requirement of
certification against forum
shopping.
Who May File
Initiated by a complaint, and Some are initiated by Initiated by a petition and parties
parties respond through an answer complaint, while some are respond through an opposition after
after being served with summons. initiated by petition. notice and publication are made.
Jurisdiction
Heard by courts of general Heard by courts of general Heard by courts of limited
jurisdiction. jurisdiction. jurisdiction.
Issues
Issues or disputes are stated in the Issues or disputes are stated in
Issues are determined by law.
pleadings of the parties. the pleadings of the parties.
Whether Adversarial or Not
Not adversarial except for correction
or cancellation of entries under Rule
Some are adversarial while
Adversarial. 108 (it may be summary or
some are not adversarial.
adversarial depending on what is
sought to be rectified).
Cause of Action
GR: Not based on a cause of action.
Some special civil action does
Based on a cause of action.
not require a cause of action.
XPN: Habeas corpus.

Subject Matters of Special Proceedings
SPECIAL PROCEEDING JURISDICTION VENUE

Rules 73 - 90
RTC – when the gross value of

the estate exceeds ₱300,000 if
outside Metro Manila or if it
exceeds ₱400,000 if within
1. If resident of the Philippines
Metro Manila.
(whether citizen or alien)–
Court of the province/city
MTC – when the gross value of
where the deceased resides at
the estate is ₱300,000 or less if
Settlement of Estate of Deceased the time of death.
outside Metro Manila or
Persons
₱400,000 or less if within Metro
2. If non- resident – Court of any
Manila. (Sec. 3, R.A. No. 7691)
province/city in which he or
she had estate. (Sec. 1, Rule 73,
NOTE: MTC’s jurisdiction is
ROC, as amended)
exclusive of interest, damages
of whatever kind, attorney’s
fees, litigation expenses and
costs. (Sec. 33, ibid)
Rule 91
1. Ordinary escheat proceedings –

RTC
a. If resident– place where the

deceased last resided; or
b. If non-resident – place where
the estate is located. (Sec. 1,
2. Reversion of land to the State

for violation of the Constitution
RTC (Sec. 1, Rule 91, ROC, as – RTC where the land lies in
Escheat
amended) whole or in part. (Sec. 5, Rule 91,
ROC, as amended)
3. Unclaimed deposits (for 10

years) – RTC of the
city/province where the bank is
located.
NOTE: All banks located in one

province where the court is located
may be made party-defendant in an
action.

2022 GOLDEN NOTES
Remedial Law
Rules 92-97; A.M. No. 03-02-05-SC

1. If resident – place where
minor/ incompetent resides.
Family Court – In case of
minors. (Sec. 3, A.M. No. 03-02-
amended; Sec. 3, A.M. No. 03-02-
05-SC)
05-SC ); or
Guardianship
2. If non-resident– place where
RTC – In cases of incompetents
minor/ incompetent has
other than minors. (Sec. 1,
property. (Sec. 1, Rule 92, ROC,
as amended; Sec. 3, A.M. No. 03-
02-05-SC).
Rule 98
RTC –when the gross value of
the estate exceeds Php 300,000
if outside Metro Manila or if it
exceeds ₱400,000 if within
Where the will was allowed or
Metro Manila.
where the property or some portion
Trustees thereof, affected by the trust is
MTC – when the gross value of
situated. (Sec. 1, Rule 98, ROC, as
the estate is ₱300,000 or less if
amended)
outside Metro Manila or
₱400,000 or less if within Metro
Manila. (Sec. 33, B.P. No. 129, as
amended by R.A. No. 7691)
Rule 103
Where petitioner resides for at least
RTC (Sec. 1, Rule 103, ROC, as 3 years prior to the date of filing of
Change of name
amended) the petition. (Sec. 1, in relation to
Sec. 2, Rule 103, ROC, as amended)
Rule 108
Cancellation Where the corresponding civil

RTC (Sec.1, Rule 108, ROC, as
or Correction of Entries in the registry is located. (Sec. 1, in relation
amended)
Civil Registry to Sec. 2, Rule 108, ROC, as amended)
R.A. No. 9048, as amended by R.A. No. 10172

1. Administrative Correction of Local civil registry office where the
Entry/Change of First Name or record being sought to be corrected
Nickname or changed is kept. (Sec. 3, R.A. No.
9048)
2. Correction of date of birth
with regard to the day and Local Civil Registry/Consul In case petitioner has already
month of birth but not the year General (Sec. 3, R.A. No. 9048) migrated to another place in the
of birth country – with the local civil
registrar of the place where the
3. Change of sex of a person interested party is presently
where it is patently clear that residing or domiciled. (Sec. 3, ibid.)
there was a clerical or

typographical error or Citizens of the Philippines who are

mistake in the entry presently residing or domiciled in
foreign countries – with the nearest
4. Clerical or typographical Philippine Consulates. (Sec. 3, ibid.)
errors which can be corrected
by the civil registry (Sec. 9, R.A.
No. 9048, as amended by R.A. No.
10172)
Rule 107
Where the absentee resided before

RTC (Sec. 1, Rule 107, ROC, as
Declaration of absence and death his disappearance. (Sec. 1, Rule 107,
amended)
ROC, as amended)
A.M. No. 02-06-02-SC
Family Court (Sec. 6, A.M. No. Where the adopter resides. (Sec. 6,
Domestic Adoption
02-06-02-SC) A.M. No. 02-06-02-SC)
Family Court (Sec. 20, A.M. No. Where the adoptee resides. (Sec. 20,
Rescission of Adoption
02-06-02-SC) A.M. No. 02-06-02-SC)
Place where the child resides or

Family Court or the Inter- may be found.
Country Adoption Board (Sec.
Inter-country Adoption
28, A.M. No. 02-06-02-SC) It may be filed directly with the
Inter-Country Adoption Board. (Sec.
28, A.M. No. 02-06-02-SC)
A.M. No. 03-04-04-SC
Where petitioner resides or where

Family Court (Sec. 3, A.M. No.
Custody of Minors the minor may be found. (Sec. 3, A.M.
03-04-04-SC)
No. 03-04-04-SC)
Rule 105
Judicial Approval of Voluntary

Family Court (Sec. 1, Rule 105, Where the child resides. (Sec. 1, Rule
Recognition of Minor Natural
ROC, as amended) 105, ROC, as amended)
Children
A.M. No. 02-11-10-SC

Where petitioner or respondent has
been residing for at least 6 months
prior to the date of filing.
Declaration of Nullity of Void
Family Court (Sec. 3[b], A.M. No.
Marriage/ Annulment of
02-11-10-SC) In case of non-resident respondent,
Marriage
where he may be found, at the
election of the petitioner. (Sec. 4,
A.M. No. 02-11-10-SC)

2022 GOLDEN NOTES
Remedial Law
A.M. No. 02-11-11-SC
Where petitioner or respondent has

prior to the date of filing
Family Court (Sec. 2(c), A.M. No.
Legal Separation
02-11-11-SC) In case of non-resident respondent,
where he may be found at the
election of the petitioner (Sec. 2(c),
A.M. No. 02-11-11-SC)
Family Code
Petition for Judicial Permission
RTC Where the petitioner resides.
to Marry
Where the petitioner resides or
Family Court (Sec. 5, R.A. No.
Summary Proceedings where the child resides if it involves
8369)
minors.
R.A. No. 8369 (For actions mentioned in the Family Code)
1. Petitions on Foster Care and
Temporary Custody Where petitioner or respondent has
2. Declaration of Nullity of prior to the date of filing.
Marriage Family (Sec. 5, R.A. No. 8369)
In case of non-resident respondent,
3. Cases of Domestic Violence where he may be found at the
Against Women and election of the petitioner.
Children
Rule 102
SC, CA, RTC, MTC in the

province or city in case there is
Where the aggrieved party is
Habeas Corpus no RTC judge; SB only in aid of
detained (RTC)
its appellate jurisdiction. (Sec. 2,
A.M. No. 03-04-04-SC
Family Court, CA, SC (Sec. 20,

A.M. No. 03-04-04-SC)
NOTE: A petition may be filed

with the regular court in the
Habeas Corpus in Relation to Where the petitioner resides or
absence of the presiding judge
Custody of Minors (Sec. 20, A.M. No. where the minor may be found. (Sec.
of the Family Court, provided,
03-04-04-SC) 3, A.M. No. 03-04-04-SC)
however, that the regular court
shall refer the case to the Family
Court as soon as its presiding
judge returns to duty. (Sec. 20,
A.M. No. 03-04-04-SC)

A.M. No. 07-9-12-SC

Where the threat, act or omission
RTC, SB, CA or SC or any
was committed or any of its
Writ of Amparo justice thereof (Sec. 3, A.M. No.
elements occurred (Sec. 3, A.M. No.
07-9-12-SC)
07-9-12-SC)
A.M. No. 08-1-16-SC
Where the petitioner or respondent
resides, or that which has
RTC, SB, CA or SC or any jurisdiction over the place where
Writ of Habeas Data justice thereof (Sec. 3, A.M. No. the data or information is gathered,
08-1-16-SC) collected or stored, at the option of
the petitioner (Sec. 3, A.M. No. 08-1-
16-SC)
A.M. No. 09-6-8-SC
Where the unlawful act, omission or
SC or any stations of CA (Sec. 3,
Writ of Kalikasan threat was committed (Sec. 3, A.M.
Rule 7, A.M. No. 09-6-8-SC)
No. 09-6-8-SC)
Publication Requirement in Special Proceedings
SPECIAL PROCEEDING PUBLICATION OF ORDER OF HEARING

Clerical or typographical errors;
administrative change of first name
or nickname, the day and month in
the date of birth or sex of a person Once a week for 2 consecutive weeks (Sec. 5, R.A. No. 9048)
where it is patently clear that there
was a clerical or typographical
error or mistake in the entry
Settlement of estate of deceased
persons
Judicial change of name Once a week for 3 consecutive weeks (Sec. 2, Rule 74, ROC, as
Judicial cancellation or correction amended; Sec. 3; Rule 103, ROC, as amended; Sec. 3, Rule 105, ROC, as
of entries in the civil registry amended; Sec. 12, A.M. No. 02-06-02-SC)
Domestic adoption
Inter-country adoption
Once a week for 3 consecutive weeks (Sec. 4, Rule 107, ROC, as
amended)
Declaration of absence
NOTE: The declaration of absence shall not take effect until six (6)
months after its publication in a newspaper of general circulation.
Once a week for 6 consecutive weeks (Sec. 2, Rule 91, ROC, as
Escheat
amended)
Guardianship
Trustees
None.
Custody of minors
Rescission of adoption

2022 GOLDEN NOTES
Remedial Law
Correction of clerical or
typographical error
Habeas corpus
Writ of amparo
Writ of habeas data
Writ of kalikasan
1. Petitions on foster care and
temporary custody
2. Cases of domestic violence
against women and children
Summary proceedings
NOTE: In declaration of nullity or annulment of marriage or legal separation, service of summons may be made
through publication once a week for 2 consecutive weeks. (Sec. 6(1), A.M. No. 02-11-10-SC)
Notification Requirement in Special Proceedings
SPECIAL PROCEEDING TO WHOM NOTICE MUST BE GIVEN

Settlement of estate of
Executor/administrator/any interested party
deceased persons
Trustees All persons interested in the trust
Judicial change of name Interested parties/Solicitor General
Judicial cancellation or
Persons named in the petition/Solicitor General/Civil Registrar impleaded as
correction of entries in the
respondent
civil registry
Declaration of absence and
Heirs/legatees/devisees/creditors/other interested persons
death
Administrative correction
of entry/ change of first Interested parties
name or nickname
The minor if above 14 years of age/incompetent himself/Interested parties
Guardianship
on the property of the ward. General or special notice may be given.
Domestic Adoption Biological parents/Solicitor General
Rescission of Adoption Adopter
Inter-country Adoption Biological parents, if any/guardian
Custody of Minors Biological parents/guardian, if any
Habeas corpus To the person to which the writ is directed
Writ of Amparo Respondent
Writ of habeas data Respondent
Writ of kalikasan Respondent
Summary proceedings Respondent and interested party
1. Petitions on foster care
and temporary custody
2. Cases of domestic Solicitor General/Public Prosecutor
violence against women
and children
Declaration of nullity of
void marriage/ Annulment City/Provincial Prosecutor/ Respondent
of marriage

Legal separation City/Provincial prosecutor/ Respondent

Escheat None
VENUE OF SPECIAL PROCEEDINGS
Settlement of estate (Rule 73)

RTC (or MTC) of province where deceased last resided/property situated.
Escheat (Rule 91)
RTC of province where deceased last resided/property situated.
Guardianship (Rule on Guardianship of Minors [A.M. No. 03-02-05-SC])
Family Court of province or city where minor resides/property situated. (Rule 92)
RTC of province or city where incompetent resides/property situated.

Adoption (Rule on Adoption [A.M. No. 02-6-02-SC])
Family Court of province or city where prospective adoptive parents reside.
Rescission – where adoptee resides.
Writ of Habeas Corpus (Rule 102)
If filed with RTC, where detainee is detained. SC, CA and RTC have concurrent jurisdiction. However, the writ
of habeas corpus issued by the RTC shall be enforceable only within its judicial region (Sec. 21, BP 129).
Habeas Corpus for custody of minors: Family courts have exclusive jurisdiction (Family Courts Act of 1997,
RA 8309).
However, under the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors
(A.M. No. 03-04-04-SC), the petition may be filed with SC, CA or any of its members, and the writ shall be
enforceable anywhere in the Philippines.
Writ of Amparo (A.M. No. 07-9-12-SC)
SC, CA and SB
RTC of the place where the threat, act or omission was committed or any of its elements occurred
Habeas Data (A.M. No. 08-1-16-SC)
SC, CA and SB
RTC:
1. Where petitioner resides; or
2. Where respondent resides;
3. Which has jurisdiction over the place where data or information is gathered, etc.
All at the option of petitioner.

Change of name (Rule 103)
RTC of province of residence of petitioner.
Absentees (Rule 107)
RTC of place where absentee resided before his disappearance.
Cancellation or correction of entries (Rule 108)
RTC of place where civil registry is located.
Correction of clerical or typographical errors (RA 9048):
GR: Local Civil Registrar of place where record is located.

2022 GOLDEN NOTES
Remedial Law
XPN: If impractical in terms of transportation expenses, time and effort as where petitioner has transferred
to another place – Local Civil Registrar of petitioner’s residence.

1. VENUE AND PROCESS

A. SETTLEMENT OF ESTATE OF DECEASED (RULE 73)
PERSONS, VENUE, AND PROCESS
(RULE 73) Which Court has Jurisdiction
RTC MTC
Gross value of the
Modes of Settlement of Estate Gross value of the estate
estate is P300,000 or
exceeds P300,000
less (outside Metro
1. Extrajudicial Settlement (2001 & 2005 BAR) (outside Metro Manila)
Manila) or P400,000
– if the decedent left no will and no debts, and or exceeds P400,000
or less (within Metro
the heirs are all of age, or the minors are (within Metro Manila).
Manila). (Sec. 33(1),
represented by their judicial or legal (Sec. 19(4), B.P. No. 129,
B.P. No. 129, as
representatives duly authorized for the as amended by R.A. No.
amended by R.A. No.
purpose. (Sec. 1, Rule 74, ROC, as amended) 7691)
7691)
2. Judicial Settlement – where proceedings in
court are necessary, and includes the Venue in Judicial Settlement of Estate (2003,
2005, & 2010 BAR)
following:
a. Summary Settlement of Estates of Small RESIDENT NON-RESIDENT

Value – Whenever the gross value of the Court of the
estate of a deceased person, whether he province/city where the Court of the
died testate or intestate, does not exceed deceased resided at the province/city where
P10,000.00, the court, upon hearing and time of death, whether a the estate may be
notice to interested persons, may proceed citizen or alien. (Sec. 1, found. (Sec. 1, Rule 73,
summarily, without the appointment of Rule 73, ROC, as ROC, as amended)
an executor or administrator. (Sec. 2, Rule amended)
Rule 73, Sec. 1 relates to venue, not jurisdiction. In
b. Testate Proceedings – When the order to determine the proper venue in estate
decedent left a last will and testament. proceedings, one looks into the fact of residency in
(Rules 75-79, ROC, as amended) the Philippines and not the fact of citizenship. (De
c. Intestate Proceedings – When the
decedent died without a will, or died with The determination of which court exercises
a will but was found invalid and jurisdiction over matters of probate depends upon
thereafter disallowed. (Rule 79, ROC, as the gross value of the estate of the decedent. Rule
amended) 73, Sec. 1 is deemed amended by B.P. 129, as
amended by R.A. No. 7691. (Lim v. CA, G.R. No.
d. Partition – When there is no will and the 124715, 24 Jan. 2000)
parties entitled to the estate would agree
on the project of partition. (Rule 69, ROC, As soon as the probate court acquires jurisdiction
as amended) over all properties of the deceased, no other court
can dispose of such properties without the probate
court’s approval, for that would be tantamount to
divesting the latter with jurisdiction. (Union Bank vs.
Santibañez, G.R. No. 149926, 23 Feb. 2005)

2022 GOLDEN NOTES
Remedial Law
GR: Once the court assumes jurisdiction, it shall not estate should have been filed with the RTC of
be contested so far as it depends on the decedent’s Quezon City, and not at San Carlos City, Negros
place of residence or the location of the estate. Occidental. Will the motion to dismiss prosper?
XPN: As an exception, impropriety of venue may be A: NO. The complaint cannot be dismissed on the
raised in two instances: ground of improper venue on the basis of Rule 73
because such Rule refers exclusively to the special
1. In an appeal from the court, in the original case; proceeding of settlement of estates and NOT to
or ordinary civil actions. Invoking Rule 73 to allege
2. When the want of jurisdiction appears on the improper venue is entirely inconsistent with
record (Sec. 1, Rule 73, ROC, as amended) Treyes' assertion. (Treyes v Larlar, G.R. No. 232579,
08 Sept. 2020, En Banc, by J. Caguioa)
NOTE: Venue may be assailed only when the estate
proceedings are brought up on appeal or if a plain Meaning of Residency in Settlement of Estate
reading of the records of the case will immediately
show that venue was improperly laid. Residence is construed to be the personal, actual,
physical habitation, his actual residence or place of
Whether a particular matter should be resolved by abode, not his legal residence or domicile. (Fule v.
the Court of First Instance in the exercise of its CA, G.R. No. L-40502, 29 Nov. 1976)
general jurisdiction or of its limited probate
jurisdiction is in reality not a jurisdictional question. Principle of Preferential Jurisdiction/
In essence, it is a procedural question involving a Exclusionary Rule (2003, 2005, & 2010 BAR)
mode of practice "which may be waived." (Coca v.
Borromeo, G.R. No. L-29545, 31 Jan. 1978) GR: The probate court first taking cognizance of the
settlement of the estate.
Q: Rosie, the wife of Treyes, who did not bear any
children the latter, died without any will. Rosie NOTE: The rule on venue does not state that the
also had 7 siblings, namely Antonio, Emilio, court with whom the estate or intestate petition is
Heddy, Rene, Celeste, Judy, and Yvonne. At the first filed acquires jurisdiction. In order for the court
time of her death, Rosie left behind 14 real to acquire exclusive jurisdiction, said court must
estate properties situated in various locations in also first take cognizance of the same, to the
the Philippines, which she owned together with exclusion of all other courts. (De Leon & Wilwayco,
Treyes as their conjugal properties. According 2020)
to Rosie's siblings, they sent a letter to Treyes
requesting for a conference to discuss the XPN: Estoppel by Laches (Uriarte v. CFI of Negros
settlement of the estate of their deceased sister, Occidental, G.R. Nos. L-21938-39, 29 May 1970)
Rosie. In 2012, they learned that he TCTs
previously registered in the name of their sister The prohibition of filing an action relating to the
and Treyes had already been cancelled. estate other than in the probate court where the
petition for the settlement of estate was filed refers
Rosie's siblings filed a complaint before the RTC. only to courts in the Philippines and does not
Treyes filed a motion to dismiss on the ground include foreign courts. (Republic v. Villarama, Jr. G.R.
of improper venue. Treyes posits that the No. 117733, 05 Sept. 1997)
correct venue for the settlement of a decedent's
estate is the residence of the decedent at the The rule applies to both testate and intestate
time of her death, which was at No. 1-C, proceedings. (Intestate Estate of Wolfson, G.R. No. L-
Guatemala Street, Loyola Grand Villas, Loyola 28054 15 June 1972)
Heights, Katipunan Avenue, Quezon City. Hence,
Treyes maintains that the settlement of her

Testate Proceedings take precedence over proceeding has been granted. Sol argues that
Intestate Proceedings since Roberto Jr. is entitled to at least 1/7 of the
estate of his late mother and as the surviving
When two Proceedings were filed spouse, she is entitled to that portion belonging
to Roberto Jr. which is equivalent to the legitime
1. The intestate case should be consolidated with of the legitimate children of the decedent. Is the
testate proceedings and the judge assigned to Motion for Intervention filed by Sol in the
the testate proceeding should continue hearing settlement of the estate of Gloria and Roberto Sr.
the two cases. (Roberts v. Leonidas, G.R. No. L- proper?
55509 27 Apr. 1984)
A: NO. Intervention is a remedy by which a third
2. Testate proceeding takes precedence over party, not originally impleaded in the proceedings.
intestate proceeding. If in the course of Further, in the settlement of a deceased's estate,
intestate proceeding, it is found that decedent Section Rule 73 of the Rules of Court which provides
left a will, proceeding for probate of will should that the court first taking cognizance of the
replace the intestate proceeding even if at that settlement of the estate of a decedent, shall exercise
stage an administrator has already been jurisdiction to the exclusion of all other courts.
appointed. (Uriarte v. CFI of Negros Occidental, Given the existence of the settlement of Roberto Jr.'s
G.R. Nos. L-21938-39, 29 May 1970) (2002 BAR) estate proceeding, only the court where the
settlement of Roberto Jr.'s estate proceeding is
3. The first court, upon learning that petition for pending, has jurisdiction to determine who the heirs
probate has been presented in another court, of Roberto Jr. are. Since intervention is not a matter
may decline to take cognizance of and hold in of right but depends on the sound discretion of the
abeyance the petition before it, and instead court, respondent Sol's intervention in the probate
defer to the second court which has before it the proceeding is unnecessary because her right or
petition for probate of the decedent's alleged interest in the estate of Roberto Jr. can be fully
last will. If the will is admitted to probate, it will protected in a separate proceeding-namely, the
definitely decline to take cognizance. (Cuenco v. settlement of Roberto Jr.'s estate proceeding.
CA, G.R. No. L-2474, 26 Oct. 1973) (Martin Roberto G. Tirol v. Sol Nolasco, GR No
230103, 27 Aug. 2020, J. Caguioa)
NOTE: In Uriarte, there was a showing that the
petitioner in the probate proceeding had knowledge Extent of Jurisdiction of Probate Court
prior to filing the testate proceeding that an
intestate proceeding was already pending. In A probate court acting as such exercises limited
Cuenco, the petition for probate was filed without jurisdiction. It is primarily concerned with the
knowledge of an existing intestate proceeding, administration, liquidation, and distribution of
which was filed just a week earlier. (De Leon & estate. (Union Bank v. Santibañez, G.R. No. 149926,
Wilwayco 2020) 23 Feb. 2005)
Q: Gloria died testate and was survived by his It has the authority to:
husband, Roberto Sr. and their six children.
Roberto Jr., one of the children of Gloria and 1. Determine the heirs; and
Roberto, Sr., died intestate. Sol, alleging that she 2. Make a just and legal distribution of the estate.
is the surviving spouse of Roberto Jr., filed a
Motion for Intervention in the settlement of the If the special proceeding had been instituted but had
estate of Gloria and Roberto Sr. stating that she been finally closed and terminated, or if a putative
has a legal interest therein. In addition, the heir has lost the right to have himself declared in the
motion for intervention filed by Sol before the special proceedings as co-heir and he can no longer
RTC in. the settlement of Roberto Jr.'s estate ask for its re-opening, then an ordinary civil action

2022 GOLDEN NOTES
Remedial Law
can be filed for his declaration as heir in order to issue to the trial court and already presented
bring about the annulment of the partition or their evidence regarding the issue of heirship,
distribution or adjudication of properties belonging and the RTC had consequently rendered
to the estate of the deceased. (Portugal and judgment thereon; or
Portugal, Jr. v. Portugal-Beltran, G.R. No. 155555, 16
Aug. 2005) 2. When a special proceeding had been instituted
but had been finally closed and terminated, and
Questions of Title hence, cannot be re-opened. (Heirs of Ypon vs.
Ricaforte, G.R. No. 198680, 08 July 2013);
GR: The question as to titles of properties should
not be passed upon in testate or intestate 3. The probate court may pass upon the issue of
proceedings but should be ventilated in a separate ownership where the interested parties are all
action. heirs; or the question is one of collation or
advancement; or the parties consent to its
XPN: For purposes of expediency and convenience, assumption of jurisdiction and rights of third
the general rule is subject to exceptions, such that: parties are not impaired. (Munsayac-De Villa v.
CA, G.R. No. 148597, 24 Oct. 2004)
1. The probate court may provisionally pass
upon in an intestate or testate proceeding Other Questions which the Probate Court can
the question of inclusion in, or exclusion determine
from, the inventory of a piece of property
without prejudice to its final determination 1. Who are the heirs of the decedent;
in a separate action; 2. The recognition of a natural child;
3. The validity of disinheritance effected by the
2. The probate court is competent to decide testator;
the question of ownership if the interested 4. The status of a woman who claims to be the
parties are all heirs, or the question is one lawful wife of the decedent; and
of collation or advancement, or the parties 5. Jurisdiction to pass upon validity of waiver of
consent to the probate court's assumption hereditary rights;
of jurisdiction and the rights of third parties 6. The status of each heir;
are not impaired. (Mutilan v. Mutilan, G.R. 7. Whether property in inventory is conjugal or
No. 216109, 05 Feb. 2020) exclusive property of the deceased spouse; or
8. Matters incidental or collateral to the
Questions of Heirship settlement and distribution of the estate.
(Regalado, 2008)
GR: Jurisprudence dictates that the determination
of who are the legal heirs of the deceased must be In the exercise of probate jurisdiction, the Regional
made in the proper special proceedings in court, Trial Courts may issue warrants and processes
and not in an ordinary suit for recovery of necessary to compel the attendance of witnesses or
ownership and possession of property. This must to carry into effect their orders and judgments, and
take precedence over the action for recovery of all other powers granted them by law. (Sec. 3, Rule
possession and ownership. 73, ROC, as amended)
XPN: The need to institute a separate special Q: The probate court ordered the inclusion of a
proceeding for the determination of heirship may parcel of land registered in the name of Richard
be dispensed with: in the inventory of the properties of the
deceased Anna. Richard opposed the inclusion
1. For the sake of practicality, when the parties in arguing that the probate court cannot
the civil case had voluntarily submitted the determine the issue of the ownership of the

parcel of land inasmuch as the same was REASON: Upon the death of one spouse, the powers
registered in his name. Is Richard correct? of administration of the surviving spouse ceases and
is passed to the administrator appointed by the
A: YES. In probate proceedings, if a property court having jurisdiction over the settlement of
covered by Torrens title is involved, the estate proceedings. (Alipio v. CA, G.R. No. 134100, 29
presumptive conclusiveness of such title should be Sept. 2000)
given due weight, and in the absence of strong
compelling evidence to the contrary, the holder General Powers and Duties of a Probate Court
thereof should be considered as the owner of the
property in controversy until his title is nullified or 1. Orders the probate of the will of the decedent
modified in an appropriate ordinary action, (Rules 75 to 77, ROC, as amended);
particularly, when as in the case at bar, possession 2. Grants letters of administration (Rules 78 to 79,
of the property itself is in the persons named in the ROC, as amended);
title. (Luy Lim v. CA, G.R. No. 124715, 24 Jan. 2000) 3. Supervises and controls all acts of
administration (Rules 80 to 85, Rule 87, ROC, as
Jurisdiction over Questions of Title to Property amended);
4. Hears and approves claims against the estate of
GR: A probate court cannot adjudicate or determine the deceased (Rule 86, ROC, as amended);
title to properties claimed to be a part of the estate 5. Orders payment of lawful debts (Rule 88, ROC,
and equally claimed as belonging to outside parties. as amended);
6. Authorizes sale, mortgage or any encumbrance
XPN: For the purpose of determining whether a of real estate (Rule 89, ROC, as amended); and
certain property should or should not be included in 7. Directs the delivery of the estate to those
the inventory, the probate court may pass upon the entitled thereto (Rule 90, ROC, as amended)
title thereto, but such determination is not
conclusive and is subject to the final decision in a NOTE: The court acts as trustee, and as such trustee,
separate action regarding ownership, which may be should jealousy guard the estate and see that it is
instituted by the parties. (De Leon & Wilwayco, wisely and economically administered, not
2020) dissipated. (Timbol v. Cano, G.R. No. L-15445, 29 Apr.
1961)
Settlement of Conjugal Property
2. SUMMARY SETTLEMENT OF ESTATES
When the marriage is dissolved by the death of the (RULE 74)
husband or wife, the community property shall be
inventoried, administered, and liquidated, and the Extrajudicial Settlement by Agreement between
debts thereof paid, in the testate or intestate Heirs, When Allowed
proceedings of the deceased spouse.
Requisites for extrajudicial settlement: (I-D-A-
If both spouses have died, the conjugal partnership P-P-B)
shall be liquidated in the testate or intestate
proceedings of either. (Sec. 2, Rule 7, ROC, as 1. Decedent died intestate;
amended) (2003, 2005, & 2010 BAR) 2. No outstanding debts at the time of settlement;
NOTE: A creditor cannot sue the surviving spouse of NOTE: No creditor should have filed a petition
a decedent in an ordinary proceeding for the for letters of administration within 2 years after
collection of a sum of money chargeable against the the decedent’s death.
conjugal partnership and that the proper remedy is
for him to file a claim in the settlement of estate of 3. Heirs are all of legal age or minors represented
the decedent. (De Leon & Wilwayco, 2020) by judicial guardians or legal representatives;

2022 GOLDEN NOTES
Remedial Law
4. Settlement is made in a public instrument or by petitioner Victoria, Ramon, Adelaida, Emelita,

means of an affidavit, in case of a sole heir, duly and Elena (collectively referred to as the
filed with the RD; defendants siblings). Belen alleged that she did
5. Publication in a newspaper of general not receive her lawful share from the estate of
circulation in the province once a week for 3 their mother, Ceferina. She prayed for the
consecutive weeks; and partition of the estate and that she be awarded
Filing of Bond equivalent to the value of personal her lawful share. The defendants siblings filed
property with the RD. (De Leon & Wilwayco, 2020) their Answer, alleging that they were willing to
settle the partition case amicably, and that it
NOTE: The amount of bond is equivalent to the was respondent Belen who intentionally
value of the personal property that forms part of the refused to show documents pertaining to the
estate. This should be distinguished from the supposed properties left by Ceferina.
amount of the bond for purposes of summary Meanwhile, petitioner Victoria filed an Answer
settlement of estate, in which case, the amount of alleging that she is in favor of the partition and
the bond shall be fixed by the court. accounting of the properties of Ceferina. The
parties referred the case to mediation. After
With respect to real estate, there shall be a lien on mediation proceedings, the parties reached an
the real estate in favor of creditors, heirs, or other Agreement.
persons for two (2) years after the distribution.
However, on the day of the signing of the
In case of disagreement of heirs, they may state agreement, petitioner Victoria failed to appear.
their oppositions in an ordinary action of partition. This notwithstanding, the RTC issued a Decision
issuing a judgment on compromise. Aggrieved,
Decedent Left No Will Victoria alleged before the CA that the
Compromise Agreement cannot be binding as to
It is indispensable that the decedent left no will. If her considering she did not sign it and
the decedent left a will, both substantive and supposedly did not consent to its execution. Is
procedural law mandate that the same be presented Victoria correct?
and admitted into probate, and the estate be
distributed in accordance with the decedent’s A: NO. The fact that Victoria failed to sign the
wishes. written document bearing the terms of the parties'
agreement is of no moment. An oral partition may
The heirs cannot disregard the decedent’s be valid and binding upon the heirs; there is no law
disposition of one’s estate by resorting to that requires partition among heirs to be in writing
extrajudicial settlement as this is contrary to public to be valid.
policy. (De Leon & Wilwayco, 2020)
Under Rule 74, Sec. 1 of the Rules of Court, there is
Oral Partition is Valid nothing in said section from which it can be inferred
that a writing or other formality is an essential
Oral partition is valid. It is valid when there are no requisite to the validity of the partition. Accordingly,
creditors or when no rights of the creditors are an oral partition is valid. Partition among heirs or
involved. The requirement of public instrument, for renunciation of an inheritance by some of them is
its purpose, is for the protection of creditors and at not exactly a conveyance of real property because it
the same time the protection of the heirs against does not involve transfer of property from one to
tardy claims. (Vda. de Reyes v. CA, G.R. No. 92436, 21 the other, but rather a confirmation or ratification
July 1991) of title right of property by the heir renouncing in
favor of another heir accepting and receiving the
Q: Respondent Belen filed an amended inheritance. Hence, an oral partition is not covered
complaint against her siblings, namely, by the Statute of Frauds.

In fact, the Court has likewise previously held that, Office of the Register of Deeds. Three (3) years
independent and in spite of the statute of frauds, thereafter, Suzy appeared, claiming to be the
courts of equity have enforced oral partition when illegitimate child of Pinoy. She sought to annul
it has been completely or partly performed. In the the settlement alleging that she was deprived of
instant case, there is no refutation on the part of her rightful share in the estate. Rosie and the
petitioner Victoria as to respondent Belen’s three children contended that (1) the
assertion that the terms of the Compromise publication of the deed constituted constructive
Agreement have already been partially performed notice to the whole world and should therefore
by the parties. (Fajardo v. Cua-Malate, G.R. No. bind Suzy; and (2) Suzy’s action had already
213666, 27 March 2019, J. Caguioa) prescribed. Are Rosie and the three children
correct? Explain. (2009 BAR)
Effect of an Extra-Judicial Partition Depriving an
Heir, Creditor, or Other Person of His Lawful A: NO. Suzy can file a complaint to annul the
Participation in the Estate extrajudicial settlement and she can recover what is
due her as such heir if her status as an illegitimate
The court having jurisdiction of the estate may, by child of the deceased has been established. The
order for that purpose, after hearing, settle the publication of the settlement does not constitute
amount of such debts or lawful participation and constructive notice to the heirs who had no
order how much and in what manner each knowledge or did not take part in it because the
distribute shall contribute in the payment thereof, same was notice after the fact of execution. The
and may issue execution, if circumstances require, requirement of publication is intended for the
against the bond or against the real estate belonging protection of creditors and was never intended to
to the deceased, or both. (Sec. 4, Rule 74, ROC, as deprive heirs of their lawful participation in the
amended) decedent’s estate. She can file the action therefor
within four (4) years after the settlement was
Purpose of Publication of Settlement registered.
The requirement of publication is geared for the Two-year Prescriptive Period

protection of creditors and was never intended to
deprive heirs of their lawful participation in the GR: After the expiration of two (2) years from the
decedent’s estate. (Cua v. Vargas, G.R. No. 156356, 21 extrajudicial partition, distributees, or heirs are
Oct. 2006) barred from objecting to an extrajudicial partition.
NOTE: The procedure outlined in Sec. 1 of Rule 74 Provided, that the provision of Sec. 4 of Rule 74,
is an ex parte proceeding. The rule plainly states, barring distributees or heirs from objecting to an
however, that persons who do not participate or extrajudicial partition after the expiration of two (2)
had no notice of an extrajudicial settlement will not years from such extrajudicial partition, is applicable
be bound thereby. It contemplates a notice that has only:
been sent out or issued before any deed of
settlement and/or partition is agreed upon, and not 1. To persons who have participated or taken part
after such an agreement has already been executed or had notice of the extrajudicial partition; and
as what happened in the instant case with the
publication of the first deed of extrajudicial 2. When all the persons or heirs of the decedent
settlement among heirs. (Ibid.) have taken part in the extrajudicial settlement
or are represented by themselves or through
Q: Pinoy died without a will. His wife, Rosie, and their guardians. (Sampilo v. CA, G.R. No. L-
their three children executed a deed of 10474, 28 Feb. 1958)
extrajudicial settlement of his estate. The deed
was properly published and registered with the

2022 GOLDEN NOTES
Remedial Law
XPN: If on the date of the expiration of the period of registered owner of the subject property. On the
two (2) years, the person authorized to file a claim day of the supposed hearing to enable Elena to
is a minor or mentally incapacitated, or is in prison substantiate her claim, neither Elena nor her
or outside the Philippines, he may present his claim counsel appeared. Instead, Atty. Pilares prayed
within one (1) year after such disability is removed. that the sole heir, Leonor Macabagdal, be
(Sec. 5, Rule 74, ROC, as amended) substituted in Elena's place since Elena already
died in 1997 as shown in her death certificate.
NOTE: The action for the declaration of nullity of the The RTC ordered the substitution and the CA
defective deed of extrajudicial settlement does not affirmed. The petitioner Republic argued that
prescribe, under the circumstances, given that the the substitution of Leonor was improper as the
same was a total nullity. (Cruz vs. Cruz, G.R. No. extrajudicial deed of partition, the evidence for
211153, 28 Feb. 2018) allowing her to be substituted as the sole heir,
was neither registered in the Register of Deeds
Affidavit of Self-Adjudication by Sole Heir of Valenzuela City nor published in a newspaper
of general circulation. Is the petitioner's
If there is only one heir, he may adjudicate to contention correct?
himself the entire estate by means of an affidavit
filed in the Office of the Registry of Deeds. (Sec. 1, A: NO. Even assuming arguendo that the
Rule 74, ROC as amended) unregistered Deed of Extrajudicial Settlement was
the only piece of evidence provided by respondent
Adjudication by an heir of the decedent’s entire Leonor to establish her interest over the subject
estate to himself by means of an affidavit is allowed property, the fact that the said Deed of Extrajudicial
only if he is the sole heir to the estate. (Delgado Vda. Settlement was not registered before the Register of
de De la Rosa v. Heirs of Marciana Rustia Vda. de Deeds does not strip away the document's
Damian, G.R. No. 155733, 27 Jan. 2006) evidentiary value with respect to respondent
Leonor's status and interest over the subject
NOTE: Said rule is an exception to the general rule property.
that when a person dies leaving a property, it should
be judicially administered and the competent court While petitioner Republic is correct insofar as
should appoint a qualified administrator, in the saying that under Sec. 1, Rule 74 of the Rules of
order established in Sec. 6, Rule 78 in case the Court an unregistered affidavit of self-adjudication
decedent left no will, or in case he did, he failed to or extrajudicial settlement does not bind third
name an executor therein. (Portugal v. Portugal- persons with respect to the adjudication of
Beltran, G.R. No. 155555, 16 Aug. 2005) property, the CA is also correct in its holding that
there is no provision in the Rules of Court which
Q: Petitioner Republic, represented by DPWH, states that "the instrument cannot be used to prove
filed a Complaint seeking to expropriate a parcel that one is an heir" due to the sheer fact that it was
of land located in Valenzuela City for the not registered before the Register of Deeds.
implementation of the C-5 Northern Link Road (Republic v. Macabagdal, G.R. No. 203948, 22 Jan.
Project. The complaint initially impleaded an 2020, J. Caguioa)
unidentified owner named in the title as "John
Doe YY." Subsequently, petitioner Republic’s Summary Settlement of Estates of Small Value,
motion for issuance of a writ of possession was When Allowed
granted by the RTC.
Summary settlement of estate may be chosen by the
Later on, a certain Atty. Panlaque appeared heirs regardless of whether the decedent died
before the RTC, praying that Elena Macabagdal testate or intestate. (De Leon & Wilwayco, 2020)
be substituted as party defendant, alleging that
she is the real party in interest, being the The following requisites must be present:

1. The complaint must allege that the gross value Amount of bond is
of the estate of the deceased does not exceed equal to the value of Amount of bond is to be
P10,000.00; personal property. determined by the court
2. A bond has been duly filed in an amount fixed irrespective of whether
by the court; and If it is a real property, the estate consists of
3. A proper hearing is held not less than 1 month it is subject to a lien real or personal
nor more than 3 months from date of last for a period of two (2) property.
publication of the notice. years.
4. It must be published for 3 consecutive weeks in Publication of notice
a newspaper of general circulation in the once a week for three
province. (Ibid.) (3) consecutive weeks;
Publication of notice court may likewise
NOTE: It is not proper to delay the summary of the fact of order that notice be
settlement of a deceased person just because an heir extrajudicial given to persons as the
or a third person claims that certain properties do settlement once a court may direct.
not belong to the estate but to him. week for three (3)
consecutive weeks in There is also a hearing
Such claim must be ventilated in an independent a newspaper of to be held not less than
action, and the probate court should proceed to the general circulation. one (1) month nor more
distribution of the estate, if there are no other legal than three (3) months
obstacles to it, for after all, such distribution must from the date of last
always be subject to the results of the suit. (Ermac v. publication of notice.
Medelo, G.R. No. L-32281, 19 June 1975; De Leon &
Wilwayco, 2020) Remedies of Aggrieved Parties after
Extrajudicial Settlement of Estate
Extrajudicial Settlement vs. Summary
Settlement of Estate of Small Value Claim against the Bond or Real Estate
Grounds:
EXTRAJUDICIAL SUMMARY
a. If there is undue deprivation of lawful
SETTLEMENT SETTLEMENT
participation in the estate;
Requires summary
b. Existence of outstanding debts against the
No court intervention. adjudication filed with estate. (Sec. 4, Rule 74, ROC, as amended)
the MTC.
Gross value of the estate Should be brought within two (2) years after
The value of the estate
must not exceed settlement and distribution of the estate
is immaterial.
P10,000.
Allowed only in Allowed in both testate NOTE: Such bond and real estate shall remain
intestate succession. and intestate succession charged with a liability to creditors, heirs or
Available even if there other person for the full period of two (2) years
There must be no
are debts. It is the court after distribution, notwithstanding any transfer
outstanding debts of
which will make of real estate that may have been made (Ibid.)
the estate at the time
provision for its
of the settlement. Compel the Settlement of Estate in Courts
payment.
May be instituted by Should be brought within two (2) years after
Resorted at the any interested party settlement and distribution of the estate.
instance and by even a creditor of the Ordinary Action but NOT against the Bond
agreement of all heirs. estate without the If the order of closure has already become final
consent of all the heirs. and executory, the heir must file an independent
civil action of accion reivindicatoria to recover

2022 GOLDEN NOTES
Remedial Law
his deprived share. NOTE: Also applicable in judicial proceedings not

covered by summary settlement of estate of small
NOTE: It must be brought within 10 years from value.
the time the right of action accrues. (Art. 1144 Action to Annul a Deed of Extrajudicial
(c), NCC) Settlement or Judgment in
Summary Settlement
After the lapse of two (2) years, an ordinary
action may be instituted against the distributees On the ground of fraud which should be filed
within the statute of limitations but not against within four (4) years from the discovery of fraud.
the bond.
Reopening of the Proceedings by Motion in
Summary Settlement
NOTE: Also applicable in judicial proceedings not
covered by summary settlement of estate of small Upon motion of a person who either:
value. a. Has a legal interest in the matter in
Action for Rescission (Applicable in both litigation;
Extrajudicial Settlement and b. Has such legal interest in the success of
Summary Settlement) either of the parties, or an interest against
If there is preterition of compulsory heir both; or
tainted with bad faith. (Art. 1104, NCC) c. Is so situated as to be adversely affected by
the distribution of property in the custody of
It must be availed of within five (5) years from the court or of an officer.
the time the cause of action accrues. (Art. 1149,
NCC) May be availed of after judgment but before the
finality of the closure order.
NOTE: Also applicable in judicial proceedings not
covered by summary settlement of estate of small NOTE: Also applicable in judicial proceedings not
value. covered by summary settlement of estate of small
Action for Reconveyance of Real Property value.
(Applicable in both Extrajudicial Settlement or
Petition for Reopening of Proceedings
Summary Settlement)
(Summary Settlement)
GR: The prescriptive period for the
reconveyance of fraudulently registered real If proceedings are already closed and the heir is
property is ten (10) years reckoned from the excluded, within a prescriptive period of 10
date of the issuance of the certificate of title. years.
This 10-year prescriptive period begins to run
from the date the adverse party repudiates the NOTE: Also applicable in judicial proceedings not
implied trust, which repudiation takes place covered by summary settlement of estate of small
when the adverse party registers the land. value.
Motion to Deliver Share (Extrajudicial

XPN: When the party seeking reconveyance
Settlement and Summary Settlement)
based on implied or constructive trust is in
actual, continuous and peaceful possession of If the heir is not excluded but failed to receive
the property involved. Prescription does not his share
commence to run against him because the
action would be in the nature of a suit for NOTE: Also applicable in judicial proceedings
quieting of title, an action that is not covered by summary settlement of estate of
imprescriptible. (Gatmaytan v. Misibis Land, Inc., small value.
G.R. No. 222166, 10 June 2020)

Petition for Relief (Summary Settlement) Period of the Interested Heir to Assail Validity
On grounds of fraud, accident, mistake, and An interested heir who was able to participate
excusable negligence within 60 days after either in extrajudicial or summary settlement of
petitioner learns of the judgment, final order or estate of the decedent has a period of two years after
other proceeding to be set aside, and not more settlement and distribution to assail its validity.
than six (6) months after such judgment or final (Cua v. Vargas, G.R. No. 156536, 31 Oct. 2006)
order was entered (Rule 38, ROC, as amended).
Remedy
Also applicable in judicial proceedings.
The remedy of an heir who is deprived of one’s
share in estate because one did not participate, take
Three (3) Instances when an Heir may be
part, or had no notice is to file an action for
Compelled to Settle the Decedent’s Estate in
reconveyance within ten years, which is based on
Court
implied or constructive trust.
1. There has been undue deprivation of lawful
An exception carved out by jurisprudence that an
participation in the estate on the part of an heir
action for reconveyance is imprescriptible when
or other interested person;
plaintiff, the legal owner, and not the defendant
2. There exist debts against the estate; and
registered owner, is in possession. (Heirs of
3. There has been undue deprivation of lawful
Saludares v. CA, G.R. No. 128254, 16 Jan. 2004)
participation payable in money on the part of an
heir or other interested person. (Sec. 4, Rule 74,
NOTE: Reconveyance can no longer be availed of
ROC, as amended)
once the property has passed to an innocent
purchaser for value. The aggrieved parties may sue
Q: May an order denying probate of will be
for damages against co-heirs who have perpetrated
overturned after period to appeal has lapsed?
the fraud.
Why? (2002 BAR)
Although the word “reconveyance” may appear in

A: YES. A petition for relief may be filed on the
the title of the complaint, but it is clear from the
grounds of fraud, accident, mistake or excusable
allegations that the complainants never intended to
negligence within a period of 60 days after the
part with the property, as their signatures were
petitioner learns of the judgment or final order and
forged, such complaint is one for annulment and not
not more than 6 months after such judgment or final
merely for reconveyance. It is, therefore,
order was entered (Secs. 1 & 3, Rule 38, ROC, as
imprescriptible. (Macababbad Jr. v. Masirag, G.R. No.
amended). An action for annulment may also be filed
161237, 14 Jan. 2009)
on the ground of extrinsic fraud within four (4)
years from its discovery, and if based on lack of
3. ALLOWANCE AND DISALLOWANCE OF WILLS
jurisdiction, before it is barred by laches or
(RULE 76)
estoppels. (Secs. 2 & 3, Rule 47, ROC, as amended)
Nature of Probate Proceeding

NOTE: The prescriptive period under Sec. 4 applies
only to persons who participated, took part in, or
1. In Rem – It is binding upon the whole world.
had notice of the settlement of the estate provided
under Rule 74. Persons who did not participate in
2. Mandatory – No will shall pass either real or
the extrajudicial or summary settlement of estate
personal property unless it is proved and
are not bound by the same.
allowed in the proper court. (Sec. 1, Rule 75,
ROC, as amended) (2005, 2006, & 2010 BAR)

2022 GOLDEN NOTES
Remedial Law
However, a will may be sustained on the basis XPNs: Principle of Practical Considerations –
of Art. 1080 of the Civil Code which states that: wherein the court may pass upon the intrinsic
“If the testator should make a partition by an act validity of the will:
inter vivos, or by will, such partition shall stand
in so far as it does not prejudice the legitime of 1. In the case of absolute preterition without any
the forced heirs.” (Mang-Oy v. CA, G.R. No. L- provision in favor of any devises or legatee
27421 12 Sept. 1986) (Nuguid v. Nuguid, G.R. No. L-23445, 23 June
1966); or
3. Imprescriptible - This is due to the public
policy to obey the will of the testator. 2. Where the defect is apparent on its face, the
probate court may determine the intrinsic
4. Doctrine of Estoppel does not Apply – The validity of the will even before its formal
presentation and probate of a will are validity is established, as the probate of a will
requirements of public policy, being primarily may become a useless ceremony if the will is
designed to protect the testator's, expressed intrinsically invalid. (Regalado, 2008)
wishes, which are entitled to respect as a
consequence of the decedent's ownership and A probate court does not have jurisdiction to rule
right of disposition within legal limits. with finality on the issue of ownership. Concededly,
(Fernandez v. Dimagiba, G.R. No. L-23638, 12 a probate court may provisionally pass upon
Oct. 1967) questions of ownership, but such determination is
without prejudice to the filing of a separate
5. Res Judicata – once allowed, by the court, it can reinvindicatory action by the aggrieved party. The
no longer be questioned, irrespective of any liquidation of the estate of a testator requires the
erroneous judgment because it serves as the final resolution of all issues pertaining to ownership
law of the case. (Balais v. Balais, G.R. No. L- of property. (Sebastian, 2015)
33924, 18 Mar. 1988)
Who may Petition for Probate; Persons Entitled
NOTE: The Deed of Donation, which is one of mortis to Notice
causa, not having followed the formalities of a will,
is void and transmitted no right to petitioner’s Personal notice to the heirs whose places of
mother. But even assuming that the formalities residence are known is mandatory.
were observed, since it was not probated, no right to
the subject lots was transmitted to Maria. (Aluad v. Sec. 4 of Rule 76 states that notice of the time and
Aluad, G.R. No. 176943, 17 Oct. 2008) place of the hearing for the allowance of a will shall
be forwarded to the designated or other known
Scope of Examination of a Will heirs, legatees, and devisees residing in the
Philippines at their places of residence, if such
GR: The probate of a will refers to its due execution places of residence be known.
and settles only the formal or extrinsic validity of
the will. (Regalado, 2008) Where the petition for the allowance of the will itself
indicated the names and addresses of the legatees
NOTE: The allowance of the decedent’s will is and devisees of the testator. Trial courts cannot
conclusive only as to its due execution. The simply abdicate their duty. The requirement of the
authority of the probate court is limited to law for the allowance of the will was not satisfied by
ascertaining whether the testator, being of sound mere publication of the notice of hearing for three
mind, freely executed the will in accordance with (3) weeks in a newspaper or general circulation in
the formalities prescribed by law. (Nittscher v. the province. (Racca v. Echague, G.R. No. 237133, 20
Nittscher, G.R. No. 160530, 20 Nov. 2007) Jan. 2021)

Parties who may File Petition for Probate heirs. (Sec. 4, Rule 76, ROC, as amended)
1. Executor (Sec. 1, Rule 76, ROC, as amended); How Jurisdiction is Acquired

2. Devisee or legatee named in the will (Ibid.);
3. Person interested in the estate (Ibid.); 1. Attachment of a copy of the will to the petition;
or
NOTE: An interested party is one who would be 2. Delivery of the will to the court. (Sec. 3, Rule 76,
benefited by the estate, such as an heir, or one ROC, as amended)
who has a claim against the estate such as a
creditor. (Sumilang v. Ramagosa, G.R. No. L- NOTE: Submission of the original will is not a
23135, 26 Dec. 1967) jurisdictional requirement. (De Leon & Wilwayco,
2020)
4. Testator himself during his lifetime; or
5. Any creditor – as preparatory step for filing of Custodian
his claim therein. (Regalado, 2008)
Refers to a person who receives a will with
Parties Entitled to Notice in a Probate Hearing knowledge, or under such circumstances that he
ought to have known that he was receiving custody
1. Designated or known compulsory heirs, of a will.
legatees and devisees of the testator resident in
the Philippines at their places of residence, at Mere possession of a will does not make the holder
least twenty (20) days before the hearing, if thereof a custodian of the will. A custodian is chosen
such places of residence beknown; by a testator in advance and entrusted with the
custody of a will by mutual agreement with the
2. Person named executor, if he be not the testator. This custodianship creates a bailor-bailee
petitioner; relationship. (De Leon & Wilwayco 2020)
NOTE: Petitioners, as nephews and nieces of Obligations of a Custodian

the decedent, are neither compulsory nor
testate heirs who are entitled to be notified of 1. Obligated to keep and preserve the will safely
the probate proceedings under the Rules. for the benefit of the testator until the latter’s
Respondent had no legal obligation to mention death;
petitioners in the petition for probate, or to 2. Must keep the contents of the will inviolate and
personally notify them of the same. (Alaban v. must not reveal its contents to anyone;
CA, G.R. No. 156021, 23 Sept. 2005) 3. Deliver the will either to the clerk of court in the
place where the decedent last resided or to the
Besides, assuming arguendo that petitioners executor named in the will within twenty (20)
are entitled to be so notified, the purported days after he knows of the death of the testator.
infirmity is cured by the publication of the (Sec. 2, Rule 75, ROC, as amended)
notice. After all, personal notice upon the heirs
is a matter of procedural convenience and not a NOTE: The failure of a custodian to present the will
jurisdictional requisite. (Ibid.) to the court for probate within the period given in
the rule does not preclude its probate.
3. Any person named as co-executor not
petitioning, if their places of residence be The same obligations are imposed to the executor
known; and who is also custodian of the will. (De Leon &
Wilwayco, 2020)
4. If the testator asks for the allowance of his own
will, notice shall be sent only to his compulsory

2022 GOLDEN NOTES
Remedial Law
Allowance and Disallowance of Will 1. Jurisdictional facts (2012 BAR):

a. Death of the testator;
GR: Probate proceedings are instituted only after b. His residence at the time of his death;
the death of the testator (post-mortem probate) c. If non-resident, the province where the
(Sec. 1, Rule 76, ROC, as amended) estate was left; and
d. The fact that the will has been delivered to
XPN: The testator himself may, during his lifetime, the court (Regalado, 2008);
petition the court having jurisdiction for the
allowance of his will (ante-mortem probate). (Sec. 2. The Names, ages and residences of the heirs,
12, Rule 76, ROC, as amended) legatees and devisees of the testator or
decedent;
Rationale for Ante-mortem Probate 3. The probable Value and character of the
property of the estate;
The Code Commission explains the reason for the 4. The name of the persons for whom Letters are
innovation thus: “Most of the cases that reach the prayed; and
courts involve either the testamentary capacity of 5. If the will has not been delivered to the court,
the testator or the formalities adopted in the the name of the person having Custody of it.
execution of wills. There are relatively few cases (Sec. 2, Rule 76, ROC, as amended)
concerning the intrinsic validity of testamentary
dispositions. It is far easier for the courts to NOTE: No defect in the petition shall render void the
determine the mental condition of a testator during allowance of the will or the issuance of letters
his lifetime than after his death. Fraud, intimidation testamentary or of administration with the will
and undue influence are minimized. Furthermore, if annexed.
a will does not comply with the requirements
prescribed by law, the same may be corrected at Mere Delivery of Will is Sufficient
once. The probate during the testator’s life,
therefore, will lessen the number of contests upon The court may act upon the mere deposit therein of
wills. Once a will is probated during the lifetime of a decedent’s testament, even if no petition for its
the testator, the only questions that may remain for allowance is as yet filed.
the courts to decide after the testator’s death will
refer to the intrinsic validity of the testamentary Where the petition for probate is made after the
dispositions. It is possible, of course, that even when deposit of the will, the petition is deemed to relate
the testator himself asks for the allowance of the back to the time when the will was delivered. (De
will, he may be acting under duress or undue Leon & Wilwayco, 2020)
influence, but these are rare cases.” (The Code
Commission Report, p. 53) Obligations of the Court After the Delivery of
Will or Petition for its Allowance is Filed
Who may File Petition for Post-mortem Probate
1. Fix the time and place for proving the will.
1. Executor; 2. Cause the notice of the time and place to be
2. Devisee; published for three successive weeks in a
3. Legatee; or newspaper of general circulation in the
4. Any other person interested in the estate. (Sec. province. (Sec. 3, Rule 76, ROC, as amended)
NOTE: The requirement of publication constitutes a
Contents of Petition for Allowance of Will constructive notice that binds the whole world. A
settlement proceeding may be annulled if it is
A petition for the allowance of a will must show, so shown that the notice is not published. (De Leon &
far as known t the petitioner: (Ju-N-Va-Le-C) Wilwayco, 2020)

When it is the testator who files the petition for 4. Respondent’s contention that notice to Migdonio
probate, only the testator’s compulsory heirs are redounded to Miam since they live in the same
notified by the court. In such case, the publication residence does not avail. Sec. 4 requires that each
requirement is dispensed with. (Secs. 3 & 12, Rule known heir whose residence is known be
76, ROC, as amended) individually served a copy of the notice of hearing.
Although petitioners live in the same residence, it
Q: Echague filed a Petition for the allowance of should not deprive Miam of her right to receive her
the will of the late Amparo and issuance of own copy of the notice. Sec. 4 does not distinguish
letters testamentary. Finding the petition between heirs with the same address and those who
sufficient in form and substance, the RTC issued reside in different locations. (Racca v. Echangue, G.R.
an Order on April 18, 2017 setting the case for No. 237133, 20 Jan. 2021)
hearing on June 21, 2017 at 8:30 a.m. On even
date, the trial court issued the corresponding Effects of the Allowance of a Will
Notice of Hearing. The hearing proceeded but
Migdonio and Miam, the known heirs, failed to The judgment or decree of the court allowing the
appear, hence, prompting the trial court to will is:
declare them in default.
1. Conclusive as to its due execution (Sec. 1, Rule
Petitioners filed a Motion to Lift Order of 75, ROC, as amended) (1999, 2005, 2006, &
General Default on the ground of excusable 2010 BAR); and
negligence. They alleged that Migdonio,
Amparo's husband and known heir, received a 2. Binding against everybody, even against the
copy of the Notice of Hearing only on June 19, State. (Coloma v. Coloma, G.R. No. L-19399, 31
2017 or two (2) days prior to the scheduled July 1965)
hearing. Since Migdonio is already of advanced
age, being 78 years old, and not in perfect health, Proving a Will
he could not immediately act on the notice
within such a short period of time. Miam, UNCONTESTED CONTESTED
Amparo's daughter and known heir, on the Notarial Will
other hand, did not receive any notice. Are the The court may grant
heirs of the testator entitled to personal notice allowance thereof on All the subscribing
despite the publication and posting of the notice the testimony of one of witnesses and the
of the hearing? the subscribing notary public must
witnesses only, if such testify as to the due
A: YES. Notice to the designated and known heirs, witness testifies that execution and
devisees and legatees under Sec. 4, Rule 76 of the the will was executed attestation of the will.
Rules of Court is mandatory. Publication of notice of as is required by law. (Sec. 11, Rule 76, ROC,
hearing is not sufficient when the places of (Sec. 5, Rule 76, ROC, as as amended)
residence of the heirs, legatees and devisees are amended)
known. Holographic Will
The will shall be
In here, Miam was indicated as a known heir of At least one witness
allowed if at least
Amparo in the petition filed by respondent While who knows the
three (3) witnesses
her status as a compulsory heir may still be subject handwriting and
who know the
to confirmation, the petition, on its face, had already signature of the
handwriting of the
informed the probate court of the existence of Miam testator explicitly
testator explicitly
as one of Amparo's heirs. The petition also provided declares that the will
declare that the will
Miam's residence. By respondent's own averments, and the signature are in
and the signature are
Miam is entitled to the notice of hearing under Sec. the handwriting of the
in the handwriting of

2022 GOLDEN NOTES
Remedial Law
testator. (Sec. 5, Rule the testator. (Sec. 11, 1. The subscribing witnesses are dead or insane;
76, ROC, as amended) Rule 76, ROC, as or
amended) 2. None of them resides in the Philippines. (Sec. 8,
Holographic Will Petitioned by Matters that shall be Testified on by the Other

Testator Himself Witnesses
The fact that he affirms
that the holographic 1. The sanity of the testator; and
The burden of
will and the signature 2. Due execution of the will. (Sec. 8, Rule 76, ROC,
disproving shall be on
are in his own as amended)
the contestant.
handwriting shall be
sufficient. Ground for Disallowing a Will
NOTE: In the absence of competent witness, and if The grounds for the disallowance of a will are
the court deems it necessary, expert testimony may exclusive and may be categorized into three main
be resorted to. (Sec. 5, Rule 76, ROC, as amended) groups:
Remedy if None of the Subscribing Witnesses 1. Non-compliance with legal formalities: If not
Resides in the Province where Probate is being executed and attested as required by law;
Conducted
2. Lack of testamentary capacity: If the testator
A motion for taking of deposition of one or more of was insane, or otherwise mentally incapable to
them. (Sec. 7, Rule 76, ROC, as amended) make a will, at the time of its execution; and
Deposition may be resorted to if the deponent lives 3. Will was not duly executed:
at least 100 kilometers away from the territorial a. If it was executed under duress, influence
jurisdiction of the probate court. (Sec. 4, Rule 23, of fear, or threats;
ROC, as amended)
b. If it was procured by undue and improper
NOTE: The court may also authorize photographic pressure or influence, on the part of the
copy of the will to be made and to be presented to beneficiary, or of some other person for
the witness on his examination, who may be asked his benefit; or
questions with respect to it, and to the handwriting
of the testator and others, as would be pertinent and c. If the signature of the testator was
competent if the original will was present. (Sec. 7, procured by fraud or trick, and he did not
Rule 76, ROC, as amended) intend that the instrument should be his
will at the time of fixing his signature
Testimony of Witnesses Other than Subscribing thereto. (De Leon & Wilwayco, 2020, citing
Witnesses Sec. 9, Rule 76, ROC, as amended)
GR: The courts must examine the testimony of the Substantial Compliance Rule
subscribing witnesses.
In the absence of bad faith, forgery, or fraud, or
XPN: The court may examine witnesses other than undue and improper pressure and influence, defects
the subscribing witnesses in the following and imperfections in the form of attestation or in the
instances: language used therein shall not render the will
invalid if it is proved that the will was in fact
executed and attested in substantial compliance

with all the requirements of Art. 805. (Art. 809, NCC) GR: Not all money claims may however be
presented, but only those which are proper against
NOTE: Separate wills which contain essentially the the decedent, that is, claims upon a liability
same provisions and pertain to properties which in contracted by the decedent before his death.
all probability are conjugal in nature, practical
considerations dictate their joint probate. (Vda. de XPN: Claims arising after his death cannot thus be
Perez v. Tolete, G.R. No. 76714, 02 June 1994) presented except:
1. Funeral expenses; and
Art. 809 establishes the doctrine of liberal 2. Expenses of the last sickness of the decedent.
interpretation. (Testate Estate of deceased Gabin v. Melliza, et.
al, G.R. No. L-1849, 25 Oct. 1949)
Requisites of Doctrine of Liberal Interpretation:
NOTE: Claims originating after the decedent’s
1. It applies solely to defects and imperfections in death, may be allowed as expenses of
the form or language of the attestation clause; administration which may be collected from the
administrator or executor personally or by motion
2. Bad faith, forgery, fraud, undue and improper in the testate or intestate proceedings without the
pressure and influence must be ruled out formality and limitation provided for money claims
insofar as the execution of the attestation clause against the decedent. (Herrera, 2005)
is concerned;
A money claim is only an incidental matter in the
3. The defects and imperfections in the form or main action for the settlement of the decedent’s
language shall be ignored and will not cause the estate. (Sheker v. Estate of Alice Sheker, G.R. No.
nullity of the will, if it is proved that the will was 157912, 13 Dec. 2007)
in fact executed and attested in substantial
compliance with Art. 805; and Notice to File Claims Against the Estate
4. The doctrine cannot be invoked in a Immediately after granting letters testamentary or

holographic will simply because it does not of administration, the court shall issue a notice
have an attestation clause. (Sebastian, 2015) requiring all persons having money claims against
the decedent to file them in the office of the clerk of
Once the Will is Admitted to Probate court. (Sec. 1, Rule 86, ROC, as amended)
1. The judge shall issue a certificate of allowance of Purpose of Presentation of Claims

the will, which must be signed by the judge and
attested by the seal of the court; The purpose is to protect the estate of the deceased.
2. The clerk must record and file the certificate of Further, its primary object is to apprise the
allowance; and administrator and the probate court of the existence
3. The will must be recorded in the register of of the claim so that a proper and timely
deeds of the province where the land is located. arrangement may be made for its payment in full or
(Sec. 13, Rule 76, ROC, as amended) by pro rata portion in the due course of the
administration. (Herrera, 2005)
4. CLAIMS AGAINST THE ESTATE
(RULE 86) Publication and Notice to Creditors
They are money claims of pecuniary nature which 1. The notice to creditors shall be published for
could have been enforced against the deceased in three (3) successive weeks in a newspaper of
his lifetime and could have been reduced to simple general circulation in the province.
money judgments.

2022 GOLDEN NOTES
Remedial Law
2. It shall also be posted for the same period in allowing said filing (Barredo v. CA, G.R. No. L-17863,
four (4) public places in the province and in two 28 Nov. 1962). The pendency of the action before the
(2) public places in the municipality where the regular courts was cited as a good excuse for the
decedent last resided. (Sec. 3, Rule 86, ROC, as tardiness of the claim. (Eschaus v. Blanco, G.R. No. L-
amended) 30453, 04 Dec. 1989)
Privity in Estate Reasons for the Rule
It denotes the privity between assignor and 1. To protect the estate of the deceased by
assignee, donor and donee, grantor and grantee, informing the executor or administrator of the
joint tenant for life and remainderman or claims against it, thus enabling him to examine
reversioner and their respective assignees, vendor each claim and to determine whether it is a
by deed of warranty and a remote vendee or proper one which should be allowed;
assignee. A privy in estate is one who derives his 2. Speedy settlement of affairs of deceased; and
title to the property in question by purchase; one 3. Early delivery of property to distributees,
who takes by conveyance. As successors-in-interest, legatees, or heirs. (Union Bank of the Philippines
they derive their right from and are in the same v. Santibanez, G.R. No. 149926, 23 Feb. 2005)
position as their predecessor in whose shoes they
now stand. (Constantino v. Heirs of Constantino, Jr., Statute of Non-claims
G.R. No. 181508, 02 Oct. 2013)
The statute of non-claims is the period fixed for the
Time within which Claims should be Filed; XPNs filing of claims against the estate, such that, claims
not filed within the said period are barred forever.
GR: It should be filed within the time fixed in the (De Leon & Wilwayco, 2020)
notice which shall not be less than 6 months nor
more than 12 months from the date of the first Guidelines as to the statute of non-claims are as
publication of the notice thereof. Such period when follows:
fixed by the probate court becomes mandatory and 1. The period fixed by probate court must not be
any action not filed within the period shall be barred less than 6 months nor more than 12 months
forever. (Sec. 2, Rule 86, ROC, as amended) from the date of the first publication of the
notice.
XPNs: 2. Such period once fixed by the court is
a. The creditor may apply with the court for a mandatory and it cannot be shortened. (Sec.
new period not exceeding one (1) month from 2, Rule 86, ROC, as amended)
the order allowing the same for just cause 3. The statute of non-claims supersedes the
(Sec. 2, Rule 86, ROC, as amended); and statute of limitations. (De Leon & Wilwayco
b. Creditor may set up his claim as a counterclaim 2020)
in the action filed by the executor or
administrator. (Sec. 5, Rule 86, ROC, as NOTE: The Statute of Non-claims provides that
amended) claims, whether it has prescribed or not, that are not
filed within said periods are barred forever. (De
NOTE: Acknowledgement by the testator of a Leon & Wilwayco 2020)
specific debt in his will does not relieve the creditor
from the duty of filing his claim in the testate or Effect of Statute of Non-claims
intestate proceeding. (Herrera, 2005)
The statue of non-claims effectively shortens the
The 1-month period does not commence from the statute of limitations as regards the right of action
expiration of the original period for filing claims. It to pursue the debtor is concerned. Still, before a
begins from the date of the order of the court creditor may go against the estate, the claim must

both within the statute of limitations and statute of now go for naught. The estate has thus waived its
non-claims. In short, the statute of limitations and right to have the claim re- litigated in the estate
statute of non-claims must both concur before a proceedings.
creditor may collect against the estate. (De Leon &
Wilwayco, 2020) Though presentment of probate claims is
imperative, it is generally understood that it may be
Q: A borrowed from B a sum of money in the year waived by the estate’s representative when the
1990 as evidenced by a written contract of loan. administrator failed to plead the statute of non-
A died in 2001. During the probate proceedings claims, and his active participation and resistance to
of A, the court ordered that all claims against the plaintiff’s claim in the civil suit for collection.
estate must be filed from June 2001 to January (Herrera, 2005)
2002. When B filed his claim on July 2001, the
court granted the same. Is the allowance of the XPNs to the Statute of Non-Claims
claim correct?
However, at any time before an order of distribution
A: NO. The period to collect has already prescribed. is entered, the court may, for cause shown and, on
When A died in 2001, the prescriptive period of 10 such terms, as are equitable, allow such claim to be
years from the time A borrowed money from B in filed within a time not exceeding one (1) month.:
1990 has already lapsed. Thus, even if the claim was
filed within the statute of non-claims, the statute of a. On application of a creditor who has failed to
limitations has already barred the filing of the claim. file his claim within the previously limited (Sec.
Q: The trial court admitted to probate the
holographic will of Alice and thereafter issued b. Creditor may set up his claim as a counterclaim
an order for all the creditors to file their in the action filed by the executor or
respective claims against the estate. Alan filed a administrator. (Sec. 5, Rule 86, ROC, as amended)
contingent claim for agent's commission due
him in the event of the sale of certain parcels of Claims that must be Presented under the Statute
land belonging to the estate and reimbursement of Non-claims
for expenses incurred. The executrix of the
estate moved for the dismissal of said money 1. All claims for money against the decedent,
claim against the estate on the grounds that Alan arising from contract, express or implied,
failed to attach a certification against non-forum whether due, not due, or contingent;
shopping. The trial court dismissed the case. Is 2. All claims for funeral expenses;
the trial court correct? 3. Expenses for the last sickness of the decedent;
or
A: NO. A money claim is only an incidental matter in 4. Judgment for money against the decedent. (Sec.
the main action for the settlement of the decedent's 5, Rule 86, ROC, as amended)
estate. Hence, Alan’s contingent money claim, not
being an initiatory pleading, does not require a NOTE: The enumeration is exclusive. (Festin, 2011)
certification against non-forum shopping. (Sheker v.
Estate of Alice O. Sheker, G.R. No. 157912, 13 Dec. Absolute Claim
2007)
It is one which, if contested between living persons,
Waiver of Statute of Non-claims would be the proper subject of immediate legal
action and would supply a basis of judgment for a
If the judgment in a civil case has become final, the sum certain. (Moran, 1980)
estate cannot be heard to say that the judgment
reached after a full-dress trial on the merits will

2022 GOLDEN NOTES
Remedial Law
Contingent Claim NOTE: The mortgage creditor can avail of only one
of the three remedies and if he fails to recover under
It is a conditional claim, which is subject to the that remedy, he cannot avail of any of the other two
happening of a future uncertain event. (Buan v. remedies. (Bachrach Motor Co., Inc., v. Icarangal, G.R.
Laya, G.R. No. L-7840, 24 Dec. 1957) No. L-45350, 29 May 1939)
It has reference to uncertainty of liability, and not to The rule reserves a right to the executor or
uncertainty of collection. (Gaskell v. Tan Sit, G.R. No. administrator of an estate to redeem a mortgaged or
18405, 23 Sept. 1922) pledged property of a decedent which the
mortgagee or pledge opted to foreclose, instead of
A deficiency judgment is a contingent claim and filing a money claim with the probate court, under
therefore must be filed with the probate court said Sec. 7 of Rule 86. While the redemption is
where the settlement of the deceased is pending, subject to the approval of the probate court, the
with the period fixed for the filing of the claims. exercise of the right is discretionary upon the said
(First National City Bank of New York v. Cheng Tan, executor or administrator and may not be ordered
G.R. No. L-14234, 28 Feb. 1962) by the probate court on its own motion.
(Manalansan v. Castaneda, G.R. No. L-43607, 27 June
NOTE: Taxes due and assessed after the death of the 1978)
decedent should not be presented in the form of a
claim. The court in the exercise of its administrative Claims Extinguished by Death vs. Actions which
control over the executor or administrator may Survive
direct him to pay such taxes. Moreover, heirs even
after distribution are liable for such taxes. (Vera v. CLAIMS
ACTIONS WHICH
Fernandez, G.R. No. L-31364, 30 Mar. 1979) EXTINGUISHED
SURVIVE
BY DEATH
Claims referred to in Sec. 5 of Rule 86 refer to claims Those claims which can
for the recovery of money which are not secured by Personal to either of be filed either against
a lien against the property of the estate. (Olave v. the parties. the estate or the
Canlas, G.R. No. L-12709, 28 Feb. 1962) executor.
Claim is not
NOTE: If the claim is secured, apply Sec. 7, Rule 86. extinguished by death
The claim can no but shall be prosecuted
Options Available to a Secured Creditor longer be prosecuted as a money claim
by reason of the death against the estate of the
1. Abandon or waive the mortgage and claim the of the party. deceased or against the
entire debt from the estate of the mortgagor as executor or
an ordinary claim; administrator.
e.g., legal separation,
2. Foreclose the mortgage judicially and if there is e.g., contractual money
annulment of marriage,
judgment for deficiency, he may file a claim claim, action to recover
declaration of nullity of
against the estate within the statute of non- real property
marriage
claims; or
NOTE: Claim for civil liability survives
3. Rely on the mortgage exclusively, foreclosing notwithstanding death of accused if the same may
the same judicially or extra judicially at any also be based on a source of obligation other than
time before it is barred by prescription without delict.
the right to claim for any deficiency. (Sec. 7, Rule
86, ROC, as amended) A separate civil action may be enforced either
against:

1. The estate of the accused, in case of a Claim of Executor or Administrator against the
contract; or Estate
2. The executor or administrator, in case of law,
quasi-contract, and quasi-delict. (De Leon & An executor or administrator who has a claim
Wilwayco, 2020) against the estate he represents is required to give
written notice to the court. The court shall then
GR: Death of either the creditor or the debtor does appoint a special administrator, who is vested with
not extinguish the obligation. Obligations are the same power and subjected to the same liability
transmissible to the heirs. as the general executor or administrator. (De Leon &
Wilwayco, 2020) (Sec. 8, Rule 86, ROC, as amended)
XPN: When the transmission is prevented by the
law, the stipulations of the parties, or the nature of The special administrator, shall in the adjustment of
the obligation. Only obligations that are personal or such claim, is subject to the same liability as a
are identified with the persons themselves are regular administrator or executor in the settlement
extinguished by death. of other claims.
Sec. 5 of Rule 86 expressly allows the prosecution of NOTE: This is one instance where a special
money claims arising from a contract against the administrator is appointed. The special
estate of a deceased debtor. What is extinguished is administrator will have authority to act only with
only the obligee’s action or suit filed before the respect to the claim of the regular administrator or
court, which is not then acting as a probate court. executor. (Regalado, 2008)
(Stronghold Insurance Company, Inc. v. Republic-
Asahi Glass Corp., G.R. No. 147561, 22 June 2006) How to File a Claim
When judgment in a civil case has become final and 1. Deliver the claim with the necessary vouchers
executory, execution is not the proper remedy to to the clerk of court;
enforce payment; claimant should present claim 2. Serve a copy thereof to the executor or
before probate court. (Domingo v. Garlitos, G.R. No. administrator;
L-18994, 29 June 1963) 3. If claim is founded on an instrument, it must be
attached to the claim and filed therewith;
If the defendant dies during the pendency of the 4. If the claim is due, an affidavit supporting such
action against him, the rule on substitution of claim must be filed which shall state:
parties under Sec. 16, Rule 3 will be followed and a. The amount justly due;
any adverse decision against him may be filed by the b. That no payments have been made
plaintiff as a claim against the estate. If none of the thereon which are not credited; and
heirs is willing to be substituted, the creditor has to c. That there are no offsets to the same.
procure the appointment of an executor or
administrator. 5. If the claim is not due or is contingent, it must
be supported by affidavits;
If a final judgment had already been rendered 6. When a person other than the claimant makes
against the decedent prior to his death, but without the affidavit, the reasons why it is not made by
levy on execution having been effected against his the claimant must be stated. (Sec. 10, Rule 86,
property, such judgment must also be filed as a ROC, as amended)
claim against the estate in the manner provided for
by this rule. If levy has already been made before his Answer of Executor or Administrator
death, execution shall proceed. (Sec. 7, Rule 39, ROC,
as amended) GR: Within 15 days after service of a copy of the
claim.

2022 GOLDEN NOTES
Remedial Law
XPN: The court, in its discretion, may extend such If the executor or administrator has a claim against
time. the estate, he shall give notice to the court in writing
and the court shall thereafter appoint a special
The answer shall either specifically admit or deny administrator. (Sec. 8, Rule 86, ROC, as amended)
the claim and setting forth the substance of the
matters which are relied upon to support the This is one of the instances where a special
admission or denial. administrator is appointed. The special
administrator will have authority to act only with
The executor or administrator shall further allege in respect to the claim of the regular administrator or
offset any claim which the decedent before death the executor. (Regalado, 2008)
had against the claimant. Failure to do so shall bar
the claim forever. (Sec. 10, Rule 86, ROC, as amended) From an estate proceeding perspective, the Special
(2002 & 2009 BAR) Administrator’s commission is no less a claim
against the estate than a claim that third parties may
Appeal of Judgment make. Sec. 8, Rule 86 of the Rules recognizes this
when it provides for “Claim of Executor or
The judgment of the court approving or Administrator against an Estate.” Under Sec. 13 of
disapproving the claim is appealable as in ordinary the same Rule, the action of the court on a claim
cases. against the estate is “appealable as in ordinary
cases”. Hence, by express terms of the Rules, the
The mode of appeal is record on appeal and must be ruling on the extent of the Special Administrator’s
filed within 30 days from notice of judgment. (Sec. commission is appealable. (Briones v. Henson-Cruz,
13, Rule 86, ROC, as amended) G.R. No. 159130, 22 Aug. 2008)

Procedure in Filing Claims
Deliver the claim with necessa:ryvouchers 1Dthe clerk of court
I
•
Serve a copy on the executnr/administratnr I
+ +
Claim is due: Supported by affidavit stating the Claim is not due oris c:ontingent:
amount due and the fact that no payments have Supported by affidavit stating the
been made thereon oroffirets particulars thereof
I I
+
Execulnr/ AdminislratDrmustfile his answer In the claim within 15 days after service ofa copy of the claim
Service of answer ID the claimant
IClaim admitted
I
entirely I Claim contested
urt;. in its discretion. ord Court may approve it

that known heir.i, devisees. without hearing
legatees be
+ Trial
Hthere is opposition. 15 days 1D
file an answer
Claim may be referred ID

commissioner
Appeal: Record OD appeal-

filed within 30 days from
notice of judgment
5. PAYMENT OF DEBTS OF THE ESTATE Requisites before Executor or Administrator

(RULE 88) may Pay the Money Claims
1. Hearing;
If after hearing all the money claims against the 2. Amounts of such claims are ascertained; and
estate and after ascertaining the amount of such 3. Sufficient assets to pay the debt
claims, it appears that there are sufficient assets in
the estate to pay the debts, the executor or NOTE: A writ of execution is not the proper
administrator shall pay the same for the time procedure to satisfy debts. The court must order the
limited for that purpose. (Sec. 1, Rule 88, ROC, as sale or mortgage of the properties of the decedent,
amended) the proceeds of which will satisfy the debts and

2022 GOLDEN NOTES
Remedial Law
expenses. (Aldamiz v. Judge of CFI of Mindoro, G.R. 2. The sale of such personal property would be
No. L-2360, 29 Dec. 1949) detrimental to the participants of the estate
(ibid.);
Order of Preference for Payment of Debts
3. The sale of personal property may injure the
GR: The payment of the debts of the estate must be business or other interests of those interested
taken from the following order: in the estate (Sec. 2, Rule 89, ROC, as amended);
1. Portion or property designated in the will; 4. The testator has not made sufficient provision
2. Personal property not disposed of by will; and for payment of such debts, expenses or legacies
3. Real property not disposed of by will. (Sec. 3, (ibid.);
5. The decedent was, in his lifetime, under
XPN: The Court, on petition of interested persons, contract, binding in law, to deed real property,
may modify such order of disposition. or interest therein to a beneficiary (Sec. 8, Rule
Personal Estate first Chargeable for Debts
6. The decedent during his lifetime held real
Under Sec. 3, Rule 86, the personal estate of the property in trust for another person. (Sec. 9,
deceased not disposed of by will shall first be Rule 89, ROC, as amended)
chargeable with the payment of debts and expenses.
Without notice and hearing the sale, mortgage or
Use of Proceeds from Sale of Personal Property encumbrance is void because the heirs are the
presumptive owners. Since they succeed to all the
The court may order the whole or part of the rights and obligations of the deceased from the
personal estate to be sold if necessary: moment of the latter’s death, they are the persons
directly affected by the sale or mortgage therefore
1. To pay the debts and expenses of they cannot be deprived of the property, except in
administration; the manner provided by law. (Maneclang v. Baun,
2. To pay legacies; and G.R.No. L-27876, 22 Apr. 1992)
3. To cover expenses for the preservation of the
estate. (Sec. 1, Rule 89, ROC, as amended) NOTE: Under Sec. 8 of Rule 89, such conveyance
shall not be allowed when notice of the application
When Real Estate is Charged for Debts, Sold, was not given to persons interested; or if the assets
Mortgaged or Encumbered even though in the hands of the executor or administrator will be
Personal Estate is Not Exhausted reduced so as to prevent a creditor from receiving
his full debt or diminish the dividend.
Upon application of the executor or administrator
with written notice to heirs and other persons How to Prevent Authority to Sell, Mortgage or
interested residing in the Philippines, and after Encumber Property of the Estate
hearing, real properties shall be liable for debts and
expenses, or may be sold mortgaged or otherwise The authority to sell, mortgage or otherwise
encumbered for that purpose upon order of the encumber real or personal property shall not be
court if: granted if any person interested in the estate gives
a bond in the sum fixed by the court conditioned to
1. The personal property is not sufficient to pay pay the debts, expenses of administration and
the debts, expenses of administration and legacies. (Sec. 3, Rule 89, ROC, as amended)
legacies (Sec. 3, Rule 88, ROC, as amended);
NOTE: If the opposition to the sale is based on the

fact that the oppositor claims title to the property to The only instance wherein a creditor can file an
be sold, the court will hold in abeyance the authority action against a distributee of the debtor’s assets is
to sell such property until the issue of ownership under Sec. 5 of Rule 88. The contingent claims must
has been settled in an ordinary action, since the first have been established and allowed in the
probate court generally has no jurisdiction to probate court before the creditors can file an action
resolve issues of ownership in the administration directly against the distributee. (De Bautista v. De
proceedings. (Pio Barreto Realty Dev., Inc. v. CA, G.R. Guzman, G.R. No. L-28298, 25 Nov. 1983)
Nos. 62431-33, 31 Aug. 1994)
Court to Fix Contributive Shares of Heirs,
Payment of Contingent Claims Devisees or Legatees
If the court is satisfied that a contingent claim duly This applies where devisees, legatees, or heirs have
filed is valid, it may order the executor or entered into possession of the portions of the estate
administrator to retain in his hands sufficient estate before the debts and expenses have been settled
to pay such contingent claim when the same and paid and have become liable to contribute for
becomes absolute, or if the estate is insolvent, the payment of such debts and expenses.
sufficient estate to pay a portion equal to the
dividend of the other creditors. (Sec. 4, Rule 88, ROC, In such case, the court, after hearing, may settle the
as amended) amount of their several liabilities, and order how
much and in what manner each person shall
Requisites: (F-A-V) contribute, and may issue execution as
circumstances require. (Sec. 6, Rule 88, ROC, as
1. Duly Filed within the 2-year period allowed for amended)
creditors to present their claims;
2. The claim is Valid; and NOTE: This is one of the instances where the court
3. The claim becomes Absolute. (Sec. 5, Rule 88, may issue a writ of execution. (Ibid.)
ROC, as amended)
Even after partition, devisees, legatees, or heirs
NOTE: If the contingent claim is not presented shall be liable individually for the payment of all
within the two (2)-year period after it becomes lawful outstanding claims against the estate in
absolute, the assets retained in the hands of the proportion to the amount or value of the property
executor or administrator, not exhausted in the they have respectively received from the estate.
payment of claims, shall be distributed by the order (Herrera, 2005)
of the court to the persons entitled to the same (Sec.
4, Rule 88, ROC, as amended). However, the assets so Order of Payment if Estate is Insolvent or Assets
distributed may still be applied to the payment of are Insufficient
the claim when established, and the creditor may
maintain an action against the distributees to The executor or administrator shall pay the debts
recover the debt, and such distributees and their according to the concurrence and preference of
estates shall be liable for the debt in proportion to credits provided by Arts. 1059 and 2239 to 2251 of
the estate they have respectively received from the the NCC. (Sec. 7, Rule 88, ROC, as amended)
property of the deceased. (Sec. 5, Rule 88, ROC, as
amended) Disposition of Estate in the Philippines of an
Insolvent Non-resident
If the contingent claim matures after the expiration
of the two (2)-year period, the creditors may sue the The estate found in the Philippines shall be disposed
distributees, who are liable in proportion to the of in a manner where his creditors in and outside
shares in the estate respectively received by them. the Philippines may receive an equal share, in
(Jaucian v. Querol, G.R. No. L-11307, 05 Oct. 1918) proportion to their respective credits. (Sec. 9, Rule

2022 GOLDEN NOTES
Remedial Law
88, ROC, as amended) interested in the estate (Ibid);
Claims that have been duly proven in another 3. Where a testator has not otherwise made
country against the estate of an insolvent who was sufficient provision for the payment of such
at the time of his death an inhabitant of the debts, expenses, and legacies (Ibid);
Philippines, and that the executor or administrator
in the Philippines had knowledge of the 4. When it appears that the sale of the whole or a
presentation of such claims in such country and an part of the real or personal estate, will be
opportunity to contest their allowance, may be beneficial to the heirs, devisees, legatees, and
added to the list of claims proved against the other interested persons (Sec. 4, Rule 89, ROC, as
decedent in the Philippines and the estate will be amended);
distributed equally among those creditors. (Sec. 10,
Rule 88, ROC, as amended) 5. Where the deceased was in his lifetime under
contract, binding in law, to deed real property,
Principle of Reciprocity or an interest therein (Sec. 8, Rule 89, ROC, as
amended); and
The benefits in Secs. 9 and 10 shall not be extended
to the creditors in another country if the property of 6. Where the deceased in his lifetime held real
such deceased person there found is not equally property in trust for another person. (Sec. 9,
apportioned to the creditors residing in the Rule 89, ROC, as amended)
Philippines and the other creditors, according to
their respective claims. (Sec. 10, Rule 88, ROC, as NOTE: The disposal of estate property requires
amended) judicial approval before it could be executed.
Implicit in the requirement for judicial approval
6. SALES, MORTGAGES, AND OTHER was that the probate court could rescind or nullify
ENCUMBRANCES OF PROPERTY OF DECEDENT the disposition of a property under administration
(RULE 89) that was effected without its authority. (Spouses
Lebin v. Mirasol, G.R. No.164255, 07 Sept. 2011)
Order of Sale of Personal Property
Interested Persons
The court, upon the application of the executor or
administrator, and on written notice to the heirs No such authority to sell mortgage, or otherwise
and other persons interested, may order the whole encumber real or personal estate shall be granted if
or a part of the personal estate to be sold, if it any person interested in the estate gives a bond, in
appears necessary for the purpose of paying debts, a sum to be fixed by the court, conditioned to pay
expenses of administration, or legacies, or for the the debts, expenses of administration, and legacies
preservation of the property. (Sec. 1, Rule 89, ROC, as within such tune as the court directs; and such bond
amended) shall be for the security of the creditors, as well as of
the executor or administrator, and may be
Instances when Real Properties may be Ordered prosecuted for the benefit of either. (Sec, 3, Rule 89,
Sold, Mortgaged, or Encumbered ROC, as amended)
1. When the personal estate of the deceased is not If third persons oppose an application for leave to
sufficient to pay the debts, expenses of sell the property of the decedent, claiming title to
administration, and legacies (Sec. 2, Rule 89, the property, the title claim, cannot be adjudicated
ROC, as amended); by the probate court, but it can hold approval of the
sale in abeyance until the question of ownership
2. Where the sale of such personal estate may shall have been decided in a proper action. (Pio
injure the business or other interests of those Barretto Realty Dev., Inc. v. CA, G.R. No. 62431-33, 31

Aug. 1984) NOTE: If the administrator or executor sells

property of the estate without the requisite
Regulations for Granting Authority to Sell, authority of the court, such sale is null and void.
Mortgage or otherwise Encumber Estate (Godoy v. Orellano, G.R. No. L-16584, 17 Nov. 1921)
1. The executor/administrator shall file written This rule applies to the sale of immovable property
petition setting forth: of the estate, although the rules do not specifically
a. Debts due from deceased, expenses for so provide, as such authority is vested in a probate
administration, legacies; court. (Manotok Realty, Inc. v. CA, et.al., G.R. No. L-
b. Value of personal estate; 35367, 09 Apr. 1987)
c. Situation of estate to be sold, mortgaged,
encumbered; and Deed of Sale, Mortgage or Encumbrance
d. Such other facts showing that the sale
etc., mortgage, or other encumbrance is The deed executed by the executor or administrator
necessary or beneficial. shall be valid as if executed by deceased in his
lifetime. (Sec 7-8, Rule 89, ROC, as amended)
2. The court shall thereupon fix a time and place
for hearing such petition, and cause notice NOTE: For sales contracted by the decedent during
stating: his lifetime, Sec. 8, Rule 89 applies. In such cases, the
a. The nature of the petition; court having jurisdiction of the estate may, on
b. The reason for the same; and application for that purpose, authorize the executor
c. The time and place of hearing or administrator to convey such property according
to such contract, or with modifications as are agreed
To be given personally or by mail to the persons upon by the parties and approved by the court. (Liu
interested, and may cause such further notice to v. Loy, G.R. No. 145892, 13 Sept. 2004; ROC, as
be given, by publication or otherwise, as it shall amended)
deem proper.
7. DISTRIBUTION AND PARTITION (RULE 90)
3. The court may require the executor or
administrator shall give an additional bond, in Liquidation
such sum as the court directs, conditioned that
such executor or administrator will account for Liquidation means the determination of all assets of
the proceeds of the sale, mortgage, or other the estate and payment of all debts and expenses.
encumbrance.
NOTE: The probate court loses jurisdiction over the
4. The court may authorize sale to be public or settlement proceedings only upon payment of all
private. debts and expenses of the obligor and delivery of
the entire estate to all the heirs. (Guilas v. Judge of
5. If estate is to be sold at auction, mode of giving CFI of Pampanga, G.R. No. L- 26695, 31 Jan. 1972)
notice shall be governed by provisions
concerning notice of execution sale. Two (2) Requisites Before the Distribution of
the Estate
6. A certified copy of the order of the court,
together with the deed of the executor or 1. Liquidation; and
administrator for such real estate shall be 2. Declaration of heirs (Sec. 1, Rule 90, ROC, as
recorded in the registry of deeds of the province amended)
in which the real estate thus sold, mortgaged, or
otherwise encumbered is situated. (Sec. 7, Rule

2022 GOLDEN NOTES
Remedial Law
When Order for Distribution of Residue Made Decree of Distribution

(2002 BAR)
A decree of distribution of the estate of a deceased
GR: Distribution of the residue to persons entitled person vests the title to the land of the estate in the
thereto after notice and hearing and after payment distributees, which, if erroneous may be corrected
of: (D-E-F-A-I) by a timely appeal. Once it becomes final, its binding
effect is like any other judgment in rem.
1. Debts;
2. Expenses of administration; However, in exceptional cases, a final decree of
3. Funeral charges; distribution of the estate may be set aside for lack of
4. Allowance to widow; and jurisdiction or fraud. (Ancheta v. Guersey-Dalaygon,
5. Inheritance tax. (Sec. 1, Rule 90, ROC, as G.R. No. 139868, 08 June 2006)
amended)
A party interested in a probate proceeding may
XPN: Distribution before payment of obligations have a final liquidation set aside when he is left out
provided distributees give a bond fixed by the court by reason of circumstances beyond his control or
conditioned for payment thereof within such time through mistake or inadvertence not imputable to
as court directs. negligence. (Vda. De Alberto v. CA, G.R. No. L-29759,
18 May 1989)
NOTE: The order that determines distributive share
is appealable. Title to property is vested from However, where the order closing the intestate
finality of the order of distribution. (Herrera, 2005) proceedings was already final and executory, the
same cannot be reopened on a motion therefore
Process for the Distribution of the Residue of the filed after the lapse of the reglementary period.
Estate (Divinagracia v. Rovira, G.R. No. L-42615, 10 Aug.
1976)
The net estate of the decedent must be ascertained,
by deducting all payable obligations and charges Declaration of Heirship
from the value of the property owned by the
deceased at the time of his death; then, all donations The declaration of heirs is undertaken to determine
subject to collation would be added to it. With the to whom the residue of the estate should be
partible estate thus determined, the legitime of the distributed. The declaration is made in the same
compulsory heir or heirs can be established; and proceeding, a separate action for the declaration of
only then can it be ascertained whether or not a heirs not being the proper recourse. (De Leon &
donation had prejudiced the legitimes. (Heirs of Wilwayco, 2020)
Doronio v. Heirs of Doronio, G.R. No. 169454, 27 Dec.
2007) NOTE: The probate court has the power to entertain
the question of whether or not a person is an
NOTE: Even if the testator stated in his will that he acknowledged natural child of the decedent. Thus,
owes a certain person and ordered that the same be an action for recognition of a natural child may be
paid, if the estate is insolvent, the creditor shall not instituted and decided in the proceeding for the
enjoy priority over other claimants. The provision in settlement of the estate of the ancestor. However, an
the will should only establish the claim of the adoption decree cannot be assailed in the
creditor against the estate. He must still file his settlement of the estate of the ancestor. (Herrera,
claim according to Sec. 9, Rule 86 and must comply 2005)
with the statute of non-claims. (Ibid.)
A claim of status as heir of a decedent must always
be substantially supported by evidence as required
under our law. Not all rights to property and

incidents thereof, ought to be preceded by a Project Partition

declaration of heirship. (Heirs of Valentin Basbas v.
Basbas, G.R. No. 188773, 10 Sept. 2014) It is a document prepared by the executor or
administrator setting forth the manner in which the
Court may Make a Declaration of Heirship even estate of the deceased is to be distributed among the
Before the Payment of Obligations heirs. (Solivio v. CA, G.R. No. 83308, 12 Feb. 1990)
This provision is NOT mandatory because it is the The finality of the approval of the project of
distribution of the residue of the estate, before its partition by itself alone does not terminate the
obligations are paid, which the court is enjoined to probate proceeding. As long as the order of the
do but not the declaration of heirs prior to the distribution of the estate has not been complied
satisfaction of these obligations. with, the probate proceedings cannot be deemed
closed and terminated. (Estate of Ruiz v. CA, G.R. No.
Q: Leoncia, who died intestate, was survived by 118671, 29 Jan. 1996)
her husband Buenaventura and their five
children. However, only Buenaventura, The probate court may require the executrix to
Remegio, Victoria, Dionisia, and Paciencia present a project of partition to better inform itself
executed an Extrajudicial Partition that covered of the condition of the estate to be distributed and
the two properties of Leoncia to the exclusion of so facilitate the prompt distribution thereof. (Reyes
Rodrigo's heirs. Rodrigo was already deceased v. Reyes de llano, G.R. No. L-42092, 28 Oct. 1936)
at the time of partition. Forty years after the
execution of the Extrajudicial Partition, the NOTE: Project of partition is not mandatory.
heirs of Rodrigo (his wife, Josefina and daughter, (Herrera, 2005)
Zenaida) and Melanio Cayabyab (Melanio), who
claimed to be the son of Leoncia, filed a An appeal from an order of execution, which
Complaint for Annulment of the Extrajudicial although generally not appealable, may be allowed
Partition and all transactions resulting if the Project of Partition submitted to implement
therefrom. Is the extra-judicial partition valid? the decision was not in accordance with the final
If yes, should the determination of heirs be decision in the case. However, seeking an order
made in a separate proceeding? from the court to allow the petitioner to present
evidence with regard to the properties comprising
A: NO. At the time of the execution of the the estate of the deceased and the heirs who are to
Extrajudicial Partition, Zenaida was only eight (8) share in the inheritance is, in effect an appeal from
years old and she, together with Melanio, was a decision which has long become final and
neither aware, nor notified of the Extrajudicial executory, and not from an order of execution which
Partition. Furthermore, unless there is a pending is yet to be carried out, thru a Project of Partition
special proceeding for the settlement of the still to be submitted to and approved by the court.
decedent's estate or for the determination of (Torres v. Aruego, G.R. No. 201271, 20 Sept. 2017)
heirship, the compulsory or intestate heirs may
commence an ordinary civil action to declare the Right of an Heir over the Property of the
nullity of a deed or instrument and for recovery of Decedent
property, or any other action in the enforcement of
their ownership rights acquired by virtue of Although the right of an heir over the property of
succession, without the necessity of a prior and the decedent is inchoate, as long as estate has not
separate judicial declaration of their status as such. been fully settled and partitioned, the law allows the
(Navarro v. Harris, G.R. No. 228854, 17 March 2021) co-owner to exercise the rights of ownership over
such inchoate right.
Before partition, the heirs become co-owners of the

2022 GOLDEN NOTES
Remedial Law
property they inherited subject to the payment of property that is part of the estate without the prior
debts of the deceased. (Mendoza v. CA, G.R. No. 4464, authority of the Court. (Silverio, Jr. v. CA, G.R. No.
31 July 1991) 178933, 16 Sept. 2009)
During the pendency of the estate proceedings A probate court has the power to enforce an
without the prior approval of the probate court, an accounting as a necessary means to its authority to
heir has the right to sell his undivided or ideal share determine the properties included in the inventory
of the estate, he being the co-owner with other heirs of the estate to be administered, divided up, and
of the estate. Court approval is necessary only if distributed. Beyond this, the determination of title
specific property of the estate is sold. (Heirs of Pedro or ownership over the subject shares may be
Escanlar v. CA, G.R. No. 119777, 23 Oct. 1997) conclusively settled by the probate court as a
question of collation or advancement. (Reyes v. RTC
Partial Distribution Makati, Branch 142, G.R. No. 165744, 11 Aug. 2008)
A partial distribution of the decedent’s estate Power to Issue Writ of Possession

pending the final termination of the testate or
intestate proceedings should as much as possible be The probate court has the authority to order the
discouraged by the courts, and unless in extreme issuance of a writ of possession for the recovery of
cases, such form of advances of inheritance should the share by the heir or other interested person
not be countenanced. from the executor or administrator or other persons
having possession of the property without the need
RATIO: Courts should guard with utmost zeal the of previous demand. (Herrera, 2005)
estate of the decedent to the end that creditors be
adequately protected, and rightful heirs assured of Remedy of an Heir Entitled to Reside but not
their shares in the inheritance. Given Share
The order of partial distribution appealed from is 1. Motion to Set Aside the Distribution – If an
unwarranted. Firstly, because it was prematurely heir appears after the court approved the
issued, the period for the presentation of claims not project of partition, the heir must file a motion
having as yet elapsed; and secondly, because no to set aside the distribution with the court so
bond was fixed by the court as a condition that the court will not proceed with the
precedent to the partial distribution ordered by it. distribution of the residue. The probate court
(Gatmaitan v. Medina, G.R. No. L-14400. 05 Aug. shall determine whether such heir has a right to
1960) participate in the distribution of the residue. If
it is proven that the heir has a right, the court
Jurisdiction of Probate Court may order the revision of the project of
partition for its adjustment.
The court shall have the following powers in the
distribution and partition of the estate: 2. Motion to Deliver Share – If the heir was not
excluded from the proceedings but was not able
1. Collate; to receive his share.
2. Determine heirs; and
3. Determine the shares of each heir. (Herrera, 3. Motion for the Reopening of the Settlement
2005) Proceedings – If the distribution has already
been made, a motion for closure has already
Once an action for the settlement of estate is filed been granted, the heir must file a motion for the
with the court, the properties included therein are reopening of the settlement proceedings within
under the control of the estate court. And not even the reglementary period, provided the order of
the administrator may take possession of any closure has not yet become final and executory.

The period is within 30 days from the date the 2. To enforce payment of the expenses of
order of closure of the administration Partition; (Sec. 3, Rule 90, ROC, as amended);
proceeding was served on the executor or and
administrator. (Divinagracia v. Rovira, G.R. No.
L-42615, 10 Aug. 1976) 3. To satisfy the costs when a person is cited for
Examination in probate proceedings. (Sec. 13,
NOTE: When motion to intervene is made by Rule 142, ROC, as amended)
illegitimate children, there must be proof
beyond allegations in such motion to show the 4. To enforce the conveyance lands which
interest of the private movants. In the absence deceased held in Trust (Sec. 9, Rule 90, ROC, as
thereof, the action taken by the judge allowing amended)
said intervention could be considered
premature. (Jerez v. Nietes, G.R. No. L-26876, 27 When Court Loses Jurisdiction
Dec. 1969)
Probate court loses jurisdiction of an estate under
4. Petition for the Reopening of the Settlement administration only after payment of all debts and
Proceedings – Although closed and terminated, delivery of remaining estate to heirs entitled to
the preterited heir who was excluded from the receive the same. (Guilas v. Judge of CFI of
settlement proceedings can still file a petition to Pampanga, G.R. No. L- 26695, 31 Jan. 1972)
reopen within a period of 10 years. (Art. 1144,
NCC; Solvino v. CA, G.R. No. 83484, 12 Feb. 1990)
B. ESCHEAT
5. Accion Reivindicatoria – If the order of closure (Rule 91)
has already become final and executory, the
remedy is to file an independent suit against the
parties and all the other heirs for his/her share.
Nature of Proceedings
(Nunal v. CA, G.R. No. 94005, 06 Apr. 1993)
A proceeding whereby the State, by virtue of its
Instances when Probate Court may Issue Writ of
sovereignty, steps in and claims the real and
Execution
personal property of a person who dies intestate
leaving no heir. (De Leon & Wilwayco, 2020)
GR: Probate court cannot issue writs of execution.
Principle behind the Rule
NOTE: Execution is not the proper remedy to satisfy
an approved claim because payment approving the
Escheat proceedings rest on the principle of
claim does not create a lien upon the property of the
ultimate ownership by the State of all property
estate.
within its jurisdiction. (De Leon & Wilwayco, 2020)
The proper procedure is for the court to order the

Three (3) Kinds of Escheat
sale of the property of the deceased to satisfy the
claim, and in case of refusal to comply with the
1. Intestate leaving no heir – When a person dies
order, the court may cite him in contempt. (De Leon
intestate leaving no heir but leaving real or
& Wilwayco, 2020)
personal property within the Philippines (Sec.
1, Rule 91, ROC, as amended);
XPNs: (D-E-P-T)
1. To satisfy the Distributive shares of the
2. Reversion – Actions for reversion of properties
devisees, legatees and heirs in possession of
alienated in violation of the Constitution or
the decedent’s assets (Sec. 6, Rule 88, ROC, as
statute (Sec. 5, Rule 91, ROC, as amended);
amended);

2022 GOLDEN NOTES
Remedial Law
NOTE: The proceedings must be instituted in Who may File

the province where the land lies in whole or in
part. It may be instituted as a consequence of a The Solicitor General or his representative in behalf
violation of Art. XIII of the 1935 Constitution of the Republic of the Philippines may file a petition.
which prohibits transfers of private agricultural (Sec. 1, Rule 91, ROC, as amended)
land to aliens. (Rellosa v. Gaw Chee Hun, G.R. No.
L-1411, 29 Sept. 1953) In all actions for the reversion to the Government of
lands of the public domain or improvements
However, reversion will not be allowed even if thereon, the Republic of the Philippines is the real
the original buyer was an alien, if later on the party in interest. The action shall be instituted by
title to the property was transferred by the Solicitor General or the officer acting in his
succession to the buyer’s heirs who are stead, in behalf of the Republic of the Philippines
qualified parties, i.e., Philippine citizens. (Director of Lands v. Lim, et al., G.R. No. L-4372, 30
(Republic v. Registry of Deeds of Roxas City, G.R. Apr. 1952).
No. 158230, 16 July 2008)
Where Filed
3. Unclaimed balances – Dormant accounts for ten
(10) years. (Unclaimed Balances Act, Act 3936, as It may be filed with the RTC of the province where
amended by P.D. No. 679) the deceased last resided or in which he had estate,
if he was a non-resident. (Sec. 1, Rule 91, ROC, as
NOTE: An action to recover unclaimed balances amended)
shall be commenced by the Solicitor General in
an action for escheat in the name of the People of Assignment of Property Escheated
the Philippines in the RTC of the province where
the bank is located, in which shall be joined as 1. If personal property, to the municipality or city
parties the bank and such creditors or where he last resided in the Philippines;
depositors. (Republic v. Pres. Roxas Rural Bank, 2. If real property, to the municipality or city
Inc., G.R. No. L-30381, 30 Aug. 1988) where the property is situated in the
Philippines;
Requisites for Filing of Petition 3. If deceased never resided in the Philippines, to
the municipality or city where the property may
1. A person died intestate; be found. (Sec. 3, Rule 91, ROC, as amended)
2. He left no heirs or persons by law entitled to the
same; and Purpose
3. He left properties in the Philippines. (Sec. 1, Rule
91, ROC, as amended) The estate assigned shall be for the benefit of public
schools, and public charitable institutions and
Declaration that a Person is Presumptively Dead centers, in such municipalities or cities. The court
in Escheat Proceedings shall distribute the estate as the respective needs of
each beneficiary. (Sec. 3, Rule 91, ROC, as amended)
The courts are not barred from declaring an
absentee presumptively dead as an incident of, or in Escheat Cannot be Converted into Settlement of
connection with, an action or proceeding for the Estate
settlement of the intestate estate of such absentee.
(De Leon & Wilwayco, 2020; Tan v. City of Davao, G.R. The jurisdiction acquired cannot be converted into
No. L-44347, 29 Sept. 1988) one for the distribution of the properties of the said
decedents. For such proceedings (for the
distribution of the estate of the decedents) to be
instituted, the proper parties must be presented,

and the proceedings should comply with the NOTE: A respondent may file a motion to
requirements of the Rules. Hence, the RTC did not dismiss for failure to state a cause of action,
have the power to order, or to proceed with, the where the petition does not state facts which
distribution of the estates of the decedents in these entitle petitioner to the remedy prayed for. (De
escheat proceedings and adjudicate the properties Leon & Wilwayco, 2020; GoPoco Grocery v.
to the oppositors. (De Leon & Wilwayco, 2020; Pacific Biscuit, G.R. Nos. 43697 and 44200, 31
Municipality of Magallon v. Bezore, G.R. No. L- 14157, Mar. 1938)
26 Oct. 1960)
2. File a claim for the escheated property within
NOTE: The burden of proof rests on the State to five (5) years from the date of judgment. (Sec. 4,
prove that the property in question is in all respects Rule 91, ROC, as amended)
liable to escheat. (Herrera, 2005)
Who may File a Claim
How Court Acquires Jurisdiction
1. A devisee, legatee, heir, widow, widower, or
The court acquires jurisdiction to hear the petition other person entitled to such estate (Sec. 4, Rule
for escheat by virtue of publication of the petition 91, ROC, as amended)
for escheat. (Sec. 2, Rule 91, ROC, as amended)
2. Any person alleged to have a direct right or
NOTE: The court where the escheat proceeding is interest in the property sought to be escheated,
pending cannot allow the filing of a claim against the likewise an interested and necessary party. (De
estate when it has not acquired jurisdiction. (Divino Leon & Wilwayco, 2020; Municipal Council of San
v. Hilario, G.R. No. 44658, 24 Jan. 1936) Pedro Laguna v. Colegio de San Jose, G.R. No. L-
45460, 25 Feb. 1938)
Notice of Hearing and Publication thereof
Waiver of Right to Escheat
The publication of the notice of hearing shall be at
least once a week for six (6) consecutive weeks in a It may be waived, either expressly or impliedly.
newspaper of general circulation in the province. Hence, when the right to escheat claimed by the
(Sec. 2, Rule 91, ROC, as amended) municipality has existed long prior to the
registration proceedings, and, as the same has not
This is a jurisdictional requirement, non- been asserted in said proceedings, it is deemed to
compliance with which affects the validity of the have been completely waived. (De Leon & Wilwayco,
proceedings. (De Leon & Wilwayco, 2020; Divino v. 2020; Roman Catholic Archbishop of Manila v. Monte
Hilario, G.R. No. 44658, 24 Jan. 1936) de Piedad, G.R. No. L-45496, 05 May 1939)
All interested parties, especially the actual occupant Period for Filing a Claim (2002 BAR)
and adjacent lot owners, shall be personally notified
of the proceedings and given the opportunity to If a devisee, legatee, heir, widow, widower, or other
present their valid claims, otherwise the property person entitled to such estate appears and files a
will be reverted to the State. (De Leon & Wilwayco, claim thereto with the court within five (5) years
2020; citing Tan v. City of Davao, G.R. No. L-44347, 26 from the date of such judgment, such person shall
Sept. 1988) have possession of and title to the same, or if sold,
the municipality or city shall be accountable to him
Remedies of Respondent against Petition for the proceeds after deducting reasonable charges
for the care of the estate; but a claim not made
1. File a motion to dismiss, which, in such case, within the said time shall be forever barred. (Sec. 4,
plays the role of a demurrer to evidence. Rule 91, ROC, as amended)
(Herrera, 2005)

2022 GOLDEN NOTES
Remedial Law
NOTE: Sec. 4 Rule 91 of the Rules of Court and its A trust relation in which one person called a
counterpart Art. 1014 of the New Civil Code are not “guardian” acts for another called a “ward” whom
in harmony. However, it is Art. 1041 which must the law regards as incapable of managing his own
prevail and not the Rules of Court. The former is a affairs. (De Leon & Wilwayco, 2020)
substantive law and the latter is only procedural
which must yield to the former should the Basis of Guardianship
discrepancies arise in particular cases. (Pineda,
2009) “Parens patriae” – The State has the duty of
protecting the rights of persons or individuals who,
Art. 1014 of the Civil Code v. Sec. 4, Rule 91 because of age or incapacity, are in an unfavorable
position vis-à-vis other person. (Herrera, 2005)
ART. 1014 SEC. 4, RULE 91
Filed within 5 years Purpose of this Rule
Filed within 5 years
from the date the
from the date of To safeguard the rights and interests of minors and
property is delivered
judgment incompetent persons. Courts should be vigilant to
to the State
Filed by devisee, see that the rights of such persons are properly
Persons who may file legatee, heirs, widow protected. (De Leon & Wilwayco, 2020)
are not specifically or widower or other
stated person entitled to such Kinds of Guardian
estate
1. According to scope:
If property is sold, the Proceeds shall be
proceeds shall be accounted for after
a. Guardian of the person – has been
accounted for except deducting reasonable
lawfully invested with the care of the
the proceeds lawfully charges of care of
person of the minor or incompetent;
spent estate
b. Guardian of the property – appointed to

have the management of the estate of a
C. GUARDIANSHIP
minor or incompetent; or
(Rule 93)
c. General guardian – appointed to have the
care and custody of the person and of all
Guardianship the property of the ward.
It is the power of protective authority given by law 2. According to constitution:

and imposed in an individual who is free and in the
enjoyment of his rights, over one whose weakness a. Legal guardian – a guardian by provision
on account of his age or other infirmity which of law without the need of judicial
renders him incapable to protect himself. (Herrera, appointment, as in the case of parents over
2005) the persons of their minor children, or the
father, or in his absence, the mother (the
Guardian parent shall only furnish the necessary
bond if the property of minor child
A guardian is a person in whom the law has exceeds P50,000);
entrusted the custody and control of the person or
estate or both of an infant, insane, or other person b. Guardian ad litem – any competent
incapable of managing his own affairs. (De Leon & person appointed by the court to
Wilwayco, 2020) prosecute or defend a minor or

incompetent in an action in court; Where Filed
c. Judicial guardian – a competent person 1. In the RTC of the province where the
appointed by the court over the person or incompetent resides; or
property of the ward to represent the 2. If he resides in a foreign country, in the RTC of
latter in all his civil acts and litigations. the province wherein his property or part
(Herrera, 2005; De Leon & Wilwayco, 2020) thereof is situated. (Sec. 1, Rule 92, ROC as
amended)
MINORS INCOMPETENTS
Procedure in the appointment
Still governed by the of guardians of minor
or inoompetent
provisions of the Rules
Now governed by of Court on
the Rule on Guardianship (Rules 92-
Petition for the appointment of a guardian
I
Guardianship of
Minors (A.M. No. 03-
97, ROC, as amended).
Hence, the application
'
Court order fixing the time and date of hearing
02-05-SC, effective
01 May 2003).
of the Rules is limited to
guardianship of the
I '
Notice of hearing I
person or estate of an
“incompetent.”
I '
Opposition, if any
I
"'
Case study report of the minor and prospective guardian
1. VENUE conducted bya social worker submitted at least three (3)
(Rule 92)
days before the scheduled hearing
1. In the RTC in the province where he resides, if

the ward is a resident;
I '
Hearing and appeintment of guardian I
2. In the RTC in the province wherein his property

I '
Filing of bond by the guard1an
I
is situated, if the ward is a non-resident, "'
Service of judgment on the Local Civil Registrar of the
place where the minor or inoompetent resides and
Register of Deeds where his property or part thereof is
3. In the City of Manila, the proceedings shall be situated
instituted in the Juvenile and Domestic
Relations Court. (Sec. 1, Rule 92, ROC, as J,
amended)
I Termination of guardianship I
Incompetents
NOTE: The procedure for the appointment of
1. Those suffering the penalty of civil interdiction;
guardian of a minor or incompetent is similar except
2. Hospitalized lepers;
for the case study report which is applicable only to
3. Prodigals; appointment of guardian of a minor. (Sec. 9, A.M. No.
4. Deaf and dumb who are unable to read and
03-02-05-SC)
write;
5. Those who are of unsound mind, even though
2. APPOINTMENT OF GUARDIANS
they have lucid intervals; and
(Rule 93)
6. Persons not being of unsound mind, but by
reason of age, disease, weak mind, and other
Who may File a Petition for Guardianship of
similar causes, cannot, without outside aid, take
Incompetents
care of themselves and manage their property,
becoming thereby an easy prey for deceit and
1. Any relative;
exploitation. (Sec. 2, Rule 92, ROC, as amended)
2. Friend; or

2022 GOLDEN NOTES
Remedial Law
3. Other person on behalf of the resident the court acquired no jurisdiction to appoint a
incompetent who has no parent or lawful guardian. (De Leon & Wilwayco, 2020; Nery v.
guardian; Lorenzo, G.R. L-23096, 27 Apr. 1972)
4. Secretary of Department of Health (DOH) in
favor of an insane person who should be It is significant to note that the rules do not
hospitalized or in favor of an isolated leper. necessitate that creditors of the minor or
(Sec. 1, Rule 93, ROC as amended) incompetent be likewise identified and notified. The
reason is simple: because their presence is not
NOTE: If the interested person is a creditor and essential to the proceedings for appointment of a
mortgagee of the estate of the minor, he cannot be guardian. It is almost a given, and understandably
appointed guardian of the person and property of so, that they will only insist that the supposed minor
the latter. (Garchitorena v. Sotelo, G.R. No. L-47867, or incompetent is actually capacitated to enter into
13 Nov. 1942) contracts, so as to preserve the validity of said
contracts and keep the supposed minor or
Contents of the Petition incompetent obligated to comply therewith.
(Alamayri v. Pabale, G.R. No. 151243, 30 Apr. 2008)
1. Jurisdictional facts:
a. The incompetency of the person for whom Hearing and Order for Letters to Issue
guardianship is sought; and
b. The fact that the ward resides in the place At the hearing:
where the court has jurisdiction; 1. The alleged incompetent must be present if
able to attend;
2. The incompetency rendering the appointment 2. It must be shown that the required notice has
necessary or convenient; been given;
3. The names, ages, and residences of the relatives 3. The court shall hear the evidence of the parties
of the incompetent, and of the persons having in support of their respective allegations; and
him in their care; 4. The court shall appoint a suitable guardian of
4. The probable value and character of his estate; his person or estate, or both, with the
and respective powers and duties. (Sec. 5, Rule 93,
5. The name of the person for whom letters of ROC as amended)
guardianship are prayed. (Sec. 2, Rule 93, ROC as
amended) Grounds for Opposition to Petition of
Guardianship of Incompetent
To whom Notice Served
1. Competency of alleged incompetent;
1. Persons mentioned in the petition residing in 2. Unsuitability of the person for whom letters are
the Philippines; and prayed for. (Sec. 4, Rule 93, ROC as amended)
2. The incompetent. (Sec. 3, Rule 93, ROC as
amended) Parents as Guardians
Notice of hearing of the petition is not intended as a If the value of the property or the annual income of
personal service process in the sense necessary to the child is ₱50,000.00 or less, the father and
give the court jurisdiction over the ward. (In Re mother jointly exercise legal guardianship. In case
Guardianship of Incompetent Jose de Inchausti v. of disagreement, the father’s decision prevails
Soler, G.R. No. L-15119, 19 Jan. 1920) unless there is judicial order to the contrary. (Art.
225, NCC)
In case of non-resident incompetent, service of
notice upon the persons mentioned in the petition is NOTE: If the value exceeds ₱50,000.00, the parent
mandatory and jurisdictional. Without such notice, concerned must file a verified petition for the

approval of the bond, the amount of which the court 2. When it is for the benefit of the ward that his
may determine, but must not be less than ten personal or real property or any part thereof be
percentum (10%) of the value of the property or the sold, mortgaged or otherwise encumbered, and
annual income of the child. (Art. 220, FC) the proceeds invested in safe and productive
security, or in the improvement or security of
3. GENERAL POWERS AND DUTIES other real property. (Sec. 19, A.M. No. 03-02-05-
OF GUARDIANS SC)
(Rule 96)
NOTE: However, before the guardian can sell,
1. Care and custody of the person of the ward; mortgage or encumber the property of the ward, the
2. Management of his estate; guardian must seek authority from the court by
3. Pay the debts of the ward; filing a verified petition. (Ibid.)
4. To settle accounts, collect debts, and appear in
actions for the ward; Jurisdictional Requirements
5. Manage the estate of the ward frugally, and
apply the proceeds to the maintenance of the 1. Petition must be verified (Sec. 1, Rule 95, ROC, as
ward; amended);
6. Render a verified inventory within three (3) 2. Notice must be given to the next of kin (Sec. 2,
months after his appointment and annually Rule 95, ROC, as amended); and
thereafter, and upon application of interested 3. Hearing so that they may show cause why
persons; petition should not be granted (Sec. 3, Rule 95,
7. Render to court for its approval an accounting ROC, as amended).
of the property for one (1) year from his
appointment and as often thereafter as may be NOTE: Sale of the ward’s realty by the guardian
required, and upon application of interested without authority from the court is void. The court
persons; and may authorize and require the guardian to invest
8. Consent to a partition of real or personal the proceeds of sales or encumbrances, and any
property owned by ward jointly or in common other of his ward's money in his hands, in real estate
with others. (Secs. 1-8, Rule 96, ROC as amended; or otherwise, as shall be for the best interest of all
Sec. 17, A.M. No.03-02-05-SC) concerned, and may make such other orders for the
management, investment, and disposition of the
NOTE: Unlike trustees, the accounting made by the estate and effects, as circumstances may require.
guardian is not under oath, and not made annually. (Sec. 5, Rule 95, ROC as amended)
(Sec. 6 [c], Rule 98 in relation to Sec. 8, Rule 96)
Next of Kin
If an issue arises as to who has the better right or
title to the properties conveyed in the guardianship Relatives who are entitled to share in the estate of
proceeding, such issue should be threshed out in a the ward under the Law on Intestate Succession
separate ordinary action as it is beyond the including those who inherit per stripes or by right
jurisdiction of the guardianship court, unless the of representation. (Lopez v. Teodoro, Sr., G.R. No. L-
ward’s right or title to the property is clear and 3071, 29 May 1950)
undisputable.
Order of Sale and Encumbrance of Property
When Guardian may Sell Property of the Ward
GR: The authority to sell or encumber shall not
1. When the income of a property under extend beyond 1 year. One year shall be reckoned
guardianship is insufficient to maintain and from the granting of the order.
educate the ward, and his family; or
XPN: Unless renewed by the court. (Sec. 4, Rule 95,

2022 GOLDEN NOTES
Remedial Law
ROC, as amended) 4. At the expiration of his trust, settle his accounts

with the court and deliver and pay over all the
It is presumed that if the property was not sold estate, effects, and moneys remaining in his
within 1 year, the ward has sufficient income. hands, or due from him on such settlement, to
the person lawfully entitled thereto; and
Prohibition against Guardians
5. To perform all orders required by the court.
The guardian cannot acquire by purchase even at a (Sec. 1, Rule 94; Sec. 14, A.M. No. 03-02-05-SC)
public or judicial auction, either in person or
through the mediation of another, the property of Purpose of the Bond
the person or persons who may be under
guardianship. For the protection of the property of the minor or
incompetent to the end that he may be assured of an
Appeal is the proper remedy against an order of the honest administration of his funds. (Herrera, 2005)
court authorizing the sale of the ward’s property.
(Lopez v. Teodoro, supra) NOTE: The bond of the guardian is a continuing one
against the obligors and their estates until all its
NOTE: There being a presumption that the sale of conditions are fulfilled. The mere fact that
the ward’s estate is valid; it cannot be attacked defendant was removed as guardian did not relieve
collaterally in the registration proceedings. A her or her bondsmen from liability during the time
separate action to avoid or rescind the sale on the she was duly acting as such guardian. (Guerrero v.
grounds specified by law should be filed. (Margate Teran, G.R. No. L-4898, 19 Mar. 1909)
v. Rabacal, G.R. No. L-14302, 30 Apr. 1963)
Necessity of the Bond
Conditions of the Bond of the Guardian
When required by statutes to give a bond, no person
Before an appointed guardian enters upon the can qualify and act as guardian without complying
execution of his trust, he shall give a bond, in such with this condition precedent. (Sec. 1, Rule 94, ROC,
sum to be determined by the court and under the as amended)
following conditions:
Time when Bond takes Effect
1. To make and return to the court within three
(3) months, a true and complete inventory of all At the time of appointment, notwithstanding the
the estate of his ward which shall come to his bond being filed later. (Ibid.)
possession or knowledge or to the possession
or knowledge of any other person for him; NOTE: In case of breach of the bond’s conditions,
the bond may be prosecuted in the same proceeding
2. To faithfully execute the duties of his trust, or in a separate action, for the use and benefit of the
manage and dispose of the estate according to ward or of any person legally interested in the
the rules for the best interests of the ward, and estate. (Sec. 3, Rule 94, ROC as amended)
to provide for the proper care, custody, and
education of the ward; 4. TERMINATION OF GUARDIANSHIP
3. To render a true and just account of all the Who may File (G-I-R-F)
estate of the ward in his hands, and of all
proceeds or interest derived therefrom, and of 1. His Guardian;
the management and disposition of the same, at 2. Person who has been declared Incompetent;
the time designated by the rules and such other 3. His Relative; or
times as the court directs; 4. His Friend.

The petition shall be verified by oath and shall state and an offer to settle the account and deliver the
that such person is then competent. (Sec. 1, Rule 97, estate over the court. (Herrera, 2005)
ROC, as amended)
Special Disqualification
Grounds of Termination
1. Non-residence of the guardian;
1. Death of the ward; 2. Advanced age of the guardian; and
2. Death of the guardian; 3. Judges, clerks of court; (Vancil v. Belmes, G.R. No.
3. Competency of the ward has been judicially 13222, 19 June 2001)
declared;
4. Guardianship is no longer necessary; or RULE ON GUARDIANSHIP OVER MINOR
5. The ward has come of age (emancipation) (Sec. A.M. No. 03-02-05-SC
1-3, Rule 97, ROC, as amended) Effective 01 May 2003
A guardianship court has no power to order the Minors

person suspected of embezzling or concealing
property of the ward to deliver the same to the Those who are below 18 years of age or those over
court. A guardianship court only has the power to but are unable to fully take care of themselves from
cite such person to obtain information on the abuse, neglect, cruelty, exploitation, or
property. (Parco v. CA, G.R. No. L-33152, 30 Jan. discrimination because of a physical or mental
1982) disability or condition. (Sec. 3(a), R.A. No. 7610)
Who may Oppose Tender Age Presumption
1. Guardian; A mother is to be preferred in awarding custody of

2. Relative of the ward; or children under the age of seven (7). There being no
3. Any other person, in the discretion of the court. sufficient proof of any compelling reason to
(Sec. 1, Rule 97, ROC, as amended) separate the minor from his mother, custody should
remain with her. (Art. 213, NCC)
Grounds for the Removal or Resignation of a
Guardian This presumption may be overcome only by
compelling evidence of the mother’s unfitness.
1. Insanity; (Gualberto v. Gualberto. G.R. No. 154994, 28 June
2. Incapability or unsuitability for discharging his 2005)
trust;
3. Wastage or mismanagement of the estate of the Instances when Parent is Declared Unsuitable
ward; or for Custody (N-A-U-H-I-D-M-I-A-A)
4. Failure to render an account or make a return
for thirty (30) days after it is due. (Sec. 2, Rule 1. Neglect;
97, ROC, as amended) 2. Abandonment;
3. Unemployment;
The remedy of the guardian from the order of 4. Habitual drunkenness;
removal is to appeal. (Olarte v. Enriquez, G.R. No. L- 5. Immorality;
16098, 31 Oct. 1960) 6. Drug addiction;
7. Maltreatment of the child;
The guardian may file a petition before the 8. Insanity;
guardianship court for permission to resign his 9. Affliction with a communicable disease; or
trust, stating the grounds therefore, and 10. Analogous grounds (Perez v. CA, G.R. No.
accompanied by a report of the state of his account 118870, 29 Mar. 1996)

2022 GOLDEN NOTES
Remedial Law
Who may File a Petition for Guardianship of (Sec. 4, Ibid.)

Minors
Qualifications of Guardians (M-A-L-F-R-A-P)
1. Any relative;
2. Other person on behalf of the minor; 1. Moral character;
3. The minor himself if fourteen (14) years of age 2. Availability to exercise the powers and duties of
or over; a guardian for the full period of the
4. The Secretary of DSWD; or guardianship;
5. The Secretary of DOH in case of an insane minor 3. Lack of conflict of interest with the minor;
who needs to be hospitalized. (Sec. 2, A.M. No. 4. Financial status;
03-02-05-SC) 5. Relationship of trust with the minor;
6. Ability to manage the property of the minor;
Non-resident Minors and
7. Physical, mental, and psychological condition.
The Courts may appoint a guardian for non-resident (Sec. 5, Ibid.)
minors or incompetents, but only insofar as to the
property of the non-resident minor found in the NOTE: The court shall order a social worker to
Philippines is concerned. Any relative, friend, or conduct a case study of the minor and all the
anyone interested in his property, in expectancy or prospective guardians and submit his report and
otherwise, may petition the Family Court/RTC for recommendation to the court for its guidance before
the appointment of a guardian over the property. the scheduled hearing. (Sec. 9, Ibid.)
(Sec. 12, Ibid.; Sec. 6, Rule 93, ROC, as amended)
Non-resident Guardians Not to be Appointed
NOTE: Publication is required for petitions for
guardianship over the property of a non-resident The Courts should not appoint persons as guardians
minor unlike in the case of a resident minor. (Sec. 12, who are not within the jurisdiction of our courts for,
Ibid., in relation to Sec. 6, Rule 93, ROC, as amended) they will find it difficult to protect the wards. (De
Leon & Wilwayco, 2020; Vancil v. Belmes, G.R. No. L-
Where Filed 132223, 19 June 2001)
1. In case of a resident minor, in the Family Court Substitute Parental Authority

of the province or city where the minor actually
resides; or The law vests on the father and mother joint
parental authority over the persons of their
2. In case of a non-resident minor, in the Family common children. In case of absence or death of
Court of the province or city where his property either parent, the parent present shall continue
or any part thereof is situated. (Sec. 3, Ibid.) exercising parental authority. Only in case of the
parents’ death, absence or unsuitability may
Grounds for the Appointment of a Guardian over substitute parental authority be exercised by the
the Person or Property, or Both, of a Minor surviving grandparent. (De Leon & Wilwayco, 2020;
Santos, Sr. v. CA, G.R. No. 113054 16 Mar. 1995)
1. Death, continued absence, or incapacity of his
parents; Order of Preference in Appointing a Guardian
2. Suspension, deprivation or termination of
parental authority; In default of parents or a court-appointed guardian,
3. Remarriage of surviving parent, if the latter is the court may appoint a guardian of a minor,
found unsuitable to exercise parental authority; observing as far as practicable the following order
or of preference:
4. When the best interests of the minor so require.

1. The surviving grandparent, and in case several Grounds for Opposition to Petition of
grandparents survive, the court shall select any Guardianship of Minors
of them taking into account all relevant
considerations; 1. Majority of the minor; or
2. Unsuitability of the person for whom letters are
2. The oldest brother or sister over twenty-one prayed for. (Sec. 10, Ibid.)
(21) years of age, unless he or she is unfit or
disqualified; NOTE: Any interested person may contest the
petition by filing a written opposition and pray that
3. The actual custodian of the minor over twenty- the petition be denied, or that letters of
one (21) years of age, unless the former is unfit guardianship issue to himself, or to any suitable
or disqualified; and person named in the opposition. (Sec. 10, Ibid.; Sec.
4. Any other person who in the sound discretion
of the court, would serve the best interests of If the interested person is a creditor and mortgagee
the minor. (Sec. 6, Ibid.) of the estate of the minor, he cannot be appointed
guardian of the person and property of the latter.
Contents of the Petition for the Appointment of (Sec. 5, A.M. No. 03-02-05-SC)
a General Guardian
Bonds of Parents as Guardians
1. Jurisdictional facts;
a. Minority of the person for whom The parents shall post a bond if the market value of
guardianship is sought; and the child’s properties or income exceeds
b. The fact that the minor resides in the place ₱50,000.00. The bond shall not be less than 10% of
where the court has jurisdiction. the value of the properties or income. (Sec. 16, Ibid.)
2. The name, age and residence of the prospective
ward; Grounds for Petition to Sell or Encumber
3. The ground rendering the appointment Property of the Ward
necessary and convenient;
4. The death of the parents of the minor or the 1. When the income of estate is insufficient to
termination, deprivation or suspension of their maintain and educate ward; or
parental authority; 2. When it appears that it is for the benefit of the
5. The remarriage of the minor’s surviving parent; ward. (Sec. 19, Ibid.)
6. The names, ages, residences of relatives within
4th civil degree of minor, and of persons having The authority to sell or encumber shall not extend
him in their care and custody; beyond one (1) year, unless renewed by the court.
7. The probable value, character, and location of (Sec. 22, Ibid.)
the property of the minor; and
8. The name, age, and residence of the person for Grounds for Removal or Resignation of
whom letters of guardianship are prayer. (Sec. Guardian
7, Ibid.)
1. Becomes insane or otherwise incapable of
Time and Notice of hearing discharging his trust;
2. Is found thereafter to be unsuitable;
Notice must be given to persons named in the 3. Has wasted or mismanaged the property of the
petition and to the minor if over fourteen (14) years ward; or
of age (Sec. 8, Ibid.). Notice is jurisdictional, without 4. Has failed to render an account or make a return
which the court does not acquire jurisdiction over for thirty (30) days after it is due. (Sec. 24, Ibid.
the petition. (De Leon & Wilwayco, 2020)

2022 GOLDEN NOTES
Remedial Law
NOTE: No motion for removal or resignation shall 4. If the results of the post-conviction DNA testing
be granted unless the guardian has submitted the are favorable to the convict. (Sec. 10 in relation
proper accounting of the ward and the court has to Sec. 6, A.M. No. 06-11-5-SC, effective 15 Oct.
approved the same. (Sec. 24, Ibid.) 2007); and
Grounds for Termination of Guardianship 5. Persons deprived of liberty due to mistaken

identity. In such cases, the person is not under
Guardianship’s termination may be motu propio or any lawful process and is continuously being
by a verified motion by any person allowed to file a illegally detained. (In The Matter of the Petition
petition for guardianship on the grounds of: for Habeas Corpus of Datukan Malang Salibo,
G.R. No. 197597, 8 Apr. 2015)
1. Ward has come of age (emancipation); or
2. Ward has died. (Sec. 25, Ibid.) Purpose
NOTE: The guardian shall notify the court of such In general, the purpose of the writ is to determine
fact within 10 days of its occurrence. (Sec. 25, Ibid.) whether or not a particular person is legally held.
(De Leon & Wilwayco, 2020)
D. WRIT OF HABEAS CORPUS To justify the grant of the petition, the restraint of
(Rule 102) liberty must be an illegal and deprivation of
freedom of action. The illegal restraint of liberty
must be actual and effective, not merely nominal or
moral. (Illusorio v. Bildner, G.R. Nos. 139789 and
1. RULE 102
139808, 12 May 2000)
It is a writ directed to the person detaining another

Nature of the Petition
and commanding him to produce the body of the
prisoner at a certain time and place with the day and
1. Summary – Habeas corpus is a summary
the cause of his caption and detention, to do, submit
remedy. It is analogous to a proceeding in rem
to and receive whatsoever, the court or judge
when instituted for the sole purpose of having
awarding the writ shall consider in that behalf.
the person of restraint presented before the
(Illusorio v. Bildner, G.R. Nos. 139789 and 139808, 12
judge in order that the cause of his detention
May 2000)
may be inquired into and his statements final.
The writ of habeas corpus does not act upon the
Scope of the Writ
prisoner who seeks relief, but upon the person
who holds him in what is alleged to be the
Habeas corpus extends to:
unlawful authority. Hence, the only parties
before the court are the petitioner and the
1. All cases of illegal confinement or detention by
person holding the petitioner in custody, and
which a person is deprived of his liberty; or
the only question to be resolved is whether the
custodian has authority to deprive the
2. All cases by which the rightful custody of the
petitioner of his liberty. (De Leon & Wilwayco,
person is withheld from the person entitled
2020; Caballes v. CA, G.R. No. 163108, 23 Feb.
thereto (Sec. 1, Rule 102) (2005 & 2009 BAR);
2005)
3. An alleged violation of the liberty of abode

NOTE: Proceedings in habeas corpus are
(Osorio v. Navera, G.R. No. 223272, 26 Feb. 2018);
separate and distinct from the main case from
and
which the proceedings spring. They rarely, if
ever touch the merits of the case and require no

pronouncement with respect thereto. They deal Grounds for Suspension of the Privilege of the
simply with the detention of the prisoner and Writ of Habeas Corpus under the Constitution:
stop with the authority by virtue of which he is
detained. (De Leon & Wilwayco, 2020; Ching v. 1. Invasion, when public safety requires it; or
Insular Collector of Customs, G.R. No. L-10972, 28 2. Rebellion, when public safety requires it. (Sec.
Jan. 1916) 15, Art. III, and Sec. 18, Art. VIII, 1987
Constitution)
In habeas corpus proceedings, the only parties
before the court are the petitioner (prisoner) Kinds of Writ of Habeas Corpus
and the person holding the petitioner in
custody. (Claridades, 2017) 1. Preliminary citation – if the person is detained
under governmental authority and the illegality
2. Ancillary – The writ of habeas corpus and of his detention is not patent from the petition
certiorari may be ancillary to each other where for the writ, the court issues the citation to
necessary to give effect to the supervisory government officer having custody to show
powers of the higher courts. A writ of habeas cause why the habeas corpus writ should not
corpus reaches the body and the jurisdictional issue;
matters, but not the record. A writ of certiorari
reaches the record but not the body. Hence, a 2. Peremptory writ – if the cause of the detention
writ of habeas corpus may be used with the writ appears to be patently illegal, the court issues
of certiorari for the purpose of review. (Galvez the habeas corpus writ noncompliance with
v. CA, G.R. No. 114046, 24 Oct. 1994) which is punishable. (Lee Yick Hon v. Insular
Collector of Customs, G.R. No. L-16779, 20 Mar.
However, habeas corpus does not lie where the 1921);
petitioner has the remedy of appeal or
certiorari. (De Leon & Wilwayco, 2020; Galvez v. 3. Preemptory writ – a written document
Court of Appeals, G.R. No. 114046, 24 Oct. 1994) unconditionally commanding the respondent to
have the body of the document detained person
NOTE: In habeas corpus cases, the judgment in before the court at a time and place specified
favor of the applicant cannot contain a therein. (De Leon & Wilwayco, 2020)
provision for damages. (Alimpoos v. CA, G.R. No,
L-27331, 30 July 1981) Grounds for the Issuance of Writ of Habeas
Corpus as a Consequence of Judicial Proceeding
3. Prerogative writ – A writ of habeas corpus
which is regarded as a “palladium of liberty,” is 1. There has been a deprivation of a constitutional
a prerogative writ which does not issue as a right resulting in restraint of a person;
matter of right but in the sound discretion of the 2. The court has no jurisdiction to impose the
court or judge. sentence;
3. An excessive penalty has been imposed, the
Resort to the writ is to inquire into the criminal sentence being void as to excess (De Leon &
act of which a complaint is made but unto the Wilwayco, 2020; Go v. Dimagiba, G.R. No.
right of liberty, notwithstanding the act, and the 151876, 21 June 2005);
immediate purpose to be served is relief from 4. Where the law is amended, as when the penalty
illegal restraint. (De Leon & Wilwayco, 2020; is lowered (Feria v. CA, G.R. No. 122954, 15 Feb.
Caballes v. CA, G.R. No. 163108, 23 Feb. 2005) 2022);
5. Denial of right to a speedy trial (since it is
jurisdictional);
6. Where the results of post-conviction DNA
testing are favorable to the convict (Sec. 10 in

2022 GOLDEN NOTES
Remedial Law
relation to Sec. 6, A.M. No. 06-11-5-SC, effective NOTE: The formalities required for petitions for
15 Oct. 2007); habeas corpus must be construed liberally. Strict
7. Enable the parents to regain custody of a minor compliance with the technical requirements for a
child, even if the latter be in the custody of a habeas corpus petition may be dispensed with
third person of her own free will (Tijing v. CA, where the allegations in the application are
G.R. No. 125901, 08 Mar. 2001); sufficient to make out a case for habeas corpus.
8. In determining the constitutionality of a statute (Fletcher v. Director of Bureau of Corrections, UDK-
(People v. Vera, G.R. No. L-45685, 16 Nov. 1937); 14071, 17 July 2009)
9. When testing the legality of an alien’s
confinement and proposed expulsion from the Contents of the Return
Philippines (Lao Tang Bun v. Fabre, G.R. No. L-
1673, 22 Oct. 1948); When the person to be produced is imprisoned or
10. In permitting an alien to land in the Philippines restrained by an officer, the person who makes the
(Lim Cheng v. Insular Collector of Customs, G.R. return shall state therein, and in other cases the
No. 16406, 13 Sept. 1920); and person in whose custody the prisoner is found shall
11. In determining the legality of an extradition. state, in writing to the court or judge before whom
(United States v. Rauscher, 7 S. Ct. 234, 30 L. Ed. the writ is returnable, plainly and unequivocally:
425, 6 Dec. 1886)
1. Whether he has or has not the party in his
Who may File custody or power, or under restraint;
1. Party for whose relief it is intended or a person 2. If he has the party in his custody or power, or
unlawfully imprisoned or restrained of his under restraint, the authority and the true and
liberty; or whole cause thereof, set forth at large, with a
2. Some person on his behalf (Sec. 3, Rule 102, ROC, copy of the writ, order, execution, or other
as amended) process, if any, upon which the party is held;
Form and Contents of the Petition 3. If the party is in his custody or power or is
restrained by him, and is not produced,
The party may apply through a signed and verified particularly the nature and gravity of the
petition for a writ of habeas corpus which should sickness or infirmity of such party by reason of
contain the following: (P-I-C-O) which he cannot, without danger, be brought
before the court or judge; and
1. That the person in whose behalf the application
is made is Imprisoned or restrained of his 4. If he has had the party in his custody or power,
liberty; or under restraint, and has transferred such
2. The Officer or name of the person by whom he custody or restraint to another, particularly to
is so imprisoned or restrained; or, if both are whom, at what time, for what cause, and by
unknown or uncertain, such officer or person what authority such transfer was made. (Sec.
may be described by an assumed appellation, 10, Rule 102, ROC, as amended)
and the person who is served with the writ shall
be deemed the person intended; NOTE: If it appears that the prisoner is in the
3. The Place where he is so imprisoned or custody of a public officer under a warrant of
restrained, if known; and commitment in pursuance of law, the return shall be
4. The Cause of his detention or a copy of the considered prima facie evidence of the validity of
commitment. (Sec. 3, Rule 102, ROC, as the restraint. But if he is restrained of his liberty by
amended) an alleged private authority, the return shall be
considered only as a plea of the facts therein set
forth, and the party claiming the custody must

prove such facts. (Sec. 13, Rule 102, ROC, as undesirable alien. The complaint for
amended) deportation was dismissed but was
subsequently reversed by the Board of
Return to be Signed and Sworn to Commissioners; hence the corresponding
Charge Sheet was filed against Jimmy, charging
GR: The return or statement shall be sworn to by the him of violating the Philippine Immigration Act
person who makes it, and also signed by him if the of 1940. The Board of Commissioners issued a
prisoner is not produced. warrant of deportation which led to the
apprehension of Jimmy. Jimmy commenced a
XPN: The return is made and signed by a sworn petition for habeas corpus. Should the petition
public officer in his official capacity. (Sec. 11, Rule be granted?
A: NO. Once a person detained is duly charged in
Hearing on Return court, he may no longer question his detention
through a petition for issuance of a writ of habeas
GR: The court or judge before whom the writ is corpus. His remedy would be to quash the
returned or adjourned must immediately proceed information and/or the warrant of arrest duly
to hear and examine the return. issued. The writ of habeas corpus should not be
allowed after the party sought to be released had
XPN: The hearing may be adjourned for good been charged before any court. The term “court” in
causes, provided that conditions upon the this context includes quasi-judicial bodies of
safekeeping of the detained person are laid. If the governmental agencies authorized to order the
detained person cannot be produced before the person’s confinement, like the Deportation Board of
court, the officer or person detaining must satisfy the Bureau of Immigration. (Go, Sr. v. Ramos, G.R. No.
the court of the gravity of the alleged sickness or 167569, Fernandez v. Jimmy Go, G.R. No. 167570, 04
infirmity. (Sec. 12, Rule 102, ROC, as amended) Sept. 2009)
NOTE: During the hearing, the court or judge shall Q: A municipal trial judge, who is related within
disregard matters of form and technicalities of the the third degree of consanguinity to Archie,
authority or order of commitment. (Sec. 12, Rule complainant, has conducted an ex parte
102, ROC, as amended) preliminary investigation without affording
Ben, accused, opportunity to be heard and
The failure of petitioners to file a reply to the return thereafter issued a warrant of arrest, pursuant
of the writ warrants the dismissal of the petition to which Ben has been detained, and
because unless controverted, the allegations on the subsequently forwarded the records of the case
return are deemed to be true or admitted. (Florendo to the provincial prosecutor for appropriate
v. Javier, G.R. No. L-36101, 29 June 1979) action. Will habeas corpus and certiorari lie?
Period of Appeal A: YES. A petition for habeas corpus to relieve Ben

under the illegal warrant of arrest, and for certiorari
Under B.P. No. 129, the period of appeal in habeas to assail the warrant of arrest may be filed, and the
corpus cases shall be 48 hours from the notice of the judge may properly be made respondent, even
judgment or final order appealed from. (Sec. 39, B.P. though the accused has been in physical custody of
No. 129) the Provincial warden, as the judge has constructive
custody of the accused. For the illegal order and
Q: Luis Ramos initiated a complaint-affidavit for warrant of arrest issued by the judge subsists and
deportation before the Bureau of Immigration Ben is offered no speedy, adequate remedy or
and Deportation (BID) against Jimmy Go appeal in the ordinary course of law. The writ of
alleging that the latter is an illegal and habeas corpus, although not designed to interrupt

2022 GOLDEN NOTES
Remedial Law
the orderly administration of justice, can be a. What is the remedy available to Hercules to
invoked, in fine, by the attendance of special secure his immediate release from
circumstance that requires immediate action. detention?
(Calvan v. CA, G.R. No. 140823, 03 Oct. 2000)
b. If Hercules opts to file a civil action against
Q: Rita Labriaga was caught selling two tea bags the police officer, will he have a cause of
of marijuana in Daraga, Albay in a buy-bust action? (2015 BAR)
operation conducted by the Narcotics Command
and was found in possession of 115 grams of A:
marijuana. She was convicted for violation of RA a. The remedy available to Hercules to secure
6425 and was sentenced to life imprisonment. his immediate release from detention is a
Rita filed a motion for reconsideration with petition for writ of habeas corpus. Under Rule
modification of sentence. She prayed for the 102, the writ of habeas corpus is available in
retroactive application to her case of RA 7659 cases of illegal detention. Sec. 5 of Rule 102
which imposes imprisonment of prision provides that a court or judge authorized to
correccional for less than 250 grams of grant the writ must, when the petition therefor
marijuana, and for her eventual release from is presented and it appears that the writ ought
confinement at the Correctional Institution for to issue, grant the same forthwith, and
Women in Mandaluyong as a consequence of the immediately thereupon the clerk of court shall
application of the new law to her case. It appears issue the writ or in case of emergency, the judge
that she already served sentence for a more than may issue the writ under his own hand and may
a year. Should the motion be granted? depute any officer or person to serve it. The
court or judge before whom the writ is returned
A: YES. The appropriate remedy is to file a petition must immediately proceed to hear and examine
for habeas corpus considering that the decision in the return. (Sec. 12, Rule 102, ROC, as amended)
this case is final. However, in accordance with the
ruling in Angeles v. Bilibid Prison (G.R. No. 117568, 04 b. YES. Hercules will have a cause of action. Under
Jan. 1995) and People v. Agustin (G.R. No. 98362, 05 Art. 32(4) of the Civil Code, any public officer
Sept. 1995), in which the SC held that the rules on who violates the right of a person to freedom
habeas corpus should be liberally applied in cases from arbitrary or illegal detention shall be liable
which are sufficient in substance, the motion in this to the latter for damages. The action to recover
case must be treated as a substantial compliance damages is an independent civil action. Here
with the rules on habeas corpus. Rita Labriaga, Hercules was illegally detained as there was no
having served more than the maximum imposable probable cause to arrest him without warrant.
penalty of prision correccional, should be released.
(People v. Labriaga, G.R. No. 92418, 20 Nov. 1995) Who may Grant the Writ
Q: Hercules was walking near a police station The RTC, CA, and SC have concurrent jurisdiction to
when a police officer signaled for him to issue writs of habeas corpus. The MTC, by virtue of
approach. As soon as Hercules came near, the special jurisdiction under B.P. No. 129, can issue the
police officer frisked him but the latter found no writ in case there is no available RTC judge.
contraband. The police officer told Hercules to Hierarchy of courts is not observed. (Candelaria v.
get inside the police station. Inside the police RTC, G.R. No. 173861, 14 July 2014)
station, Hercules asked the police officer, "Sir,
may problema po ba?" Instead of replying, the The writ issued by the RTC is enforceable within its
police officer locked up Hercules inside the territorial jurisdiction. While the writ issued by the
police station jail. CA or SC is enforceable anywhere in the Philippines.
(Sec. 2, Rule 102, ROC, as amended) (2003, 2005 &
2007 BAR)

The Sandiganbayan may issue writs of habeas of the respondent by mere service of writ. (Sec. 7,
corpus only if it is in aid of its appellate jurisdiction. Rule 102, ROC, as amended)
(Sec. 4, P.D. No. 1606, as amended by R.A. No. 8249)
How Writ Executed and Returned
Family Courts have exclusive jurisdiction to issue
writs of habeas corpus involving custody of minors. GR: Officer to whom the writ is directed shall
(Sec. 5, R.A. No. 8369) convey the detained person on the day specified in
the writ
Who Issues the Writ
1. Before the judge who allowed the writ; or
GR: If it appears that the writ should issue, the clerk 2. If he is absent, before any judge of the same
of court issues the writ under the court’s seal. court.
XPN: In emergency cases, the judge may issue the XPN: If the person to be produced has sickness or
writ under his own hand and deputize any person to infirmity such that he cannot be brought before the
serve it. (Sec. 5, Rule 102, ROC, as amended) court without danger. (Sec. 8, Rule 102, ROC, as
amended)
To whom Writ Directed
Q: When the soldier’s defense to a petition for
1. In case of imprisonment or restraint by an habeas corpus is that they released the
officer, the writ shall be directed to him and detainees for whom the petition was filed, but
shall command him to have the body of the the allegation of release is disputed by the
person restrained of his liberty before the court parents of the detainees, and it is not denied that
or judge designated in the writ at the time and the detainees have not been seen or heard from
place specified therein. since their supposed release, do the parents
have the burden in law of proving that their
2. In case of imprisonment or restraint by a children are still detained by the soldiers or
person not an officer, the writ shall be directed does the burden shifts to the soldiers?
to an officer, and shall command him to take
and have the body of the person restrained of A: The general rule in the number of cases is that the
his liberty before the court or judge designated release of a detained person renders moot and
in the writ at the time and place therein academic the petition for habeas corpus. The cited
specified. The officer shall summon the person general rule postulates that the release of the
detaining another to appear before the court to detainees is an established fact and not in dispute,
show the cause of the imprisonment or and they do not constitute to be missing persons.
restraint. (Sec. 6, Rule 102, ROC, as amended) Where, however, there are grounds for grave
doubts about the alleged release of the detainees,
How Service is Made where the standard and prescribed procedure has
not been followed, then the burden of proving by
1. By leaving the original of the writ with the clear and convincing evidence the alleged release is
person to whom it is directed or to any person shifted to the soldiers, as the respondents to the
having custody if the former cannot be found or petition. (Dizon v. Eduardo, G.R. No. L-59118, 03 Mar.
has not the person in his custody; and 1988)
2. By preserving a copy on which to make return

of service. (Sec. 7, Rule 102, ROC, as amended)
The writ itself plays the role of summons in ordinary

actions; court acquires jurisdiction over the person

2022 GOLDEN NOTES
Remedial Law
Habeas Corpus is NOT Applicable when the When Writ NOT Allowed or Discharge
Purpose is to: Authorized
1. Enforce a right of service; The writ of habeas corpus shall not be allowed when
2. Determine whether a person has committed a the person alleged to be restrained of his liberty is
crime; in the custody of an officer:
3. Determine a disputed interstate boundary line;
4. Punish respondent; 1. Under process issued by a court or judge;
5. Recover damages or other money award; 2. By virtue of a judgment or order of a court of
6. Assert or vindicate denial of right to bail; (In re: record; and
Azucena Garcia, G.R. No. 141443, 18 Nov. 2000) 3. The court or judge had jurisdiction to issue the
7. Correct errors in appreciation of facts or law; process, render the judgment, or make the
(Sotto v. Dir. of Prisons, G.R. No. L-18871, 30 May order. (Sec. 4, Rule 102, ROC, as amended)
1962) or
8. Enforce marital rights including living in In addition, the discharge of the writ of habeas
conjugal dwelling. corpus shall not be authorized upon showing that a
person is:
In cases of Illegal Confinement or Detention
1. Charged with;
GR: The release whether permanent or temporary, 2. Convicted of an offense; or
of a detained person renders the petition for habeas 3. Suffering imprisonment under lawful judgment.
corpus moot and academic. (Sec. 4, Rule 102, ROC, as amended)
XPN: When there are restraints attached to his Q: SSgt. Osario, together with his superior
release which precludes freedom of action, in which officer, was charged in two informations for
cases the court can still inquire into the nature of his allegedly kidnapping two University of the
involuntary restraint. (Villavicencio v. Lukban, G.R. Philippines students. Warrants of arrest were
No. L-14639, 25 Mar. 1919) issued against his which caused his arrest. He
was later turned over to the Criminal
Voluntary Restraint Investigation and Detection Unit Group in Camp
Crame, Quezon City and was detained in the
GR: Writ is not available if restraint is voluntary. Bulacan Provincial Jail. Subsequently, he was
(Kelly v. Director of Prisons, G.R. No. L-20478, 14 Mar. transferred to the Philippine Army Custodial
1923) Center in Fort Bonifacio, Taguig City. Contending
that he was being illegally deprived of his
XPN: Writ will lie to enable the parents (or person liberty, SSgt. Osorio filed a Petition for Habeas
having substituted parental authority) to recover Corpus. He mainly argued that courts-martial,
custody of a minor child although she is in custody not a civil court such as the RTC, had jurisdiction
of a 3rd person on her own volition. (Tijing v. CA, G.R. to try the criminal case considering that he was
No. 125901, 08 Mar. 2001) a soldier on active duty and that the offense
charged was allegedly "service-connected." Is a
NOTE: Voluntariness is viewed from the point of writ of habeas corpus the proper remedy for
view of the person entitled to custody. SSgt. Osario?
A: NO. A writ of habeas corpus may no longer be

issued if the person allegedly deprived of liberty is
restrained under a lawful process or order of the
court. The restraint then has become legal.
Therefore, the remedy of habeas corpus is rendered

moot and academic. SSgt. Osorio's proper remedy is proceedings; (Galvez v. CA, G.R. No. 114046, 24
to pursue the orderly course of trial and exhaust the Oct. 1994)
usual remedies. (Sgt. Esgardo Osario vs. Asst. State
Prosecutor Juan Pedro Navera, G.R. No. 223272, 26 6. Restrictive custody and monitoring of
Feb. 2018) movements or whereabouts of police officers
under investigation by their superiors is not a
Other Instances when the Writ shall be form of illegal detention or restraint of liberty,
Disallowed or Discharged as it is sanctioned by R.A. No. 6975, as amended.
Restrictive custody is, at best, a nominal
1. In cases of supervening events such as issuance restraint which is beyond the ambit of habeas
of a process and filing of an information; corpus; (Ampatuan v. Macaraig, G.R. No. 182497,
(Velasco v. CA, G.R. No. 118844, 07 July 1995) 29 June 2010)
2. In cases of improper arrest or lack of 7. If the person arrested is judicially charged

preliminary investigation; (Paredes v. within 3 days from his detention during the
Sandiganbayan, G.R. No. 89989, 28 Jan. 1991) suspension of the writ, the aggrieved party is
precluded from inquiring into the legality of the
NOTE: The proper remedy in case of improper arrest or detention in the petition for habeas
arrest or lack of preliminary investigation is to corpus and this justifies its dismissal, as the
quash warrant and conduct or direct question of the legality of the arrest or
preliminary investigation. (Raro v. detention should be raised in the pending
Sandiganbayan, G.R. No. 108431, 14 July 2000) criminal case, either in a motion to quash the
warrant of arrest or the information itself.
3. In cases of invalid arrest due to deportation (Bernarte v. CA, G.R. No. 107741, 18 Oct. 1996)
cases cured by filing of the deportation
proceedings; (Santos v. Commissioner of Related Jurisprudence
Immigration, G.R. No. L-25694, 29 Nov. 1976)
In all petitions for habeas corpus, the court must
4. Petition for habeas corpus is not the appropriate inquire into every phase and aspect of petitioner’s
vehicle for asserting a right to bail or detention, from the moment petitioner was taken
vindicating its denial; (Galvez v. CA, G.R. No. into custody up to the moment the court passes
114046, 24 Oct. 1994) upon the merits of the petition and only after such a
scrutiny can the court satisfy itself that the due
NOTE: An application or admission to bail shall process clause of the Constitution has been satisfied.
not bar the accused from challenging the (Bernarte v. CA, G.R. No. 107741, 18 Oct. 1996)
validity of his arrest, or the legality of warrant
issued therefore, or from assailing the While habeas corpus is a writ of right, it will not
regularity or questioning the absence of a issue as a matter of course or as a mere perfunctory
preliminary investigation of the charge against operation on the filing of the petition. Judicial
him, provided that he raises them before discretion is called for in its issuance and it must be
entering his plea. (Sec. 26, Rule 114; A.M. No. 00- clear to the judge to whom the petition is presented
5-03-SC) that, prima facie, the petitioner is entitled to the
writ. It is only if the court is satisfied that a person
5. Habeas corpus does not lie where the petitioner is being unlawfully restrained of his liberty will the
has the remedy of appeal or certiorari because petition for habeas corpus be granted. If the
it will not be permitted to perform the functions respondents are not detaining or restraining the
of a writ of error or appeal for the purpose of applicant or the person in whose behalf the petition
reviewing mere errors or irregularities in the is filed, the petition should be dismissed. (Ampatuan
v. Macaraig, supra)

2022 GOLDEN NOTES
Remedial Law
Person Lawfully Imprisoned, Recommitted, and privilege of the writ. (Moncupa v. Enrile, G.R. No. L-
when Let to Bail (2008 BAR) 63345, 30 Jan. 1986)
If it appears that the prisoner was lawfully Q: Can the State reserve the power to re-arrest a
committed and is plainly and specifically charged in person for an offense after a court of competent
the warrant of commitment with an offense jurisdiction has absolved him of the offense?
punishable by death, he shall not be released,
discharged, or bailed. A: NO. Such a reservation is repugnant to the
principle that the government is one of laws and not
If he is lawfully imprisoned or restrained on a of men. Under this principle, the moment a person
charge of having committed an offense not so is acquitted of a criminal charge he can no longer be
punishable, he may be recommitted to detained or re-arrested for the same offense.
imprisonment or admitted to bail in the discretion (Toyoto v. Ramos, G.R. No. L-69270, 15 Oct. 1985)
of the court or judge.
Habeas corpus would not lie after the Warrant of
If he be admitted to bail, he shall forthwith file a Commitment was issued by the court on the basis of
bond in such sum as the court or judge deems the Information filed against the accused. (Ilagan v.
reasonable, considering the circumstances of the Enrile, G.R. No. 70748, 21 Oct. 1985)
prisoner and the nature of the offense charged,
conditioned for his appearance before the court Once a person detained is duly charged in court, he
where the offense is properly cognizable to abide its may no longer question his detention through a
order of judgment; and the court or judge shall petition for issuance of a writ of habeas corpus. The
certify the proceedings, together with the bond, remedy would be to quash the information and/or
forthwith to the proper court. the warrant of arrest duly issued. (Kiani v. Bureau
of Immigration and Deportation, G.R. No. 160922, 27
If such bond is not so filed, the prisoner shall be Feb. 2006)
recommitted to confinement. (Sec. 14, Rule 102, ROC,
as amended) If the offense is punishable by death, the person
lawfully detained shall not be released, discharged
Person Discharged NOT to be Again Imprisoned or bailed. If the offense is not punishable by death,
he may be recommitted to imprisonment or
GR: A person who is set at liberty upon a writ of admitted to bail in the discretion of the court. (Sec.
habeas corpus shall not be again imprisoned for the 14, Rule 102, ROC, as amended)
same offense.
When Prisoner may be Removed from One
XPN: He is imprisoned by virtue of lawful order or Custody to Another
process of court having jurisdiction of the offense or
cause. (Sec. 17, Rule 102, ROC, as amended) 1. By legal process;
2. Prisoner is delivered to an inferior officer to
NOTE: The release contemplated under the writ of carry to jail;
habeas corpus is one which is free from any 3. By order of proper court or judge directing that
involuntary restraint. When the person so released he be removed from one place to another within
continues to be denied of one or more of his the Philippines
constitutional freedoms where there is present a. for trial; or
denial of due process, or where the restraints are b. In case of fire, epidemic, insurrection or
not merely involuntary but appear to be other necessity or public calamity. (Sec. 18,
unnecessary, the person concerned or those acting Rule 102, ROC, as amended)
in his behalf may still avail themselves again of the

Q: Mariano was convicted by the RTC for raping Should the petition for habeas corpus be
Victoria and meted the penalty of reclusion granted?
perpetua. While serving sentence, Mariano and
Victoria got married. Mariano filed a motion in A: NO. The general rule that habeas corpus does not
said court for his release from the penitentiary lie where the person alleged to be restrained of his
on his claim that under RA 8353, his marriage to liberty is in the custody of an officer under process
Victoria extinguished the criminal action issued by a court which had jurisdiction to issue the
against him for rape, as well as the penalty same applies. Moreover, a petition for habeas corpus
imposed on him. The court denied the motion on is not the appropriate remedy for asserting one's
the ground that it had lost jurisdiction over the right to bail. It cannot be availed of where accused is
case after its decision had become final and entitled to bail not as a matter of right but on the
executory. discretion of the court and the latter has not abused
such discretion in refusing to grant bail or has not
What remedy/ies should the counsel of Mariano even exercised said discretion. The proper recourse
take to secure his proper and most expeditious is to file an application for bail with the court where
release from the National Penitentiary? Explain. the criminal case is pending and to allow hearings
(2005 BAR) thereon to proceed.
A: His counsel should file a petition for habeas The issuance of a writ of habeas corpus would not
corpus for the illegal confinement of Mariano or a only be unjustified but would also preempt the
motion in the court which convicted Mariano to Sandiganbayan's resolution of the pending
nullify the execution of his sentence or the order of application for bail of Serapio. The recourse of
his commitment on the ground that a supervening Serapio is to forthwith proceed with the hearing on
development had occurred. his application for bail. (Serapio v. Sandiganbayan,
G.R. No. 148468, 28 Jan. 2003)
Q: Edward Serapio is under detention pursuant
to the order of arrest issued by the Q: After Alma had started serving her sentence
Sandiganbayan on April 25, 2001 after the filing for violation of BP 22, she filed a petition of writ
by the Ombudsman of the amended information of habeas corpus, citing Vaca v. CA where the
for plunder against Serapio and his co-accused. sentence of imprisonment of a party found
Serapio had in fact voluntarily surrendered guilty of violation of BP 22 was reduced to a fine
himself to the authorities on April 25, 2001 upon equal to double the amount of the check
learning that a warrant for his arrest had been involved. She prayed that her sentence be
issued. similarly modified and that she be immediately
released from detention. In the alternative, she
He filed a petition for habeas corpus contending prayed that pending determination on whether
that he is entitled to the issuance of said writ the Vaca ruling applies to her, she be allowed to
because the State, through the prosecution's post bail pursuant to Sec. 14, Rule 102.
refusal to present evidence and by the Accordingly, the trial court allowed Alma to post
Sandiganbayan's refusal to grant a bail hearing, bail and then ordered her release. In your
has failed to discharge its burden of proving that opinion, is the decision of the trial court correct
as against him, evidence of guilt for the capital under Rule 102? (2008 BAR)
offense of plunder is strong. He also maintains
that the issuance by the Sandiganbayan of new A: NO. Sec. 4, Rule 102 of the Rules of Court does not
orders cancelling the bail hearings which it had authorize a court to discharge by writ of habeas
earlier set did not render moot and academic corpus a person charged with or convicted of an
the petition for issuance of a writ of habeas offense in the Philippines, or of a person suffering
corpus, since said orders have resulted in a imprisonment under lawful judgment.
continuing deprivation of Serapio's right to bail.

2022 GOLDEN NOTES
Remedial Law
Q: Upon a complaint that he is issuing fake Alien the Rules of Court, on the ground that the Secretary
Certificate Registration, Morgan, a British of Justice acted with grave abuse of discretion
national was arrested by the Bureau of amounting to excess or lack of jurisdiction in
Immigration and Deportation (BID). The Board dismissing the appeal, the remedy of appeal not
of Commissioners (BOC) of the BID issued a being an adequate and speedy remedy. In case the
deportation order against Morgan. A week after, Secretary of Justice dismisses the appeal, the
Elisa, Morgan’s wife, filed a petition for the aggrieved party may also resort to filing a petition
issuance of a writ of habeas corpus with the for review under Rule 43 of the Rules of Court, as
Manila RTC naming the Immigration amended. (Johnson v. Makalino, G.R. No. 139255, 24
Commissioner as respondent. After trial, the Nov. 2003)
RTC dismissed Elisa’s petition on the ground
that a petition for the issuance of a writ of Habeas Corpus as Post-conviction Remedy
habeas corpus is not the proper remedy. Is the
RTC correct? GR: The writ may not be availed of when the person
in custody is under a judicial process or by virtue of
A: YES. The power to deport aliens is vested on the a valid judgment.
President of the Philippines, subject to the
requirements of due process. The Immigration XPN: However, as a post-conviction remedy, it may
Commissioner is vested with authority to deport be allowed when, as a consequence of a judicial
aliens under Sec. 37 of the Philippine Immigration proceeding, any of the following exceptional
Act of 1940, as amended. Thus, a party aggrieved by circumstances is attendant:
a Deportation Order issued by the BOC is proscribed
from assailing said order in the RTC via a petition 1. There has been a deprivation of a constitutional
for a writ of habeas corpus. right resulting in the restraint of a person;
2. The court had no jurisdiction to impose the
In case such motion for reconsideration is denied by sentence; or
the BOC, the aggrieved party may appeal to the 3. The imposed penalty has been excessive, thus
Secretary of Justice and, if the latter denies the voiding the sentence as to such excess. (De Leon
appeal, to the Office of the President of the & Wilwayco, 2020; Go v. Dimagiba, G.R. No.
Philippines. The party may also choose to file a 151876, 21 June 2005)
petition for certiorari with the CA under Rule 65 of

DISTINCTIONS BETWEEN WRIT OF HABEAS CORPUS AMPARO, HABEAS DATA AND KALIKASAN
HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN

Literal Interpretation
It is a Filipino word which

You have the body. To protect You have the data.
means “nature” in English
Availability
Special remedy available
to a natural or juridical
person, entity authorized
by law, people’s
organization, non-
Remedy available to any governmental
person whose right to organization, or any public
Writ directed to the
privacy in life, liberty or interest group accredited
person detaining another, Remedy available to any
security is violated or by or registered with any
commanding him to person whose right to
threatened by an government agency, on
produce the body of the life, liberty, and security
unlawful act or omission behalf of persons whose
prisoner at a designated is violated or
of a public official or constitutional right to a
time and place, with the threatened with
employee, or of a private balanced and healthful
day and cause of his violation by an unlawful
individual or entity ecology is violated, or
capture and detention, to act or omission of a
engaged in the gathering, threatened with violation
do, submit to, and receive public official or
collecting, or storing of by an unlawful act or
whatsoever the court or employee, or of a
data or information omission of a public
judge awarding the writ private individual or
regarding the person, official or employee, or
shall consider in that entity.
family, home and private individual or
behalf.
correspondence of the entity, involving
aggrieved party. environmental damage of
such magnitude as to
prejudice the life, health or
property of inhabitants in
two or more cities or
provinces.
Office of the Remedy
To order the protection of
the constitutional right to
To direct the public a balanced and healthful
To direct the person
officers involved to To order the disclosure ecology and restrain
detaining another to
conduct an investigation or destruction of data further acts that cause
produce the body of the
as to the whereabouts relating to the right to environmental damage of
person being detained
and legality of the life, liberty or security of such a magnitude that
and show the cause of
detention of a missing a person. prejudices the right to life,
detention.
person. health or property of
inhabitants in two or more
cities or provinces.

2022 GOLDEN NOTES
Remedial Law
Rights involved
Constitutional right to a
Right to life, liberty, and Right to informational
Right to liberty. balanced and healthful
security privacy.
ecology
Coverage
1. All cases of illegal

1. Gathering;
confinement or
2. Collecting; or
detention by which Environmental damage of
3. Storing data or
any person is deprived 1. Extrajudicial such magnitude as to
information
of liberty; and killings; and prejudice the life, health,
regarding:
2. Cases where the 2. Enforced or property of inhabitants
a. Person;
rightful custody of any disappearances. in two or more cities or
b. Family;
person is withheld provinces.
c. Home; or
from the person
d. Correspondence
entitled.
Venue
1.
RTC where the
petitioner or
respondent resides,
1. RTC of the place or that which has
where the threat, jurisdiction over the
1. RTC where the
act or omission was place where the data
person is detained;
committed or any of or information is
2. Sandiganbayan;
its elements gathered, collected
3. CA; 1. CA; or
occurred; or stored, at the
4. SC; or 2. SC.
2. Sandiganbayan; option of the
5. Any justice of the
3. CA or any justice petitioner;
three preceding
thereof; or 2. Sandiganbayan;
courts.
4. SC or any justice 3. CA; or
thereof. 4. SC when the action
concerns public data
files or government
offices.
Who may file Petition
1. Any aggrieved party;
Aggrieved party, or a
2. However, in cases of
qualified person or
extralegal killings and A natural or juridical
entity in the following
enforced person, entity authorized
order:
disappearances: by law, people’s
1. Party for whose relief 1. Any member of the
a. Any member of organization, non-
it is intended; or immediate family;
the immediate governmental
2. Any person on his 2. Any ascendant,
family; or organization, or any public
behalf. descendant, or
b. Any ascendant, interest group accredited
collateral relative of
descendant, or by or registered with any
the aggrieved party
collateral government agency.
within the 4th civil
relative of the
degree of
aggrieved party

consanguinity or within the 4th

affinity; or civil degree of
3. Any concerned consanguinity or
citizen, affinity.
organization,
association or
institution, if there
is no known
member of the
immediate family or
relative.
Respondent
Public official or
employee or a private
individual or entity
engaged in the gathering,
Public official or Public official or
May or may not be an collecting or storing of
employee or a private employee, private
officer. data or information
individual or entity. individual or entity.
regarding the person,
family, home and
correspondence of the
aggrieved party.
Enforceability of the Writ
If granted by SC, CA, or
Sandiganbayan:
Enforceable anywhere In Enforceable anywhere
the Philippines; in the Philippines Enforceable anywhere in Enforceable anywhere in
regardless of who the Philippines. the Philippines.
If granted by RTC: issued the same.
Enforceable only within
the judicial district.
Docket fees
Payment is required. Payment is required.
Petitioner is exempted Petitioner is exempted
NOTE: Rule on indigent from payment. NOTE: Rule on indigent from payment.
petitioner applies. petitioner applies.
Service of Writ
Served upon the person
Served upon the Served upon the Served upon the
to whom it is directed,
respondent personally; respondent personally; respondent personally; or
and if not found or has
or through substituted or through substituted through substituted
not the prisoner in his
service in case the writ service in case the writ service in case the writ
custody, to the other
cannot be served cannot be served cannot be served
person having or
personally. personally. personally.
exercising such custody.
Person who makes the Return
Officer by whom the
prisoner is imprisoned or Respondent Respondent Respondent
the person in whose

2022 GOLDEN NOTES
Remedial Law
custody the prisoner is

found.
When to file a return
The respondent shall file

a verified written return
Within 5 working days together with supporting
after service of the writ, affidavits within 5
Within non-extendible
On the day specified in the respondent shall file working days from
period of 10 days after the
the writ. a verified written return service of the writ, which
service of writ.
together with period may be
supporting affidavits. reasonably extended by
the Court for justifiable
reasons.
Return
If issued by RTC:
If granted by the SC or CA: returnable before such
returnable before the If issued by RTC: court;
court or any member or returnable before such
before RTC or any judge court; If issued by SB or CA or
thereof; any of their justices:
If issued by SB or CA or returnable before such
If granted by RTC: any of their justices: court or to any RTC of the
returnable before such returnable before such place where the
court court or to any RTC of petitioner or respondent
the place where the resides or that which has
In writ of habeas corpus threat, act or omission jurisdiction over the
in relation to custody of was committed or any place where the data or
If issued by SC, returnable
minors, the writ may be of its elements information is gathered,
before such court or CA.
made returnable to a occurred; collected or stored;
Family Court or to any
regular court within the If issued by SC or any of If issued by SC or any of its
region where the its justices: returnable justices: returnable
petitioner resides or before such court, or before such court, or
where the minor may be before SB, CA, or to any before SB, CA, or to any
found for hearing and RTC of the place where RTC where the petitioner
decision on the merits the threat, act or or respondent resides or
(Sec. 20, A.M. No. 03-04- omission was that which has
04-SC). committed or any of its jurisdiction over the
elements occurred. place where the data or
information is gathered,
collected or stored.

Effect of Failure to file Return

Hearing of the petition 1. Hearing of the
shall proceed ex parte. petition shall proceed
ex parte; and
2. The Court may also
grant the petitioner
such relief as the Hearing of the petition
petition may warrant, shall proceed ex parte.
UNLESS the Court, in
its discretion,
requires the
petitioner to submit
evidence.
Availabe Interim Remedies
1. Temporary
Protection Order;
1. Ocular Inspection
2. Inspection Order;
Order;
3. Production Order;
2. Inspection Order; and
and
3. Production Order.
4. Witness Protection
Order.
Quantum of Proof
Preponderance of
Substantial evidence Substantial evidence Substantial evidence
evidence
General Denial
Not prohibited Not allowed Not allowed Not allowed
Liability of the Person to whom Writ is directed if he Refuses to make Return
Forfeit to the aggrieved
Imprisonment or fine
party the sum of P 1000, Imprisonment or fine for
for committing Indirect contempt.
and may also be committing contempt.
contempt.
punished for contempt.
Hearing
Summary hearing shall Summary hearing shall
The hearing including the
be conducted not later be conducted not later
Date and time of hearing preliminary conference
than 7 days from the than 10 working days
is specified in the writ. shall not extend beyond 60
date of issuance of the from the date of issuance
days.
writ. of the writ.
Period of Appeal
Within 15 days from the
Within 48 hours from
5 working days from the 5 working days from the date of notice of the
notice of the judgment or
date of notice of the date of notice of the adverse judgment or
final order appealed
adverse judgment. judgment or final order. denial of motion for
from.
reconsideration.
Prohibited Pleadings
1. Motion to dismiss; 1. Motion to dismiss;
1. Motion to dismiss the
2. Motion for extension 2. Motion for extension
complaint;
of time to file of time to file return;

2022 GOLDEN NOTES
Remedial Law
opposition, affidavit, 3. Motion for 2. Motion for a bill of

position paper and postponement; particulars;
other pleadings; 4. Motion for a bill of 3. Motion for extension of
particulars; time to file pleadings,
NOTE: In writ of 5. Counterclaim or EXCEPT to file answer,
amparo, a motion for cross-claim; the extension not to
extension of time to 6. Third-party exceed 15 days;
file the return is no complaint; 4. Motion to declare the
longer a prohibited 7. Reply; defendant in default;
pleading, as it may 8. Motion to declare 5. Reply and rejoinder;
be granted by the respondent in default; and
court on highly 9. Intervention; 6. Third-party complaint.
meritorious cases. 10. Memorandum;
11. Motion for
3. Dilatory motion for Reconsideration of
postponement; interlocutory orders
4. Motion for a bill of or interim relief
particulars; orders; and
5. Counterclaim or 12. Petition for
cross - claim; certiorari,
6. Third - party mandamus, or
complaint; prohibition against
7. Reply; any interlocutory
8. Motion to declare order.
respondent in
default;
9. Intervention;
10. Memorandum;
11. Motion for
reconsideration of
interlocutory
orders or interim
relief orders; and
12. Petition for
certiorari,
mandamus or
prohibition against
any interlocutory
order.
2. WRIT OF HABEAS CORPUS paramount consideration. (Salientes v. Abanilla, G.R.

IN RELATION TO CUSTODY OF MINORS No. 162734, 29 Aug. 2006)
(A.M. No. 03-04-04-SC, Effective 15 May 2003)
Who may File a Petition for Custody of Minor
In a petition for habeas corpus, the child’s welfare is
the supreme consideration. The Child and Youth A verified petition for the rightful custody of a minor
Welfare Code unequivocally provides that in all may be filed by any person claiming such right. The
questions regarding the care and custody, among party against whom it may be filed shall be
others, of the child, his welfare shall be the

designated as the respondent. (Sec. 2, A.M. No. 03- 3. The material Operative facts constituting
04-04-SC) deprivation of custody;
4. Such other matters which are Relevant to the
Purpose of the Petition custody of the minor; and
5. Certificate of Non-Forum Shopping signed
In cases involving minors, the purpose of a petition personally by the petitioner. (Sec. 4, Ibid.)
for habeas corpus is not limited to the production of
the child before the court; the main purpose of the Requisites in Petitions for Habeas Corpus
petition for habeas corpus is to determine who has involving Minors (R-W-B)
the rightful custody over the child. (Bagtas v. Santos,
G.R. No. 166682, 27 Nov. 2009) 1. That the petitioner has the Right of custody
over the minor;
A writ of habeas corpus extends to all cases of illegal 2. That the rightful custody of the minor is being
confinement or detention or by which the rightful Withheld from the petitioner by the
custody of person is withheld from the one entitled respondent; and
thereto. It applies to the judicial guardian who was 3. That it is to the Best interest of the minor
duty-bound to care for and protect her ward. For the concerned to be in the custody of petitioner and
ward to perform her obligation, custody over the not that of the respondent. (Sombong v. CA, G.R.
child is warranted. Thus, a ward is entitled to a writ No. 11876, 31 Jan. 1996)
of habeas corpus after she was unduly deprived of
the custody of her ward. (Hernandez vs. San Juan- Q: May a motion to dismiss be filed?
Santos, G.R. No. 166470, 7 Aug. 2009)
A: NO. Motion to dismiss is not allowed except on
Where Filed the ground of lack jurisdiction over the subject
matter or the parties. (Sec. 6, Ibid.)
The petition for custody of minor is filed with the
Family court of the province or city where the Filing of Answer
petitioner resides or where the minor may be found.
(Sec. 3, Ibid.) NOTE: Respondent must file a verified answer
within five (5) days from the service of summons
The CA and the SC have concurrent jurisdiction with and copy of the petition. (Sec. 7, Ibid.)
Family courts in habeas corpus cases where the
custody of minors is involved. The provisions of RA Pre-trial is mandatory. (Sec. 9, Ibid.)
8369 must be read in harmony with RA 7029 and BP
129 ― that Family Courts have concurrent Provisional Order Awarding Custody
jurisdiction with the CA and the SC in petitions for
habeas corpus where the custody of minors is at As far as practicable, the following order of
issue. (Thornton v. Thornton, G.R. No. 154598, 16 preference shall be observed in the award of
Aug. 2004; Madriñan v. Madriñan, G.R. No. 159374, custody:
12 July 2007)
1. Both parents jointly;
Contents of the Verified Petition
(C-N-A-P-O-R-C) 2. Either parent, taking into account all relevant
considerations, especially the choice of the
1. The personal Circumstances of the petitioner minor over 7 years of age and of sufficient
and of the respondent; discernment, unless the grandparent chosen is
2. The Name, Age and Present whereabouts of the unfit or disqualified;
minor and his or her relationship to the
petitioner and the respondent;

2022 GOLDEN NOTES
Remedial Law
3. The grandparent or if there are several the parent so chosen be unfit to take charge of the
grandparents, the grandparent chosen by the child by reason of moral depravity, habitual
minor over 7 years of age and of sufficient drunkenness or poverty. (Sy v. CA, G.R. No. 124518,
discernment, unless the grandparent chosen is 27 Dec. 2007)
unfit or disqualified;
By filing a petition for declaration of nullity of
4. The eldest brother or sister over 21 years of age marriage, the issue of custody of the children is
unless he or she is unfit or disqualified; deemed automatically submitted pursuant to the
express provisions of Arts. 49 and 50 of the Family
5. The actual custodian of the minor over 21 years Code. (Yu v. Yu, G.R. No. 164915, 10 Mar. 2006)
of age unless the former is unfit or disqualified;
or Best Interest of the Minor
6. Any other person or institution the court may After trial, the court shall render judgment
deem suitable to provide proper care and awarding custody of the minor to the proper party
guidance for the minor. (Sec. 13, Ibid.) considering the best interests of the minor.
However, if it appears that both parties are unfit to
Temporary Visitation Rights have the care and custody of the minor, the court
may designate either:
The court shall provide in its order awarding
provisional custody appropriate visitation rights to 1. The paternal or maternal grandparent of the
the non-custodial parent or parents unless the court minor;
funds said parent or parents unfit or disqualified. 2. His oldest brother or sister;
(Sec. 15, Ibid.) 3. Any reputable person to take charge of such
minor; or
Issuance of Hold Departure Order 4. Commit him to any suitable home for children.
The minor child cannot be brought out of the The court may issue any order that is just and
country without leave from court while the petition reasonable permitting the parent who is deprived of
is pending. the care and custody of the minor to visit or have
temporary custody. (De Leon & Wilwayco, 2020)
The court, motu proprio or upon application under
oath, may issue ex parte a hold departure order, The controversy does not involve the question of
addressed to the Bureau of Immigration and personal freedom, because an infant is presumed to
Deportation, directing it not to allow the departure be in the custody of someone until he attains
of the minor from the Philippines without the majority age. In passing on the writ in a child
permission of the court. (Sec. 16, Ibid.) custody case, the court deals with a matter of an
equitable nature. Not bound by any mere legal right
In case of Legal Separation of the Parents of parent or guardian, the court gives his or her
claim to the custody of the child due weight as a
The custody of the minor children shall be awarded claim founded on human nature and considered
to the innocent spouse, unless otherwise directed generally equitable and just. Therefore, cases are
by the court in the interest of the minor children. decided, not on the legal right of the petitioner to be
But when the husband and wife are living separately relieved from unlawful imprisonment or detention,
and apart from each other, without decree of the as in the case of adults, but on the courts view of the
court, the court shall award the care, custody and best interests of those whose welfare requires that
control of each child as will be for his best interest, they be in custody of one person or another. In
permitting the child to choose which parent he short, the child’s welfare is the supreme
prefers to live with if he is over 7 years of age unless

consideration. (Sombong v. CA, G.R. No. 11876, 31 that Joey was able to show proof of any compelling
Jan. 1996) reason to wrest from the mother parental authority
over their minor child.
Q: Husband H files a petition for declaration of
nullity of marriage before the RTC of Pasig City. Q: In a petition for habeas corpus that was filed
Wife W files a petition for habeas corpus before by Loran against his estranged wife, as well as
the RTC of Pasay City, praying for custody over against his parents-in-law whom he alleged
their minor child. H files a motion to dismiss the were unlawfully restraining him from having
wife’s petition on the ground of the pendency of custody of his child, the trial court issued an
the other case. Rule. (2007 BAR) order directing the aforesaid persons to appear
in court and produce the child in question and to
A: The motion to dismiss the petition for habeas show cause why the said child should not be
corpus should be granted to avoid multiplicity of discharged from restraint. Does the trial court's
suits. The question of who between the spouses Order run counter to Art. 213 of the Family
should have custody of their minor child could also Code?
be determined in the petition for declaration of
nullity of their marriage which is already pending in A: NO. The assailed order of the trial court did not
the RTC of Pasig City. In other words, the petition grant custody of the minor to any of the parties but
filed in Pasay City, praying for custody of the minor was merely a procedural directive addressed to the
child is unnecessary and violates only the cardinal petitioners for them to produce the minor in court
rule of procedure against multiplicity of suits. and explain why they are restraining his liberty.
Hence, the latter suit may be abated by a motion to Moreover, Art. 213 of the Family Code deals with the
dismiss on the ground of litis pendentia. (Yu v. Yu, adjudication of custody and serves as a guideline for
G.R. No. 164915, 10 Mar. 2006) the proper award of-custody by the court. While the
petitioners can raise it as a counter argument in the
Q: In a petition for habeas corpus which he filed custody suit, it may not however be invoked by
before the CA, Joey sought custody of his minor them to prevent the father from seeing the child.
son from his former live-in partner, Loreta. Joey
alleged that the child's mother was abroad most Habeas corpus may be resorted to in cases where
of the time and thus, he should be given joint rightful custody is withheld from a person entitled
custody over their son. The CA, however, denied thereto. Under Art. 211 of the Family Code, both
the petition, and on the basis of Art. 213, par (2) parents in this case have joint parental authority
of the Family Code, awarded custody of the child over their child and consequently joint custody over
in favor of the mother. Was the CA correct in him. Further, although the couple is separated de
denying Joey’s petition for habeas corpus for the facto, the issue of custody has yet to be adjudicated
custody of his minor son? by the court. In the absence of a judicial grant of
custody, both parents are still entitled to the
A: YES. Under Art. 176 of the FC, parental authority custody of their child. (Salientes, et al. v. Abanilla, et
over an illegitimate child is vested solely in the al., G.R. No. 162734, 29 Aug. 2006)
mother, and this is true notwithstanding that the
child has been recognized by the father as his
offspring. At most, such recognition by the father
would be a ground for ordering the latter to give
support to, but not custody of, the child (David v. CA,
G.R. No. 111180, 16 Nov. 1995). Custody over the
minor in this case was therefore awarded correctly
to the mother, and this is all the more so in view of
Art. 213 of the Family Code which lays down the
Maternal Preference Rule. There is also no showing

2022 GOLDEN NOTES
Remedial Law
not one temporarily staying (Ong Huan Ting

E. CHANGE OF NAME vs. Rep., G.R. No. L-20997, 27 April 1967); and
(Rule 103) 2. Adopted child (Republic vs. Wong, G.R. No.
97906, 21 May 1992)
NOTE: The name that can be changed is the name

Purpose
that appears in the civil register, and not in the
baptismal certificate or that by which the person is
No entry in a civil register shall be changed or
known in the community. (Ng Yao Siong v. Republic,
corrected without a judicial order, except for
G.R. No. L-20306, 30 Oct. 1962)
clerical or typographical errors and change of first
name or nickname which can be corrected or
Q: A was adopted by B and C when A was only a
changed by the concerned city or municipal civil
toddler. Later on in life, A filed with the RTC a
registrar or consul general. (Sec. 1, R.A. No. 9084)
petition for change of name under Rule 103, as
he wanted to reassume the surname of his
Its objective is for prevention of fraud, since the rule
natural parents because the surname of his
involves substantial changes in a person's name. (De
adoptive parents sounded offensive and was
seriously affecting his business and social life.
The adoptive parents gave their consent to the
Nature of the Proceeding
petition for change of name. May A file a petition
for change of name? If the RTC grants the
A change of name is a special proceeding to
petition for change of name, what, if any, will be
establish the status of a person involving his
the effect on the respective relations of A with
relation with others, that is, his legal position in, or
his adoptive parents and with his natural
with regard to, the rest of the community. It is a
parents? Discuss. (2014 BAR)
proceeding in rem and, as such, strict compliance
with all jurisdictional requirements, particularly on
A: A should be allowed to change his surname
publication, is essential in order to vest the court
because the reasons he invoked are proper and
with jurisdiction thereover.
reasonable under the circumstances. Besides, his
adoptive parents have agreed on the change of his
For this purpose, the only name that may be
surname.
changed is the true or official name recorded in the
civil register. (Republic v. CA, G.R. No. 97906, 21 May
In a case with similar facts, Republic v. Wong (G.R.
1992)
No. 97906, 21 May 1992) the Supreme Court allowed
Maximo Wong to change his name to Maximo Alcala,
Hence, jurisdiction to hear and determine the
Jr. Maximo was the natural child of Spouses Maximo
petition for change of name is acquired after due
Alcala, Sr. and Segundina Y. Alcala. When he was
publication of the order containing certain data.
adopted by Spouses Hoong Wong and Conception
(Secan Kok v. Republic, G.R. No. L-27621, 30 Aug.
Ty, his name was changed to Maximo Wong. Upon
1973)
reaching the age of 22, he filed a petition to change
his name to Maximo Alcala, Jr. It was averred that
Who may File Petition
his use of the surname Wong embarrassed and
isolated him from his relatives and friends, as the
Under Rule 103, the word “person” is a generic term
same suggests a Chinese ancestry when in truth and
which is not limited to Filipino citizens, but
in fact he is a Muslim Filipino residing in a Muslim
embraces all natural persons (Yu v. Republic, G.R. No.
community, and he wants to erase any implication
L-20874, 25 May 1966).
whatsoever of alien nationality; that he is being
ridiculed for carrying a Chinese surname, thus
It includes:
hampering business and social life; and that his
1. Alien - must be domiciled in the Philippines,

adoptive mother does not oppose his desire to 4. The Cause for which the change of the
revert to his former surname. petitioner's name is sought.
Q: Dr. Ruben Bartolome filed a petition for NOTE: The petition shall be signed and verified by
change of name under Rule 103 of the Rules of the person desiring his name changed or some other
Court, seeking to correct the name 'Feliciano person in his behalf. However, the requirement of
Bartholome' as appearing in his birth certificate. verification is a formal, and not a jurisdictional
He stated that he has been using the name requisite. It is not a ground for dismissing the
'Ruben [Cruz] Bartolome' since his childhood. petition. (Yu v. Republic, supra)
The RTC denied Bartolome's petition, stating
that he should have filed his petition in Jurisdictional Facts
accordance with R.A. No. 9048; and as regards
his surname. Petitioner appealed to the CA, 1. Publication of petition for three (3) consecutive
contesting that it was Rule 103 as the weeks in newspaper of general circulation in
appropriate remedy. Is Bartolome correct? the province; and
2. Both title or caption and body shall recite: (N-C-
A: NO. A person may only avail of the appropriate N)
judicial remedies under Rule 103 or Rule 108 after
the petition in the administrative proceedings is a. Name/names or aliases of applicant;
filed and later denied. b. Cause for which change of name is sought;
and
In the instant case, petitioner seeks to change his c. New name asked for.
first name, to include his middle, and to correct the
spelling of his surname, i.e., from "Feliciano Reason: A change of name is a matter of public
Bartholome" as stated in his birth certificate to interest. (Secan Kok v. Republic, supra)
"Ruben Cruz Bartolome". The Court agrees with the
CA and the OSG that the aforementioned changes Jurisdictional Defects
and corrections are covered by Section 1 of R.A.
9048 as amended by R.A. 10172. (Bartolome v. The failure to include the true name of the party
Republic, G.R. No. 243288, 28 Aug. 2019, J. Caguioa) whose name is sought to be changed in the title of
the petition and of notices published in connection
Venue therewith precludes the court from obtaining
jurisdiction. Likewise, the failure to include the
Any person desiring to change his name shall name sought to be adopted in the title of the petition
present the petition to the RTC of the province and, consequently, the notices published in the
where the petitioner has been residing for three (3) newspapers, is a substantial jurisdictional infirmity.
years prior to the filing of the petition. (Sec. 1 in (In the Matter of the Change of Name of Hermogenes
relation to Sec. 2(a), Rule 103, ROC, as amended) Diangkinay, G.R. No. L-29850, 30 June 1972)
Contents of the Petition (B-A-N-C) The incorrect spelling of the petitioner’s name in the
petition and the order is a substantial defect
1. That the petitioner has been a Bona fide because it did not correctly identify the party in the
resident of the province where the petition is said proceedings. (Tan v. Republic, G.R. No. L-16384,
filed for at least three (3) years prior to the date 26 Apr. 1962)
of such filing;
2. All names and Aliases of petitioner; (Republic v.
Marcos, G.R. No. L-31065, 15 Feb. 1990)
3. The Name asked for (Sec. 2, Rule 103, ROC, as
amended); and

2022 GOLDEN NOTES
Remedial Law
Order for Hearing a. Within 30 days prior to an election; nor

b. Within four (4) months after the last
If petition sufficient in form and substance, the publication of the notice. (Sec. 3, Rule 103,
court, by an order reciting the purpose of the ROC, as amended)
petition, shall:
NOTE: The court shall grant the petition under Rule
1. Fix the date and place for the hearing thereof; 103 only when satisfactory proof has been
presented in open court that the order had been
2. Direct that a copy of the order be published at published as directed, the allegations in the petition
least once a week for three (3) consecutive are true, and proper and reasonable causes appear
weeks in a newspaper of general circulation in for changing the name of the petitioner. (Re: Final
the province; and Report on the Judicial Audit Conducted at the RTC,
BR. 67, Paniqui Tarlac, A.M. No. 06- 7-414-RTC, 19
3. Set the date for hearing which shall not be: Oct. 2007)
DIFFERENCES UNDER RULE 103, RA NO. 9048, AND RULE 108
R.A. NO. 9048

RULE 103 AS AMENDED BY RULE 108
R.A. No. 10172
Scope
Clerical or typographical errors;
change of first name or nickname,
the day and month in the date of
birth or sex of a person where it is Correction of or substantial
Change of full name or surname
patently clear that there was a errors or cancellation of entries in
(substantial corrections).
clerical or typographical error or the Civil Registry/ cancellation of
(De Leon and Wilwayco, 2020)
mistake in the entry, which can be entries.
corrected or changed by the
concerned City or Municipal Civil
Registrar or Consul General.
Nature
Judicial; hearing is necessary.
Administrative; hearing is not Adversarial because it involves
Judicial; hearing is necessary.
necessary. substantial errors and affects the
status of an individual.
Initiatory Pleading
Verified petition. Sworn affidavit. Verified petition.
Coverage
1. Correction of clerical or 1. Births;
typographical errors in civil 1. Correction of clerical or 2. Marriages;
registry documents, EXCEPT typographical errors in the civil 3. Deaths;
corrections involving the registry, INCLUDING correction 4. Legal separations;
change in sex, age, nationality, of date of birth and sex; and 5. Judgments of annulments of
and status of a person; and 2. Change of a person’s first name marriage;
2. Change of a person’s first or nickname in his or her civil 6. Judgments declaring
name or nickname in his or registry. marriages void from the
her civil registry. beginning;

7. Legitimations;
8. Adoptions;
9. Acknowledgment of natural
children;
10. Naturalization;
11. Election, loss, or recovery of
citizenship;
12. Civil interdiction;
13. Judicial determination of
filiation; and
14. Change of name
Grounds
1. Name is Ridiculous, tainted
with dishonor, or extremely
difficult to write or pronounce;
2. Change is a legal consequence
of legitimation or adoption;
3. Change will Avoid confusion;
1. Petitioner finds the first name or
4. When one has continuously
nickname to be ridiculous,
Used and been known since
tainted with dishonor, or
childhood by a Filipino name,
extremely difficult to write or
and was unaware of alien
pronounce;
parentage;
2. The new first name or nickname
5. Sincere desire to adopt Upon good and valid grounds
has been habitually and
Filipino name to erase signs of
continuously used by petitioner
former alienage, all in good
and he has been publicly known
faith and without prejudicing
by such name in the community;
anybody;
or
6. Surname causes
3. The change will avoid confusion.
Embarrassment and there is
no showing that the desired
change of name was for a
fraudulent purpose or that the
change of name would
prejudice public interest.
Where to file
1. Local Civil Registry office where

the record is kept;
RTC of the province where the
2. Local Civil Registrar of the place RTC of city or province where the
petitioner resides at least at least
where the interested party is corresponding civil registry is
three (3) years prior to the filing
presently residing or domiciled; located.
of the petition.
or
3. Philippine Consulate
Where to Appeal, in case of Adverse Decision

Civil Registrar General under Sec. 7
CA under Rule 41 (Rule 14, IRR of RA 9048) or CA CA under Rule 41
under Rule 43

2022 GOLDEN NOTES
Remedial Law
Who may file

Petition is filed by the person of
legal age who must have a direct
and personal interest in the
correction: Any person interested in the act,
event, decree or order
Filed by the person desiring to
1. Owner of the record; concerning the civil status of
change his name.
2. Owner’s spouse, children, persons. which has been
parents, brothers, sisters, recorded in the civil register.
grandparents, guardian; or
3. Anyone authorized by law or
owner of the record.
Who must be Notified
Civil registrar is impleaded as
Solicitor General/Interested Interested parties/Solicitor General
respondent; Solicitor General/
parties. need not be notified.
Interested parties.
Notice and Publication
Order for hearing in case of change
of first name or nickname, the day
Order for hearing shall be Order for hearing shall be
and month in the date of birth or sex
published once a week for three published once a week for three
of a person where it is patently clear
(3) consecutive weeks in a (3) consecutive weeks in a
that there was a clerical or
newspaper of general circulation newspaper of general circulation
typographical error or mistake shall
(notice of hearing). (notice of hearing). (2007 BAR)
be published once a week for two
(2) consecutive weeks.
Grounds for Change of Name (R-C-A-U-S-E) to the sound discretion of the court. (De Leon &
Wilwayco, 2020)
1. Name is Ridiculous, tainted with dishonor, or
extremely difficult to write or pronounce; When Petition is Granted
2. Change is a legal Consequence of legitimation or
adoption; The petition should be granted where there is:
3. Change will Avoid confusion; 1. Proper and reasonable cause; and
4. When one has continuously Used and been 2. Where there is no showing that the petition
known since childhood by a Filipino name, and was motivated by fraudulent intent, or that the
was unaware of alien parentage; change of name will prejudice public interest.
5. Sincere desire to adopt Filipino name to erase (Oshita v. Republic, G.R. No. L-21180, 31 Mar.
signs of former alienage, all in good faith and 1967)
without prejudicing anybody;
6. Surname causes Embarrassment and there is When Petition is NOT Granted
no showing that the desired change of name
was for a fraudulent purpose or that the change A change of name should not be permitted if it will
of name would prejudice public interest. give a false impression of family relationship to
(Republic v. CA, G.R. No. 97906, 21 May 1992) another where none actually exists. (Republic v.
Marcos, supra)
The above grounds are not exclusive. The matter of
whether to grant a petition for change of name is left

Change of Name is a Matter of Public Interest A minor was allowed to change his surname to his
morhter’s since he was never recognized by his
The State has an interest in the names borne by father while his mother has always recognized him
individuals and entities for purposes of as her child. A change of name will erase the
identification. A change of name is a privilege and impression that he was ever recognized by his
not a right (Republic v. Gallo, G.R. No. 207074, 17 Jan. father. (Republic v. Capote, G.R. No. 157043, 02 Feb.
2018). Before one can change his name, he must 2007)
show proper or reasonable cause, or any compelling
reason which may justify such change. (Yu Chi Han Q: Can an illegitimate child whose filiation is
v. Republic, G.R. No. L-22040, 29 Nov. 1965) NOT recognized by the father bear both the
mother’s surname as his middle name and his
Illegitimate Child may Now Use Father’s father’s surname as his surname?
Surname
A: An illegitimate child whose filiation is not
R.A. No. 9255 amended Art. 176 of the Family Code recognized by the father bears only a given name
allowing the illegitimate child to use the surname of and his mother’s surname and does not have a
the father if the latter expressly recognized filiation middle name. The name of the unrecognized
in a record of birth. (effective 19 Mar. 2004) illegitimate child therefore identifies him as such. It
is only when the illegitimate child is legitimated by
This modifies Leonardo v. CA (G.R. No. 125329, 10 the subsequent marriage of his parents or
Sept. 2003) disallowing an illegitimate child the acknowledged by the father in a public document or
right to use his/her father’s name. (Republic v. private handwritten instrument that he bears both
Wong, G.R. No. 88202, 14 Dec. 1998) his mother’s surname as his middle name and his
father’s surname as his surname, reflecting his
NOTE: This rule is subject to the requirement that status as a legitimated child or an acknowledged
filiation has been expressly recognized by the father illegitimate child. Accordingly, the registration in
through: the civil registry of the birth of such individuals
requires that the middle name be indicated in the
1. Record of birth appearing in the civil register; certificate. The registered name of a legitimate,
2. When an admission in a public document is legitimated and recognized illegitimate child thus
made by the father; and contains a given or proper name, a middle name,
3. When an admission in a private handwritten and a surname. (In Re: Petition for Change of Name
instrument is made by the father. (De Leon & and/or Correction/Cancellation of Entry in Civil
Wilwayco, 2020) Registry of Julian Lin Carulasan Wang, G.R. No.
159966, 30 Mar. 2005)
Who has the Choice of Name
Change of Name under Rule 108
Art. 176 of the Family Code, as amended by R.A. No.
9255, gives illegitimate children the right to decide The enactment in March 2001 of R.A. No. 9048 has
if they want to use the surname of the father or not. been considered to lend legislative affirmation to
the judicial precedence that substantial corrections
In fact, the Supreme Court in Grande v. Antonio (G.R. to the civil status of persons recorded in the civil
No. 206248, 18 Feb. 2014) voided provisions of the registry may be effected through the filing of a
IRR of R.A. No. 9255 insofar as it provides the petition under Rule 108. When all the procedural
mandatory use by illegitimate children of their requirements under Rule 108 are thus followed, the
father’s surname upon the latter’s recognition of his appropriate adversary proceeding necessary to
paternity. (De Leon & Wilwayco, 2020) effect substantial corrections to the entries of the
civil register is satisfied.

2022 GOLDEN NOTES
Remedial Law
With respect to the correction in Carlito’s birth Q: Petitioner sought to drop his middle name
certificate of his name from “Carlito John” to and have his registered name changed from
“Carlito,” the same was properly granted under Rule Julian Lin Carulasan Wang to Julian Lin Wang.
108 of the Rules of Court. The cancellation or Since in Singapore, middle names or the maiden
correction of entries involving changes of name falls surname of the mother are not carried in a
under letter “o” of the following provision of Section person’s name, they anticipate that Julian Lin
2 of Rule 108: “Entries subject to cancellation or Carulasan Wang will be discriminated against
correction. — Upon good and valid grounds, the because of his current registered name which
following entries in the civil register may be carries a middle name. Julian and his sister
cancelled or corrected: xxx (o) changes of name.” might also be asked whether they are brother
Hence, while the jurisdictional requirements of Rule and sister since they have different surnames.
103 (which governs petitions for change of name) Carulasan sounds funny in Singapore’s
were not complied with, observance of the Mandarin language since they do not have the
provisions of Rule 108 suffices to effect the letter “R” but if there is, they pronounce it as “L.”
correction sought for. (Republic v. Kho, G.R. No. It is for these reasons that the name of Julian Lin
170340, 28 June 2007) Carulasan Wang is requested to be changed to
Julian Lin Wang. Should the petition be granted?
No Need for Change of Name by Married Woman
A: NO. Middle names serve to identify the maternal
Q: Is there a need for change of name by a lineage or filiation of a person as well as further
married woman? distinguish him from others who may have the same
given name and surname as he has. Accordingly, the
A: NO. In case of annulment of marriage or divorce, registration in the civil registry of the birth of such
there is no need to file a petition for resumption of individuals requires that the middle name be
maiden name or surname. The true and real name indicated in the certificate. The registered name of a
of a person is that given to him and entered in the legitimate, legitimated and recognized illegitimate
civil register which a woman may continue to use child thus contains a given or proper name, a middle
despite her marriage or cessation of marriage for name, and a surname. In the case at bar, the only
whatever cause. The use of the husband’s name is reason advanced by petitioner for the dropping his
merely permissive and not obligatory which the middle name is convenience.
wife may continue to use except in case of legal
separation. (Yasin v. Judge Sharia District Court, G.R. However, how such change of name would make his
No. 94986, 23 Feb. 1995) integration into Singaporean society easier and
convenient is not clearly established. That the
Under Art. 370 of the New Civil Code, a married continued use of his middle name would cause
woman may use: confusion and difficulty does not constitute proper
and reasonable cause to drop it from his registered
1. Her maiden first name and surname and add complete name. (In Re Petition for Change of Name
her husband’s surname; and/or Correction/Cancellation of Entry of Civil
2. Her maiden first name and her husband’s Registry of Julian Lin Carulasan Wang, G.R. No.
surname; or 159966, 30 Mar. 2005)
3. Her husband’s full name, but prefixing a word
indicating that she is his wife, such as “Mrs.” Q: As may be gleaned from the petition, the
reasons offered for changing the name of
On the other hand, Art. 372 of the New Civil Code petitioner's daughter are: (1) that "her daughter
provides: “When legal separation has been granted, grew up with, and learned to love and recognize
the wife shall continue using her name and surname Alfredo de la Cruz as her own father"; (2) to
employed before the legal separation.” afford her daughter a feeling of security; and (3)
that "Alfredo de la Cruz agrees to this petition,

and has signified his conformity at the foot of government, it is for the legislature, should it choose
this pleading." Should the petition be granted? to do so, to determine what guidelines should
govern the recognition of the effects of sex
A: NO. Clearly, these are not valid reasons for a reassignment.
change of name. The general rule is that a change of
name should not be permitted if it will give a false The changes sought by petitioner will have serious
impression of family relationship to another where and wide-ranging legal and public policy
none actually exists. In Padilla v. Republic (G.R. No. consequences. First, to grant the changes sought by
L-28274, 30 Apr. 1982), it was specifically held that petitioner will substantially reconfigure and greatly
our laws do not authorize legitimate children to alter the laws on marriage and family relations. It
adopt the surname of a person not their father, for will allow the union of a man with another man who
to allow them to adopt the surname of their has undergone sex reassignment. Second, there are
mother's husband, who is not their father, can result various laws which apply particularly to women
in confusion of their paternity. such as the provisions of the Labor Code on
employment of women, certain felonies under the
Another reason for disallowing the petition for RPC and the presumption of survivorship in case of
change of name is that it was not filed by the proper calamities under Rule 131 of the Rules of Court,
party as provided under Secs. 1 and 2, Rule 103 of among others. (Silverio v. Republic, G.R. No. 174689,
the Rules of Court. The petition for change of name 22 Oct. 2007)
must be filed by the person desiring to change
his/her name. It must be her personal decision. No Where Change of Name Allowed arising from
one else may make it for her. The reason is obvious. Change of Gender
When she grows up to adulthood, she may not want
to use her stepfather's surname, nor any of the Q: Jennifer was born on Jan. 13, 1981 and was
aliases chosen for her by her mother. (Republic v. registered as a female in the Certificate of Live
Marcos, supra) Birth but while growing up, she developed
secondary male characteristics and was
A Person’s First Name Cannot be Changed on the diagnosed to have Congenital Adrenal
ground of Sex Reassignment Hyperplasia (CAH) which is a condition where
persons thus afflicted possess both male and
Q: Petitioner sought to have his name in his birth female characteristics. Jennifer filed a Petition
certificate changed from “Rommel Jacinto” to for Correction of Entries in Birth
“Mely,” and his sex from “male” to “female.” Certificate before the RTC, praying that her birth
Petitioner’s basis in praying for the change of his certificate be corrected such that her gender be
first name was his sex reassignment. He changed from female to male and her first name
intended to make his first name compatible with be changed from Jennifer to Jeff. Rule on the
the sex he thought he transformed himself into petition.
through surgery. Can a person’s first name be
changed on the ground of sex reassignment? A: CAH is one of many conditions that involve
intersex anatomy. During the twentieth century,
A: NO. A change of name does not alter one’s legal medicine adopted the term "intersexuality" to apply
capacity or civil status. R.A. No. 9048 does not to human beings who cannot be classified as either
sanction a change of first name on the ground of sex male or female. Where the person is biologically or
reassignment. Rather than avoiding confusion, naturally intersex the determining factor in his
changing petitioner’s first name for his declared gender classification would be what the individual,
purpose may only create grave complications in the like respondent, having reached the age of majority,
civil registry and the public interest. Also, there is no with good reason thinks of his/her sex. Sexual
such special law in the Philippines governing sex development in cases of intersex persons makes the
reassignment and its effects. In our system of

2022 GOLDEN NOTES
Remedial Law
gender classification at birth inconclusive. It is at Who may Oppose the Petition

maturity that the gender of such persons is fixed.
1. Any interested person; or
A change of name is not a matter of right but of 2. The Republic of the Philippines through the
judicial discretion, to be exercised in the light of the Solicitor General or the proper provincial or
reasons adduced and the consequences that will city prosecutor (Sec. 4, Rule 103, ROC, as
follow. The trial court’s grant of respondent’s amended)
change of name from Jennifer to Jeff implies a
change of a feminine name to a masculine name. Judgment
Considering the consequence that respondent’s
change of name merely recognizes his preferred Upon satisfactory proof in open court on the date
gender, there is merit in respondent’s change of fixed in the order that such order has been
name. Such a change will conform with the change published as directed and that the allegations of the
of the entry in his birth certificate from female to petition are true, the court shall, if proper and
male. reasonable cause appears for changing the name of
the petitioner, adjudge that such name be changed
Here, it is noteworthy to emphasize that respondent in accordance with the prayer of the petition. (Sec.
has simply let nature take its course and has not 5, Rule 103, ROC, as amended)
taken unnatural steps to arrest or interfere with
what he was born with. To him belongs the human A decree of adoption grants the adoptee the right to
right to the pursuit of happiness and of health. Thus, use the adopter’s surname, if change of first name is
to him should belong the primordial choice of what so desired, it must be prayed and alleged in the
courses of action to take along the path of his sexual petition for adoption. (Sec. 10, in relation to Sec. 16,
development and maturation. (Republic v. A.M. No. 02-6-02-SC)
Cagandahan, G.R. No. 166676, 12 Sept. 2008)
Service of Judgment
Notice to the Solicitor General
Judgments or orders shall be furnished the civil
The State has an interest in the names borne by registrar of the municipality or city where the court
individuals for purposes of identification, and that issuing the same is situated, who shall forthwith
changing one’s name is a privilege and not a right. enter the same in the civil register. (Sec. 6, Rule 103,
Accordingly, a person can be authorized to change ROC, as amended)
his name appearing in either his certificate of birth
or civil registry upon showing not only of Effect of Change of Name
reasonable cause, or any compelling reason which
may justify such change, but also that he will be A change of name does not define or effect a change
prejudiced by the use of his true and official name. of one’s existing family relations or in the rights and
(Republic v. Bolante, G.R. No. 160597, 20 July 2006) duties flowing therefrom. It does not alter one’s
legal capacity, civil status or citizenship; what is
The interest of the State which is represented by the altered is only the name. (Republic v. CA, G.R. No.
Solicitor General is paramount over personal right 97906, 21 May 1992)
to choose a name. The State must identify its
subjects. (Ong Peng Oan v. Republic, G.R. No. L-80035, A change of name granted by the court affects only
29 Nov. 1975) the petitioner. A separate petition for change of
name must be filed for his wife or children. The rules
are very explicit. Sec. 2 of Rule 103 of the Rules of
Court provides that a petition for a change of name
shall be signed and verified by the person desiring

his name to be changed, or some other person in his warning to the other party, and afforded the latter
behalf. (Secan Kok v. Republic, supra) an opportunity to contest it. (Republic v. Valencia, G.
R. No. L-32181, 05 Mar. 1986)
F. CANCELLATION OR CORRECTION OF No substantial change or correction in an entry in a

ENTRIES IN THE CIVIL REGISTRY civil register can be made without a judicial order,
(Rule 108) and, under the law, a change in citizenship status is
a substantial change. (Republic v. Kho, supra)
Reason for Adversarial Proceedings

Who may File Petition (1993 BAR)
The reason why non-clerical mistakes cannot be

Any person interested in any act, event, order or
corrected under the summary proceeding set by Art.
decree concerning the civil status of persons
412 of the Civil Code “lies in the fact that the books
recorded in the civil registry may file a verified
making up the civil register and all documents
petition. (Sec. 1, Rule 108)
relating thereto shall be considered as public
documents and shall be prima facie evidence of facts
Where to File
contained therein, and if the entries in the civil
register could be corrected or changed through a
In the RTC of the province where the corresponding
mere summary proceeding, and not through the
civil registrar is located. (Sec. 1, Rule 108, ROC, as
appropriate action, wherein all parties who may be
amended)
affected by the entries are notified or represented
we would set wide open the door to fraud or other
Nature of Proceedings
mischief the consequences of which might be
detrimental and far reaching.” (In Re: Cesar Yu v.
GR: Summary in nature.
Civil Registrar of Manila, G.R. No. L-36478, 29 Apr.
1983)
It should be limited solely to the implementation of
Art. 412 of the Civil Code. The said article
Requisites of Adversarial Proceedings
contemplates a summary hearing, involving
correction of clerical errors of a harmless,
1. Proper petition is filed where the Civil
innocuous nature, not changes involving civil status,
Registrar and all parties interested are
nationality, or citizenship, which are substantial or
impleaded;
controversial. (Ty Kong Tin vs. Republic, G.R. No. L-
2. The order of hearing must be published once a
5609, 05 Feb. 1954)
week for three (3) consecutive weeks;
3. Notice must be given to the Civil Registrar and
XPN: Adversarial proceedings if:
all parties affected thereby;
1. The procedural requisites under Secs. 3, 4, and
4. The civil registrar and any person interested,
5 of Rule 108 are followed; or
may within 15 days from notice or from the
2. When the civil registrar or any person having
last date of publication, files his opposition
or claiming interest in entries sought to be
thereto; and
cancelled and/or corrected files an opposition
5. Full blown trial (Republic v. Valencia, G.R. No. L-
and it is actively prosecuted. (Republic v. Kho,
32181, 5 Mar. 1986)
supra)
Reckoning Period
Adversarial Proceedings
The law did not fix a period within which the

One having opposing parties, contested, as
petition for correction under Rule 108 in relation to
distinguished from an ex parte application, one of
Art. 412 of Civil Code may be filed. When no such
which the party seeking relief has given legal

2022 GOLDEN NOTES
Remedial Law
period is fixed, Art. 1149, NCC provides that such the Rules praying that his records in the civil
petition may be filed within 5 years from the time registry be corrected to reflect his surname as
the petitioner discovered the error or mistake in the "Santos" instead of "Cu," his nationality as
civil registry, and not from the date the birth "Filipino" instead of "Chinese," his filiation as
certificate was registered in the civil registry. (Lee v. "illegitimate" instead of "legitimate," and his
CA, G.R. No. L-118387, 11 Oct. 2001) mother's civil status as "single" instead of
"married." Impleaded as respondents in his
Correction of Entry under Rule 108, Proceeding petition are the Local Civil Registrar of Manila,
in Rem National Statistics Office, and all persons who
shall be affected by the proceedings.
Substantial corrections or cancellations of entries in
civil registry records affecting the status or The Office of the Solicitor General was notified
legitimacy of a person may be effected through the through service of a copy of the petition. May
institution of a petition under Rule 108 of the Eduardo may impugn his legitimate status and
Revised Rules of Court, with the proper RTC. Being claim that he is a Filipino citizen through a
a proceeding in rem, acquisition of jurisdiction over petition for correction of entries in his COLB
the person of petitioner is therefore not required in filed under Rule 108 of the Rules?
the present case. It is enough that the trial court is
vested with jurisdiction over the subject matter. A: A petition for correction of entry under Rule 108
(Alba v. CA, G.R. No. 164041, 29 July 2005) of the Rules covers not only clerical errors, but also
substantial changes. The difference lies only on the
Substantial Corrections procedure which would govern the correction
sought. If the correction is clerical, then the
When a petition for cancellation or correction of an procedure to be adopted is summary. If the
entry in the civil register involves substantial and rectification affects the civil status, citizenship or
controversial alterations including those on nationality of a party, it is deemed substantial, and
citizenship, legitimacy of paternity or filiation, or the procedure to be adopted is adversary. In this
legitimacy of marriage, a strict compliance with the case, what Eduardo seeks to correct are not mere
requirements of Rule 108 is mandated. (Republic v. clerical errors as the changes sought to be carried
Coseteng-Magpayo, G.R. No. 189476, 02 Feb. 2011) out are substantial.
Indispensable Parties must be Notified Though publication of the notice of hearing may
cure the failure to implead all affected or interested
1. Civil Registrar; and parties in certain cases, Eduardo failed to
2. All persons who may have a claim or interest demonstrate to the Court that he exerted earnest
which would be affected thereby (Sec. 3, Rule efforts in bringing to court all possible interested
108, ROC, as amended) parties, including his siblings, their descendants,
and the purported Chinese wife of his father.
Summons must still be served, not for the purpose Nevertheless, the dismissal of Eduardo's petition for
of vesting the courts with jurisdiction, but to comply correction of entries and cancellation of annotation
with the requirements of fair play and due process. in his COLB is without prejudice to the filing of
This is but proper, to afford the person concerned another petition under Rule 108 to modify his
the opportunity to protect her interest if she so surname from "Cu" to "Santos," the last name of his
chooses. (Ceruila v. Delantar, G.R. No. 140305, 09 mother. (Santos v Republic, G.R. No. 221277, 18
Dec. 2005) March 2021)
Q: Eduardo filed a petition for correction of

entries and cancellation of annotation in his
certificate of live birth (COLB) under Rule 108 of

Duty of the Court

G. CLERICAL ERROR LAW
Upon the filing of the petition, it becomes the duty (Rule 108 in relation to R.A. No. 9048
of the court to: Effectivity Date: 22April 2001)
1. Issue an order fixing the time and place for the

hearing of the petition, and
Entries Subject to Cancellation or Correction
2. Cause the order for hearing to be published
(Bi-Ma-De-L-A-V-A-L-A-N-E-C-J-C)
once a week for 3 consecutive weeks in a
newspaper of general circulation in the
1. Births;
province. (Sec. 4, Rule 108, ROC, as amended)
2. Marriages;
3. Deaths;
Q: The allegations of the petition filed before the
4. Legal separations;
trial court clearly show that petitioners seek to
5. Judgments of Annulments of marriage;
nullify the marriage with which they ask the
6. Judgments declaring marriages Void from the
court to order Patrick to be subjected to a DNA
beginning;
test. Petitioners insist, however, that the main
7. Legitimation;
cause of action is for the correction of Patrick's
8. Adoptions;
birth records and that the rest of the prayers are
9. Acknowledgments of natural children;
merely incidental thereto. Should the petition
10. Naturalization;
prosper?
11. Election, loss or recovery of citizenship;
12. Civil interdiction;
A: NO. Petitioners' position does not lie. Their cause
13. Judicial determination of filiation; and
of action is actually to seek the declaration of Pablo
14. Change of name (Sec. 2, Rule 108, ROC, as
and Lucille's marriage as void for being bigamous
amended)
and impugn Patrick's legitimacy, which causes of
action are governed not by Rule 108 but by A.M. No.
Q: Celine files a petition for cancellation of the
02-11-10-SC which took effect on March 15, 2003,
birth certificate of her daughter Jeanie on the
and Art. 171 of the Family Code, respectively, hence,
ground of falsified material entries therein
the petition should be filed in a Family Court as
made by Celine’s husband as the informant. The
expressly provided in said Code. In a special
RTC sets the case for hearing and directs the
proceeding for correction of entry under Rule 108,
publication of the order once a week for 3
the trial court has no jurisdiction to nullify
consecutive weeks in a newspaper of general
marriages and rule on legitimacy and filiation.
circulation. Summons was served on the Civil
(Braza v. City Civil Registrar of Himamaylan City,
Registrar but there was no appearance during
Negros Occidental, G.R. No. 181174, 04 Dec. 2009)
the hearing. The RTC granted the petition.
Jeanie filed a petition for annulment of

judgment before the CA, saying that she was not
notified of the petition and hence, the decision
was issued in violation of due process. Celine
opposed saying that the publication of the court
order was sufficient compliance with due
process rule. (2007 BAR)
A: It should not be granted. The publication of an

order of hearing under Sec. 4 of Rule 108 cured the
failure to implead an indispensable party. A petition
for correction is an action in rem, an action against a

2022 GOLDEN NOTES
Remedial Law
thing and not against a person. Publication is notice Otherwise, the filiation of the said children would be
to the whole world that the proceeding has for its gravely affected, affecting not only his or her
object to bar indefinitely all who might be minded identity, but her successional rights as well.
to make an objection of any sort against the right Certainly, this change is substantial. (Miller v. Miller,
sought to be established. It is the publication of such G.R. No. 200344, 28 Aug. 2019)
notice that brings in the whole as a party in the case
and vests the court with jurisdiction to hear and Q: Mary Jane met Shiela May at the recruitment
decide it. (Republic v. Kho, supra; Alba v. CA, supra; agency where they both applied for overseas
Barco v. CA, G.R. No. 120587, 20 Jan. 2004) employment. They exchanged pleasantries,
including details of their personal
Q: Helen is the daughter of Eliza, a Filipina, and circumstances. Fortunately, Mary Jane was
Tony, a Chinese, who is married to another deployed to work as front desk receptionist at a
woman living in China. Her birth certificate hotel in Abu Dhabi where she met Sultan Ahmed
indicates that Helen is the legitimate child of who proposed marriage, to which she readily
Tony and Eliza and that she is a Chinese citizen. accepted. Unfortunately for Shiela May, she was
Helen wants her birth certificate corrected by not deployed to work abroad, and this made her
changing her filiation from "legitimate" to envious of Mary Jane.
"illegitimate" and her citizenship from
“Chinese" to "Filipino" because her parents were Mary Jane returned to the Philippines to
not married. What petition should Helen file and prepare for her wedding. She secured from the
what procedural requirements must be National Statistics Office (NSO) a Certificate of
observed? Explain. (2005 BAR) No Marriage. It turned out from the NSO records
that Mary Jane had previously contracted
A: A petition has to be filed in a proceeding under marriage with John Starr, a British citizen, which
Rule 108 of the Rules of Court. A petition to change she never did. The purported marriage between
the record of birth by changing the filiation from Mary Jane and John Starr contained all the
“legitimate” to “illegitimate” and petitioner’s required pertinent details on Mary Jane. Mary
citizenship from “Chinese” to “Filipino” does not Jane later on learned that Shiela May is the best
involve a simple summary correction which could friend of John Starr. As a lawyer, Mary Jane seeks
otherwise be done under the authority of R.A. No. your advice on her predicament. What legal
9048. remedy will you avail to enable Mary Jane to
contract marriage with Sultan Ahmed? (2014
Procedural Requirements under Rule 108 BAR)
include:
A: A Petition for Correction or Cancellation of Entry
1. Filing a verified petition; under Rule 108 may be filed by Mary Jane because
2. Naming as parties all persons who have or claim what she sought to be corrected is only the record
any interest which would be affected; of such marriage in the Civil Registry Office in order
3. Issuance of an order fixing the time and place of to reflect the truth as set forth by the evidence, and
hearing; not the nullification of marriage as there was no
4. Giving reasonable notice to the parties named marriage in the first place. (Republic v. Olaybar, G.R.
in the petition; and No. 189538, 10 Feb. 2014)
5. Publication of the order once a week for 3
consecutive weeks in a newspaper of general Q: Hades, an American citizen, through a dating
circulation. website, got acquainted with Persephone, A
Filipina. Hades came to the Philippines and
NOTE: The legitimacy and filiation of children proceeded to Baguio City where Persephone
cannot be collaterally attacked in a petition for resides. Hades and Persephone contracted
correction of entries in the certificate of live birth. marriage solemnized by the Metropolitan Trial

Court judge of Makati City. After the wedding, c. Before the court can hear the petition under
Hades flew back to California, United States of Rule 108 of the Rules of Court, Hades must
America, to wind up his business affairs. satisfy the following procedural requirements:
On his return to the Philippines, Hades i. Filing a verified petition;

discovered that Persephone had an illicit affair ii. Naming as parties all persons who have
with Phanes. Immediately, Hades returned to or claim any interest which would be
the United States and was able to obtain a valid affected;
divorce decree from the Superior Court of the iii. Issuance of an order fixing the time and
County of San Mateo, California, a court of place of hearing;
competent jurisdiction against Persephone. iv. Giving reasonable notice to the parties
Hades desires to marry Hestia, also a Filipina, named in the petition; and
whom he met at Baccus Grill in Pasay City. v. Publication of the order once a week for
3 consecutive weeks in a newspaper of
a. As Hades’ lawyer, what petition should you general circulation. (Rule 108, ROC, as
file in order that your client can avoid amended; Co v. Civil Register of Manila,
prosecution for bigamy if he desires to G.R. No. 138496, 24 Feb. 2004; Corpuz v.
marry Hestia? Tirol, G.R. No. 186571, 11 Aug. 2010)
b. In what court should you file the petition? R.A. No. 9048 as amended by R.A. No. 10172
Administrative Correction of Clerical or
c. What is the essential requisite that you must Typographical Error in an Entry and/or Change
comply with for the purpose of establishing of First Name or Nickname in the Civil Register
jurisdictional facts before the court can hear
the petition? (2015 BAR) R.A. No. 9048 now governs the change of first name.
It vests the power and authority to entertain
A: petitions for change of first name to the city or
a. As Hades’ lawyer, I would file a petition for municipal civil registrar or consul general
recognition of a foreign divorce decree, or at concerned. Under the law, therefore, jurisdiction
least a special proceeding for cancellation or over applications for change of first name is now
correction of entries in the civil registry under primarily lodged with the aforementioned
Rule 108 of the Rules of Court and include administrative officers.
therein a prayer for recognition of the
aforementioned divorced decree. Nature of Proceeding
In Corpus v. Sto. Tomas (G.R. No. 186571, The intent and effect of the law is to exclude the
August11, 2010), the High Court declared that change of first name from the coverage of Rules 103
the recognition of the foreign divorce decree (Change of Name) and 108 (Cancellation or
maybe made in a Rule 108 proceeding itself, as Correction of Entries in the Civil Registry) of the
the object of special proceedings (such that in Rules of Court, until and unless an administrative
Rule108 of the Rules of Court) is precisely to petition for change of name is first filed and
establish the status of a party or a particular subsequently denied. It likewise lays down the
fact. (Fujiki v. Marinay, G.R. No. 196049, June 26, corresponding venue, form and procedure. In sum,
2013) the remedy and the proceedings regulating change
of first name are primarily administrative in nature,
b. Petition for cancellation or correction of not judicial. (Silverio v. Republic, supra)
entries under Rule 108 should be filed in the
RTC of Makati City, where the corresponding
Local Civil Registry is located.

2022 GOLDEN NOTES
Remedial Law
Coverage (F-E-D-S) Q: Petitioner’s certificate of birth in the civil

registry, certificate of baptism, and elementary,
1. Change of first name or nickname; high school, and college diploma uniformly
2. Correction of clerical or typographical errors; show her name as Merlyn Mercadera. However,
3. Change of the day and month in the date of when she secured an authenticated copy of her
birth; and certificate of live birth from the National
4. Change of sex of a person. (Sec. 1 of R.A. No. 9048 Statistics Office, she discovered that her given
as amended by R.A. No. 10172) (2005 BAR) name as registered is Marilyn and not Merlyn.
Thus, she sought the correction of her given
NOTE: The obvious effect of R.A. No. 9048 is merely name from Marilyn to Merlyn under Rule 108 of
to make possible the administrative correction of the Rules of Court.
clerical or typographical errors or change of first
name or nickname in entries in the civil register, The OSG posits that the conversion from
leaving to Rule 108 the correction of substantial "MARILYN" to "MERLYN" is not a correction of an
changes in the civil registry in appropriate innocuous error but a material correction
adversarial proceedings. (Republic v. Benemerito, tantamount to a change of name which entails a
G.R. No. 146963, 15 Mar. 2004) modification or increase in substantive rights.
For the OSG, this is a substantial error that
R.A. No. 10172 which was approved on Aug. 15, requires compliance with the procedure under
2012 and became effective on Sept. 8 of the same Rule 103, and not Rule 108. Is the contention of
year, now allows the administrative correction of OSG correct?
(a) day and month of the date of birth and (b) sex of
a person provided that it is patently clear that there A: NO. The petition filed by Mercadera before the
was a clerical or typographical error or mistake in RTC correctly falls under Rule 108 as it simply
the entry. Moreover, the grounds enumerated are sought a correction of a misspelled given name. To
subject to the qualification that the error or mistake correct simply means "to make or set aright; to
to be corrected must be patently clear and it must remove the faults or error from." To change means
be within the competence of the local civil registrar "to replace something with something else of the
or consul general. (R.A. No. 10172, 08 Sept. 2012) same kind or with something that serves as a
substitute." From the allegations in her petition,
Clerical or Typographical Error Mercadera clearly prayed for the lower court "to
remove the faults or error" from her registered
It refers to a mistake committed in the performance given name "MARILYN," and "to make or set aright"
of clerical work in writing, copying, transcribing or the same to conform to the one she grew up to,
typing an entry in the civil register that is harmless "MERLYN." It does not take a complex assessment of
and innocuous, such as misspelled name or said petition to learn of its intention to simply
misspelled place of birth, mistake in the entry of day correct the clerical error in spelling. The CA did not
and month in the date of birth or the sex of the allow Mercadera the change of her name. What it
person or the like, which is visible to the eyes or did allow was the correction of her misspelled given
obvious to the understanding, and can be corrected name which she had been using ever since she could
or changed only by reference to other existing remember.
record or records.
Besides, granting that Rule 103 applies to this case
NOTE: No correction must involve the change of and that compliance with the procedural
nationality, age (correction on year of birth), or requirements under Rule 108 falls short of what is
status of the petitioner. (Sec. 2(3), R.A. No. 9048 as mandated, it still cannot be denied that Mercadera
amended by R.A. No. 10172; NSO Administrative complied with the requirement for an adversarial
Order No. 1 Series of 2012) proceeding before the lower court. The publication
and posting of the notice of hearing in a newspaper

of general circulation and the notices sent to the Where to File the Petition for Correction of Entry
OSG and the Local Civil Registry are sufficient or Change of Name under R.A. No. 9048
indicia of an adverse proceeding. The fact that no
one opposed the petition, including the OSG, did not 1. Resident of the Philippines – Local Civil
deprive the court of its jurisdiction to hear the same Registry Office (city or municipal civil registrar)
and did not make the proceeding less adversarial in of the city or municipality where the record
nature. Considering that the OSG did not oppose the being sought to be corrected or changed is kept.
petition and the motion to present its evidence ex
parte when it had the opportunity to do so, it cannot NOTE: The local civil registrar has primary, not
now complain that the proceedings in the lower exclusive, jurisdiction over such petitions for
court were procedurally defective. (Republic v. correction of clerical errors and change of first
Mercadera, G.R. No. 186027, 08 Dec. 2010) name or nickname, with R.A. No. 9048
prescribing the procedure that the petitioner
NOTE: Correction is allowed only on the day and and local civil registrar should follow. Since R.A.
month of birth but not on the year of birth because No. 9048 refers specifically to the
this will already alter the age of the petitioner. administrative summary proceeding before the
local civil registrar, it would be inappropriate to
R.A. No. 9048 as amended by R.A. No. 10172 does apply the same procedure to petitions for the
NOT apply to Substantial Corrections correction of entries in the civil registry before
the courts. (Re: Final Report on the Judicial Audit
Sec. 2(3), R.A. No. 9048 provides that a summary Conducted at the RTC, Br. 67, Paniqui, Tarlac,
administrative proceeding to correct clerical or A.M. No. 06-7-414-RTC, 19 Oct. 2007)
typographical errors in a birth certificate cannot
apply to a change in nationality. Substantial 2. When the petitioner has migrated to another
corrections to the nationality or citizenship of place within the Philippines and it is not
persons recorded in the civil registry should, practical for such party, in terms of
therefore, be effected through a petition filed in transportation expenses, time and effort to
court under Rule 108 of the Rules of Court. appear before the local civil registrar of the
(Kilosbayan Foundation v. Ermita, G.R. No. 177721, place of birth – Local Civil Registry Office (city
03 July 2007) or municipal civil registrar) of the place where
the petitioner is residing or domiciled.
Grounds for a Change of First Name or Nickname
under R.A. No. 9048 (C-U-R-E-D) 3. When the person is any person whose birth
record was reported abroad and presently
1. The petitioner finds the first name or nickname residing in the Philippines – Local Civil Registry
to be Ridiculous, tainted with Dishonor or Office (city or municipal civil registrar) of the
Extremely difficult to write or pronounce; place of residence following the procedures of
2. The new first name or nickname has been migrant petition.
habitually and continuously Used by the
petitioner and he has been publicly known by NOTE: Place of domicile is not included under
that first name or nickname in the community; this portion because it is understood that his
or domicile is abroad, his birth record having been
3. The change will avoid Confusion. (Sec. 4, RA reported therein, and under which Philippine
9048 as amended by R.A. No. 10172) laws do not apply. (Sec. 4, R.A. No. 10172 IRR,
A.O. No. 1, Series of 2012)
4. Citizens of the Philippines who are presently

residing or domiciled in foreign countries–
Nearest Philippine consulate (Consul General).

2022 GOLDEN NOTES
Remedial Law
(Sec. 4, R.A. No. 10172 IRR, A.O. No. 1, Series of Coverage

2012)
The Rule on the Writ of Amparo is now a procedural
NOTE: The Philippines Statistics Authority, law anchored, not only on the constitutional rights
being the central statistical authority of the to life, liberty and security, but on a concrete
Philippine Government, is mandated carry out statutory definition as well of what an ‘enforced or
and administer provisions of laws on civil involuntary disappearance’ is. Therefore, A.M. No.
registration. It is no longer the National 07-9-12-SC’s reference to enforced disappearances
Statistics Office or NSO. (R.A. No. 10625) should be construed to mean the enforced or
involuntary disappearance of persons
Q: Carla was born with two genitals, one for male contemplated in Sec. 3(g) of RA No. 9851, otherwise
and one for female. Only after maturity did his known as “Philippine Act on Crimes against
male dominant features becomes manifest. International Humanitarian Law, Genocide, and
Carla filed a petition for change of name to Carlo. Other Crimes against Humanity.” (Navia et al v.
The available evidence presented in court Pardico, G.R. No. 184467, 19 June 2012)
including the fact that Carla thinks of himself as
a male and as to the statement made by the Extrajudicial Killings
doctor that Carla’s body produces high levels of
male hormones, which is preponderant These are killings committed without due process of
biological support for considering him as male. law, legal safeguards or judicial proceedings.
Should the petition be granted? (Secretary of National Defense v. Manalo, G.R. No.
180906, 07 Oct. 2008)
A: YES. Compassion calls for recognition of the
various degrees of intersex as variations should not Enforced Disappearance
be subject to outright denial. The court must give
respect to: The arrest, detention, or abduction of persons by, or
with the authorization, support or acquiescence of,
1. The diversity of nature; and a State or a political organization followed by a
2. How an individual deals with what nature has refusal to acknowledge that deprivation of freedom
handed out. or to give information on the fate or whereabouts of
those persons, with the intention of removing from
His congenital condition and his mature decision to the protection of the law for a prolonged period of
be a male must be considered. (Republic v. time. (Sec. 3(g), R.A. No. 9851)
Cagandahan, supra)
Elements of Enforced Disappearance (A-A-R-R)
H. WRIT OF AMPARO 1. That there be an Arrest, detention, abduction or

(A.M. NO. 07-9-12-SC; any form of deprivation of liberty;
Effectivity Date: 25 Sept. 2007)
2. That it be carried out by, or with the
Authorization, support or acquiescence of, the
State or a political organization;
It is a remedy available to any person whose right to
life, liberty and security is violated or threatened
3. That it be followed by the State or political
with violation by an unlawful act or omission of a
organization’s Refusal to acknowledge or give
public official or employee, or of a private individual
information on the fate or whereabouts of the
or entity. The writ shall cover extralegal killings and
person subject of the amparo petition; and
enforced disappearances or threats thereof. (Sec. 1,
A.M. No. 07-9-12-SC)

4. That the intention for such refusal is to Remove An amparo proceeding is not criminal in nature.
the subject person from the protection of the While the principal objective of its proceedings
law for a prolonged period of time. (Navia, et al is the initial determination of whether an
v. Pardico, G.R. No. 184467, 19 June 2012) enforced disappearance, extralegal killing or
threats thereof had transpired—the writ does
Purpose of the Writ of Amparo not fix liability for such disappearance, killing
or threats, whether that may be criminal, civil
The writ of amparo serves both preventive and or administrative under the applicable
curative roles in addressing the problem of substantive law. (Roxas v. Macapagal Arroyo,
extralegal killings and enforced disappearances. It G.R. No. 189155, 07 Sept. 2010)
is preventive in that it breaks the expectation of
impunity in the commission of these offenses; it is 2. Prerogative Writ – It partakes of the nature of
curative in that it facilitates the subsequent a prerogative writ that does not determine guilt
punishment of perpetrators as it will inevitably nor pinpoint criminal culpability for the
yield leads to subsequent investigation and action. disappearance; rather, it determines
(Secretary of National Defense v. Manalo, G.R. No. responsibility, or at least accountability, for the
180906, 07 Oct. 2008) enforced disappearance for purposes of
imposing the appropriate remedies to address
The production order under the Amparo Rule the disappearance. (Razon, Jr. v. Tagitis, G.R. No.
should not be confused with a search warrant for 182498, 03 Dec. 2009)
law enforcement under Art. III, Sec. 2 of the 1987
Constitution. This Constitutional provision is a State Participation as Indispensable
protection of the people from the unreasonable Requirement
intrusion of the government, not a protection of the
government from the demand of the people such as State participation is an indispensable element for
respondents. Instead, the Amparo production order the issuance of a writ of amparo. Proof of
may be likened to the production of documents or disappearance alone is not enough. It is likewise
things under Sec. 1, Rule 27 of the Rules of Civil essential to establish that such disappearance was
Procedure. (Secretary of National Defense vs. carried out with the direct or indirect authorization,
Manalo, supra) support or acquiescence of the government.
Nature of Writ of Amparo While the writ may lie if the person sought to be
held accountable or responsible in an amparo
1. Summary Proceeding – The remedy provides petition is a private individual or entity, still,
rapid judicial relief as it partakes of a summary government involvement in the disappearance
proceeding that requires only substantial remains an indispensable element. This hallmark of
evidence to make the appropriate reliefs State participation differentiates an enforced
available to the petitioner; it is not an action to disappearance case from an ordinary case of a
determine criminal guilt requiring proof missing person. (Navia et al v. Pardico, supra)
beyond reasonable doubt, or liability for
damages requiring preponderance of evidence, Q: Virginia Pardico, in search of her missing
or administrative responsibility requiring husband, Ben Pardico, filed a Petition for Writ of
substantial evidence that will require full and Amparo before the RTC of Malolos City against
exhaustive proceedings. (Deliberations of the Navia, Dio, and Buising who were all security
Committee on the Revision of the Rules of Court, guards of Grand Royale Subdivision. Allegedly,
10 Aug. 2007, 24 Aug. 2007, 31 Aug. 2007 and 20 Ben was then invited to the security department
Sept. 2008) (2009, 2010 BAR) of the Grand Royale Subdivision for
investigation after he and Bong Lapore were
suspected of theft of electric wires and lamps in

2022 GOLDEN NOTES
Remedial Law
the subdivision. Navia, et al. assert that they had The threatened demolition of a dwelling by
released Ben together with Bong on the same virtue of a final judgment of the court is not
night of the investigation. Navia. et al. prayed for included among the enumeration of rights for
the denial of the petition for lack of merit. The which the remedy of a writ of amparo is made
RTC, however, granted the privilege of the writ available. Their claim to dwelling, assuming
of amparo. Is Virginia entitled to the privilege of they still have any despite the final and
the writ of amparo? executory judgment adverse to them, does not
constitute right to life, liberty and security.
A: NO. For the protective writ of amparo to issue in
enforced disappearance cases, allegation and proof There is, therefore, no legal basis for the
that the persons subject thereof are missing are not issuance of the writ of amparo. (Canlas v. Napico
enough. The petitioner in an amparo case has the Homeowners Association I-XIII, Inc., G.R. No.
burden of proving by substantial evidence the 182795, 05 June 2008)
indispensable element of government participation
which differentiates an enforced disappearance 2. In a labor dispute – Employment constitutes a
case from an ordinary case of a missing person. property right under the context of the due
process clause of the Constitution and does not
Here, the petition does not contain any allegation of constitute an unlawful violation of the right to
State complicity, and none of the evidence life, liberty, or security. (Meralco v Lim, G.R. No.
presented tend to show that the government or any 184769, 05 Oct. 2010)
of its agents orchestrated Ben’s disappearance or
that they failed to exercise extraordinary diligence NOTE: The rule is the same with respect to
in investigating his case. While a writ of amparo may habeas data. (Ibid.)
lie against a private individual or entity,
government involvement in the disappearance 3. For protection of right to travel – A person’s
remains an indispensable element. Navia, et al. are right to travel is subject to the usual constraints
mere security guards and their principal, the Asian imposed by the very necessity of safeguarding
Land, is a private entity. They do not work for the the system of justice. In such cases, whether the
government, and nothing has been presented that accused should be permitted to leave the
would link or connect them to some covert police, jurisdiction for humanitarian reasons is a
military or governmental operation. (Navia v. matter of the court’s sound discretion. (Marcos
Pardico, supra) v. Sandiganbayan, G.R. Nos. 115132-34, 09 Aug.
1995)
When Writ NOT Available
Here, the restriction on petitioner’s right to
1. For protection of a property or commercial travel as a consequence of the pendency of the
right – It is intended to address violations of or criminal case filed against him was not
threats to the rights to life, liberty or security, as unlawful. Petitioner has also failed to establish
an extraordinary and independent remedy that his right to travel was impaired in the
beyond those available under the prevailing manner and to the extent that it amounted to a
Rules, or as a remedy supplemental to these serious violation of his right to life, liberty and
Rules. What it is not, is a writ to protect security, for which there exists no readily
concerns that are purely property or available legal recourse or remedy. (Reyes v.
commercial. (Tapuz v. Del Rosario, G.R. No. Gonzalez, G.R. No. 182161, 03 Dec. 2009)
182484, 17 June 2008)
4. Inclusion of name in the Order of Battle –
NOTE: The rule is the same with respect to Mere inclusion in the military’s order of battle
habeas data. which is not supported by independent and
credible evidence stands on nebulous grounds.

The liberality accorded to amparo cases does NOTE: The doctrine does not, by any measure,
not mean that a claimant is dispensed with the preclude impleading military or police commanders
onus of proving his case. (Saez v. Macapagal on the ground that the complained acts in the
Arroyo, G.R. No. 183533, 25 Sept. 2012) petition were committed with their direct or
indirect acquiescence. They may be impleaded—not
NOTE: The rule is the same with respect to actually on the basis of command responsibility—
habeas data. but rather on the ground of their responsibility, or
at least accountability (Ibid.)
Responsibility and Accountability
When to Invoke Command Responsibility
The concept of responsibility is not the same as
accountability under an amparo proceeding. If command responsibility were to be invoked and
applied to these proceedings, it should, at most, be
1. Responsibility refers to the extent the actors only to determine the author who, at the first
have been established by substantial evidence instance, is accountable for, and has the duty to
to have participated in whatever way, by action address, the disappearance and harassments
or omission, in an enforced disappearance. complained of, so as to enable the Court to devise
remedial measures that may be appropriate under
2. Accountability refers to the measure of the premises to protect rights covered by the writ of
remedies that should be addressed to those: amparo. Thus, the doctrine of command
responsibility does not determine criminal, civil or
a. Who exhibited involvement in the administrative liabilities but is to be applied merely
enforced disappearance without bringing to ascertain responsibility and accountability of the
the level of their complicity to the level of persons involved. (Rodriguez v. Macapagal
responsibility defined above; Arroyo, G.R. No. 191805, 15 Nov. 2011)
b. Who are imputed with knowledge relating NOTE: The same rule applies with respect to habeas
to the enforced disappearance and who data.
carry the burden of disclosure; or
DIFFERENCES BETWEEN AMPARO
c. Who carry, but have failed to discharge, AND SEARCH WARRANT
the burden of extraordinary diligence in
the investigation of the enforced WRIT OF AMPARO SEARCH WARRANT
disappearance. (Razon, Jr. v. Tagitis, G.R. A.M. No. 07-9-12-SC Sec. 126, RCC
No. 182498, 03 Dec. 2009) As to Purpose
Criminal
Command Responsibility prosecution: To
Protective: To protect
discover and seize
The doctrine of command responsibility is a rule of a person’s right to life,
personal property in
substantive law that establishes liability and, by this liberty, or security.
furtherance of criminal
account, cannot be a proper legal basis to implead a prosecution.
party-respondent (President) in an amparo
petition. Since the application of command Where Filed
responsibility presupposes an imputation of 1. RTC where the
MTC/RTC within
individual liability, it is more aptly invoked in a full- threat or act is
whose territorial
blown criminal or administrative case rather than in committed;
jurisdiction or judicial
a summary amparo proceeding. The obvious reason 2. Sandiganbayan;
region a crime was
lies in the nature of the writ itself. (Roxas v. 3. CA; or
committed.
Macapagal-Arroyo, supra) 4. SC.

2022 GOLDEN NOTES
Remedial Law
Person Initiating 2. With the Sandiganbayan, CA, the SC, or any

Private or public Peace officer or law justice of such court.
person enforcement agency
Seizure of Personal Property The writ shall be enforceable anywhere in the
Under the Inspection Philippines. (Sec. 3, A.M. No. 07-9-12-SC)
Order and Production
Personal property is NOTE: The Rule allowing the filing of the petition
Order, personal
seized under Sec. 3, before the RTC does not require that the RTC have
property is not seized
Rule 126. jurisdiction over the offense complained of
but is merely inspected
and copied. jurisdiction can only be conferred by Congress. The
rule merely establishes a procedure to enforce the
Who may File right to life, liberty or security of a person which
requires the filing of the petition before the RTC of
Any aggrieved party may file the petition. It may the place where the threat, act or omission was
also be filed by any qualified person or entity in the committed or any of its elements.
following order: (I-R-C)
The intent is to prevent the filing of the petition in
1. Any member of the Immediate family, namely: some far-flung area to harass the respondent.
the spouse, children and parents of the Moreover, allowing the amparo petition to be filed
aggrieved party; in any RTC may prejudice the effective dispensation
of justice, as in most cases, the witnesses and the
2. Any ascendant, descendant or collateral evidence are located within the jurisdiction of the
Relative of the aggrieved party within the RTC where the act or omission was committed.
fourth civil degree of consanguinity or affinity, (Annotation on the Writ of Amparo, A.M. No. 07-9-12-
in default of those mentioned in the preceding SC)
paragraph; or
Contents of the Petition (P-R-I-A-R-O)
3. Any Concerned citizen, organization,
association or institution, if there is no known 1. Personal circumstances of the petitioner and of
member of the immediate family or relative of respondent responsible for the threat, act or
the aggrieved party. (Sec. 2, A.M. No. 07-9-12-SC) omission;
2. Violated or threatened Right to life, liberty or
The filing of a petition by the aggrieved party security of the party aggrieved. Stating in detail
suspends the right of all other authorized parties to the circumstances;
file similar petitions. Likewise, the filing of the 3. Specify the names, personal circumstances of
petition by an authorized party on behalf of the the Investigating authority or individuals, as
aggrieved party suspends the right of all others, well as the manner and conduct of
observing the order established herein. (Ibid.) investigation;
4. Actions and recourses taken by the petitioner to
This is to prevent the indiscriminate and groundless determine the whereabouts of aggrieved party
filing of petitions for amparo which may even and identity of the person responsible for the
prejudice the right to life, liberty or security of the threat, act or omission;
aggrieved party. 5. The Relief prayed for; and
6. A general prayer for Other just and equitable
Where to File reliefs may be included. (Sec. 5, A.M. No. 07-9-
12-SC)
1. RTC where the threat, act or omission was
committed or any of its elements occurred; or

Sufficiency of the Petition in Form and the aggrieved party, through any act or
Substance omission;
The pleader must state the ultimate facts 2. The steps or Actions taken by the respondent to
constituting the cause of action, omitting the determine the fate or whereabouts of the
evidentiary details. aggrieved party and the person or persons
responsible for the threat, act or omission;
However, in an amparo petition, this requirement
must be read in light of the nature and purpose of 3. All relevant Information in the possession of the
the proceeding, which addresses a situation of respondent pertaining to the threat, act or
uncertainty – the petitioner may not be able to omission against the aggrieved party;
describe with certainty how the victim exactly
disappeared, or who actually acted to kidnap, 4. If the respondent is a Public official or
abduct or arrest him or her, or where the victim is employee, the return shall further state the
detained, because these information may purposely actions that have been or will still be taken:
be hidden or covered up by those who caused the
disappearance. a. To verify the identity of the aggrieved
party;
In this type of situation, to require the level of b. To recover and preserve evidence related
specificity, detail and precision is to make the Rule to the death or disappearance of the
a token gesture of judicial concern for violations of person identified in the petition which
the constitutional rights to life, liberty and security. may aid in the prosecution of the person
or persons responsible;
The test in reading the petition should be to c. To identify witnesses and obtain
determine whether it contains the details available statements from them concerning the
to the petitioner under the circumstances, while death or disappearance;
presenting a cause of action showing a violation of d. To determine the cause, manner, location
the victim’s rights to life, liberty and security and time of death or disappearance as well
through State or party action. (Razon, Jr. v. Tagitis, as any pattern or practice that may have
G.R. No. 182498, 03 Dec. 2009) brought about the death or
disappearance;
In cases where the violation of the right to life, e. To identify and apprehend the person or
liberty or security has already ceased, it is necessary persons involved in the death or
for the petitioner in an amparo action to prove the disappearance; and
existence of a continuing threat. (Lozada v. f. To bring the suspected offenders before a
Macapagal-Arroyo, G.R. Nos. 184379-80, 31 Apr. competent court.
2012)
5. Other matters relevant to the investigation, its
Contents of Return resolution and the prosecution of the case. (Sec.
9, A.M. No. 07-9-12-SC, as amended)
Within 5 working days after service of the writ, the
respondent shall file a verified written return NOTE: A general denial of the allegations in the
together with supporting affidavits which shall, petition shall not be allowed.
among other things, contain the following: (D-A-I-
P-O) Where Returnable; Enforceable
1. The lawful Defenses to show that the 1. When issued by the RTC or a judge thereof, the
respondent did not violate or threaten with writ is returnable before such court or judge;
violation the right to life, liberty and security of

2022 GOLDEN NOTES
Remedial Law
2. When issued by the Sandiganbayan, CA or any XPN: Except on highly meritorious grounds. Thus, a
of their justices, it may be returnable to such motion for extension of time to file a return upon
court or any justice thereof, or to any RTC showing of a highly meritorious ground is no longer
where the threat, act or omission was a prohibited pleading.
committed or any of its elements occurred;
Omnibus Waiver Rule
3. When issued by the SC or any of its justices, it
may be returnable to such Court or any justice All defenses not raised in the return (answer) are
thereof, or before the Sandiganbayan or the CA deemed waived. (Sec. 10, A.M. No. 07-9-12-SC)
or any of their justices, or to any RTC in the
place where the threat, act or omission was It is different from the Omnibus Motion Rule which
committed or any of its elements took place. states that defenses not raised in a Motion to
(Sec. 3, A.M. No. 07-9-12-SC) Dismiss are deemed waived.
Q: Marinella is a junior officer of the Armed NOTE: A motion to dismiss is a prohibited pleading
Forces of the Philippines who claims to have in an application for a writ of amparo. The filing of a
personally witnessed the malversation of funds motion to dismiss even on the ground of lack of
given by US authorities in connection with the jurisdiction over the subject matter and the parties
Balikatan exercises. Marinella alleges that as a is proscribed to avoid undue delay. The grounds of
result of her exposé, there are operatives within a motion to dismiss should be included in the return
the military who are out to kill her. She files a and resolved by the court, using its reasonable
petition for the issuance of a writ of amparo discretion as to the time and merit of the motion.
against, among others, the Chief of Staff but (Sec. 11, A.M. No. 07-9-12-SC)
without alleging that the latter ordered that she
be killed. Atty. Daro, counsel for the Chief of Procedure for Hearing
Staff, moves for the dismissal of the Petition for
failure to allege that his client issued any order The nature of the hearing on the petition is
to kill or harm Marinella. Rule on Atty. Daro’s summary. However, the court, justice or judge may
motion. Explain. (2010 BAR) call for a preliminary conference to simplify the
issues and determine the possibility of obtaining
A: The motion to dismiss must be denied on the stipulations and admissions from the parties.
ground that it is a prohibited pleading under Sec.
11(a) of the Rule on the Writ of Amparo. Moreover, The hearing shall be from day to day until
said Rule does not require the petition therefor to completed and given the same priority as petitions
allege a complete detail of the actual or threatened for habeas corpus. (Sec. 13, A.M. No. 07-9-12-SC)
violation of the victim’s rights. It is sufficient that
there be an allegation of real threat against When Petitioner Fails to Appear
petitioner’s life, liberty and/or security.
If the petitioner fails to appear due to valid cause
Effects of Failure to File Return such as threats on his life, the court shall not dismiss
the petition, but shall archive it, if upon its
The court, justice or judge shall proceed to hear the determination it cannot proceed for a valid cause. A
petition ex parte. The hearing should not be delayed periodic review of the archived cases shall be made
by the failure of the respondent to file a return, by the amparo court that shall, motu proprio or upon
otherwise the right to life, liberty and security of a motion by any party, order their revival when ready
person would be easily frustrated. (Sec. 12, A.M. No. for further proceedings.
07-9-12-SC)
The petition shall be dismissed with prejudice upon
GR: The failure to file a return cannot be extended. failure to prosecute the case after the lapse of 2

years from notice to the petitioner of the order Institution of Separate Action
archiving the case (Sec. 20, A.M. No. 07-9-12-SC)
A separate action may be filed after filing a petition
NOTE: Due to the extraordinary nature if the writ, for a writ of amparo. It does not preclude the filing
which protects the mother of all rights – the right to of a separate criminal, civil or administrative action.
life – the petition may be filed on any day, including (Sec. 21, A.M. No. 07-9-12-SC)
Saturdays, Sundays and holidays; and at any time
from morning until evening. (Annotation to the Writ However, if the evidence so warrants, the amparo
of Amparo, A.M. NO. 07-9-12-SC) court may refer the case to the Department of
Justice for criminal prosecution. (Annotation on the
Issuance of the Writ Writ of Amparo, A.M. NO. 07-9-12-SC)
Upon the filing of the petition, the court, justice or An independent action for amparo is improper once
judge shall immediately order the issuance if the criminal proceedings have been commenced.
writ if on its face it ought to issue. The writ shall be Validity of the arrest or the proceedings conducted
served immediately. (Sec. 6, A.M. No. 07-9-12-SC) thereafter is a defense that may be set up by
respondents during trial and not before a petition
Privilege of the Writ of Amparo Different from for writ of amparo. The reliefs afforded by the writs
the Actual Order of the Writ of Amparo may, however, be made available to the aggrieved
party by motion in the criminal proceedings.
The privilege of the Writ of Amparo should be (Castillo v. Cruz, G.R. No. 182165, 25 Nov. 2009)
distinguished from the actual order called the Writ
of Amparo. The privilege includes availment of the NOTE: The rule is the same with respect to habeas
entire procedure outlined in A.M. No. 07-9-12-SC, data.
the Rule on the Writ of Amparo. After examining the
petition and its attached affidavits, the Return and Effect of Filing of a Criminal Action
the evidence presented in the summary hearing, the
judgment should detail the required acts from the When a criminal action has been commenced, no
respondents that will mitigate, if not totally separate petition for the writ shall be filed. The
eradicate, the violation of or the threat to the reliefs under the writ shall be available by motion in
petitioner’s life, liberty or security. the criminal case. The procedure under the Rule on
the Writ of Amparo shall govern the disposition of
A judgment which simply grants “the privilege of the reliefs available under the writ. (Sec. 22, A.M. No. 07-
writ” cannot be executed. It is tantamount to a 9-12-SC)
failure of the judge to intervene and grant judicial
succor to the petitioner. Petitions filed to avail of the Consolidation
privilege of the Writ of Amparo arise out very real
and concrete circumstances. Judicial responses When a criminal action is filed subsequent to the
cannot be as tragically symbolic or ritualistic as filing of a petition for the writ, the latter shall be
“granting the privilege of the Writ of Amparo.” (De consolidated with the criminal action.
Lima v. Gatdula, G.R. No. 204528, 19 Feb. 2013)
When a criminal action and a separate civil action
The writ should set the date and time for a summary are filed subsequent to a petition for a writ of
hearing of the petition which shall not be later than amparo, the latter shall be consolidated with the
seven (7) days from the date if its issuance. (Sec. 6, criminal action. After consolidation, the procedure
A.M. No. 07-9-12-SC) 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)

2022 GOLDEN NOTES
Remedial Law
Q: The residents of Mt. Ahohoy, headed by b. Are respondents correct in raising their
Masigasig, formed a nongovernmental defense?
organization – Alyansa Laban sa Minahan sa
Ahohoy (ALMA) to protest the mining operations c. Mayumi later filed separate criminal and
of Oro Negro Mining in the mountain. ALMA civil actions against Mapusok. How will the
members picketed daily at the entrance of the cases affect the amparo petition she earlier
mining site blocking the ingress and egress of filed? (2015 BAR)
trucks and equipment of Oro Negro, hampering
its operations. Masigasig had an altercation with A:
Mapusok arising from the complaint of the a. NO. The defense of Mapusok and APKA that
mining engineer of Oro Negro that one of their they are not agents of the State and hence
trucks was destroyed by ALMA members. cannot be impleaded as respondents in an
Mapusok is the leader of the Association of amparo petition is not tenable. The writ of
Peace Keepers of Ahohoy (APKA), a civilian amparo is available in cases where the enforced
volunteer organization serving as auxiliary or involuntary disappearance of a persons is
force of the local police to maintain peace and with the authorization, support or acquiescence
order in the area. Subsequently, Masigasig of the State. (Sec. 3(g), R.A. No. 9851; Navia v.
disappeared. Pardico, G.R. No. 184467, 19 June 2012)
Mayumi, the wife of Masigasig, and the members Here, Mapusok and APKA may be considered as
of ALMA searched for Masigasig, but all their acting with the support or at least the
efforts proved futile. Mapagmatyag, a member acquiescence of the State since APKA serves as
of ALMA, learned from Maingay, a member of an auxiliary force of the police and the police
APKA, during their binge drinking that refused to assist in the search for Masigasig.
Masigasig was abducted by other members of
APKA, on order of Mapusok. Mayumi and ALMA b. YES. Respondents are correct in raising their
sought the assistance of the local police to defense. Under Sec. 2(c) of the Rule on the Writ
search for Masigasig, but they refused to extend of Amparo, the filing of a petition by an
their cooperation. authorized party on behalf of the aggrieved
party suspends the right of all others, observing
Immediately, Mayumi filed with the RTC, a the order in Sec. 2 of the Rule on the Writ of
petition for the issuance of the writ of amparo Amparo. Here the petition for writ of amparo
against Mapusok and APKA. ALMA also filed a had earlier been filed by the spouse of the
petition for the issuance of the writ of amparo aggrieved party Masigasig. Thus, it suspends
with the Court of Appeals against Mapusok and the right of all others, including ALMA, to file the
APKA. Respondents Mapusok and APKA, in their petition.
Return filed with the RTC, raised among their
defenses that they are not agents of the State; c. The amparo petition shall be consolidated with
hence, cannot be impleaded as respondents in the criminal action. (Sec. 23, A.M. No. 07-9-12-
an amparo petition. SC)
a. Is their defense tenable? Respondents Interim Reliefs Available to Petitioner and

Mapusok and APKA, in their Return filed Respondent
with the Court of Appeals, raised as their
defense that the petition should be PETITIONER RESPONDENT
dismissed on the ground that ALMA cannot 1. Inspection
1. Temporary
file the petition because of the earlier order; and
protection order;
petition filed by Mayumi with the RTC. 2. Production
2. Inspection order;
order. (Sec. 15,

3. Production order; A.M. No. 07-9-12- disappearance is established by substantial

and SC) evidence, the relevant State agencies should be
4. Witness protection tasked to assiduously investigate and determine the
order (Sec. 14, A.M. disappearance, and, if warranted, to bring to the bar
No. 07-9-12-SC) of justice whoever may be responsible for the
disappearance. (Republic v. Cayanan, G.R. No.
NOTE: An interim relief cannot be granted 181796, 07 Nov. 2017)
independently when a writ of amparo has already
been issued. Provisional reliefs are intended to Public officials and employees must prove that
assist the court before it arrives at a judicious extraordinary diligence was exercised in the
determination of the amparo petition. The privilege performance of duty while only ordinary diligence
of the writ of amparo, once granted, necessarily is required for private individual or entity. Public
entails the protection of the aggrieved party. (Yano officials or employees are charged with a higher
v. Sanchez, G.R. No. 186640, 11 Feb. 2010) standard of conduct because it is their legal duty to
obey the Constitution, especially its provisions
Temporary Protection and Witness Protection protecting the right to life, liberty and security. They
Orders cannot simply invoke the presumption of regularity.
(Sec. 17, A.M. No. 07-9-12-SC)
Temporary protection and witness protection
orders may be issued motu proprio by the court Judgment
unlike inspection and protection orders which may
be issued only upon verified petition by the party. The court shall render judgment within ten (10)
(Sec. 14, A.M. No. 07-9-12-SC) days from the time the petition is submitted for
decision. (Sec. 18, A.M. No. 07-9-12-SC)
Inspection Order
No enforcement of five (5) days like in Habeas Data.
An inspection order is an interim relief designed to
give support or strengthen the claim of a petitioner Judgment Subject to Appeal via Rule 45
in an amparo petition, in order to aid the court
before making a decision. While the Amparo Rule If the allegations are proven with substantial
does not require that the place to be inspected be evidence, the court shall grant the privilege of the
identified with clarity and precision, it is, writ and such reliefs as may be proper and
nevertheless, a minimum for the issuance of an appropriate. The judgment should contain
inspection order that the supporting allegations of a measures, which the judge views as essential for the
party be sufficient in itself, so as to make a prima continued protection of the petitioner in the
facie case. (Roxas v. Macapagal Arroyo, supra) Amparo case. These measures must be detailed
enough so that the judge may be able to verify and
Quantum of Proof in Application for Issuance of monitor the actions taken by the respondents. It is
Writ of Amparo this judgment that could be subject to appeal to the
Supreme Court via Rule 45. (De Lima v. Gatdula,
In a petition for a writ of amparo, the parties shall supra)
establish their claims by substantial evidence. (Sec.
17, A.M. No. 07-9-12-SC) Appeal (2012 BAR)
NOTE: Substantial evidence is sufficient in Any party may appeal from the final judgment or
proceedings involving petitions for the writ order to the SC under Rule 45 within five (5) days.
of amparo. The respondent must show in the return The appeal may raise not only questions of law but
on the writ of amparo the observance of also questions of fact or both because its subject is
extraordinary diligence. Once an enforced extralegal killings or enforced disappearances,

2022 GOLDEN NOTES
Remedial Law
which might necessitate a review of errors of fact. correspondence of the aggrieved party. Any civil,
(Sec. 19, A.M. No. 07-9-12-SC) criminal, or administrative liability may only be
imposed in a separate action. (Castillo v. Cruz, G.R.
Doctrine of Totality of Evidence No. 182165, 25 Nov. 2009)
The court must consider all the pieces of evidence Nature of Hearing on the Petition
adduced in their totality, not in isolation with each
other, and to consider any evidence otherwise The nature of the hearing on the petition is
inadmissible under our usual rules to be admissible summary. However, the court, justice or judge may
if it is consistent with the admissible evidence call for a preliminary conference to simplify the
adduced. In other words, we reduce our rules to the issues and determine the possibility of obtaining
most basic test of reason – i.e., to the relevance of stipulations and admissions from the parties. (Sec.
the evidence to the issue at hand and its consistency 15, A.M. No. 08-1-16-SC)
with all other pieces of adduced evidence. Thus,
even hearsay evidence can be admitted if it satisfies Scope of Writ
this basic minimum test. (Razon, Jr. v. Tagitis, supra)
As an independent and summary remedy to protect
the right to privacy – especially the right to
I. WRIT OF HABEAS DATA informational privacy – the proceedings for the
(A.M. No. 08-1-16-SC) issuance of the writ of habeas data does not entail
Effectivity Date: 02 Feb. 2008 any finding of criminal, civil or administrative
culpability. (Rodriguez v. Macapagal-Arroyo, G.R. No.
191805, 15 Nov. 2011)
It is a remedy available to any person whose right to

Reliefs Granted by the Court
privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a
If the allegations in the petition are proven through
public official or employee, or of a private individual
substantial evidence, then the Court may:
or entity engaged in the gathering, collecting or
storing of data or information regarding the person,
1. Grant access to the database or information;
family, home and correspondence of the aggrieved
2. Enjoin the act complained of; or
party. (Sec. 1, A.M. No. 08-1-16-SC) (2009, 2010
3. In case the database or information contains
BAR)
erroneous data or information, order its
deletion, destruction or rectification.
Objective
(Rodriguez v. Arroyo, G.R. No. 191805, 15 Nov.
2011)
The writ of habeas data was conceptualized as a
judicial remedy enforcing the right to privacy, most
NOTE: The remedies include updating, rectification,
especially the right to informational privacy of
suppression, or destruction of the database or
individuals. The writ operates to protect a person’s
information or files in possession or control of the
right to control information regarding himself,
respondents. It is not limited to cases of extralegal
particularly in the instances where such
killings and enforced disappearances (Vivares v. St.
information is being collected through unlawful
Theresa’s College, G.R. No. 202666, 29 Sept. 2014)
means in order to achieve unlawful ends. (Roxas v.
Macapagal Arroyo, supra)
Where the Writ of Habeas Data is NOT
Applicable
In a proceeding for a writ of habeas data, courts only
determine the respondent's accountability in the
While the writ of habeas data is a remedy available
gathering, collecting, or storing of data or
for the protection of one’s right to privacy, the state
information regarding the person, family, home, and

interest in dismantling private armed groups a. Gathering;

outweighed the alleged intrusion of a person’s b. Collecting; or
private life. c. Storing of data or information regarding
the person family, home and
Related Jurisprudence correspondence of the aggrieved party.
(Sec. 1, A.M. No. 08-1-16-SC)
Gamboa was unable to prove through substantial
evidence that her inclusion in the list of individuals NOTE: The writ however will not issue on the basis
maintaining Private Army Groups made her and her merely of an alleged unauthorized access to
supporters susceptible to harassment and to information about a person. Availment of the writ
increased police surveillance. In this regard, requires the existence of a nexus between the right
respondents sufficiently explained that the to privacy on the one hand, and the right to life,
investigations conducted against her were in liberty or security on the other. Thus, the existence
relation to the criminal cases in which she was of a person’s right to informational privacy and a
implicated. As public officials, they enjoy the showing, at least by substantial evidence, of an
presumption of regularity, which she failed to actual or threatened violation of right to privacy in
overcome. life, liberty, or security of the victim are
indispensable before the privilege of the writ may
The state interest of dismantling PAGs far be extended.
outweighs the alleged intrusion on the private life of
Gamboa, especially when the collection and Right to informational privacy is defined as the right
forwarding by the PNP of information against her of individuals to control information about
was pursuant to a lawful mandate. Therefore, the themselves. And such right depends on the
privilege of the writ of habeas data must be denied. existence of “expectational privacy” a person has
(Gamboa v. Chan, G.R. No. 193636, 24 July 2011) toward particular information. Before one can have
expectational privacy, it must be shown the the
Until such time that any of the respondents were person intended such information to be private
found to be actually responsible for the abduction (Vivares v. St. Theresa’s College, G.R. No. 202666, 29
and torture of the petitioner, any inference Sept. 2014)
regarding the existence of reports being kept in
violation of the petitioners right to privacy becomes Who may File
farfetched, and premature. (Roxas v. Macapagal
Arroyo, G.R. No. 189155, 07 Sept. 2010) An aggrieved party whose right to privacy in life,
liberty or security is violated or threatened may file
The incumbent Chief Executive cannot be hauled to a petition.
court even for the limited purpose under the Rules
on the Writ of Habeas Data on the basis of However, in cases of extralegal killings and enforced
presidential immunity from suit. (De Lima v. disappearances, the petition may be filed by:
President Duterte, G.R. No. 227635, 15 Oct. 2019)
1. Any member of the immediate family of the
Availability of Writ of Habeas Data aggrieved party, namely: the spouse, children
and parents; or
1. To any person;
2. Whose right to privacy in life, liberty and 2. Any ascendant, descendant or collateral
security is violated or threatened; relative of the aggrieved party within the fourth
3. With violation by an unlawful act or omission of civil degree of consanguinity or affinity, in
a public official or employee, or of a private default of those mentioned in the preceding
individual or entity engaged in: paragraph. (Sec. 2, A.M. No. 08-01-16-SC)

2022 GOLDEN NOTES
Remedial Law
NOTE: Unlike in amparo, human rights information, and purpose of its collection;
organizations or institutions are no longer allowed ii. Steps or actions taken by respondent to
to file the petition. ensure the security and confidentiality of
the data or information;
Contents of the Petition iii. Currency and accuracy of the data and
information held; and
A verified petition for a writ of habeas data should
contain the following: (P-M-L-A-R-O) c. Other allegations relevant to the resolution of
the proceeding;
a. The Personal circumstances of the petitioner
and the respondent; A general denial of the allegations in the petition
b. The Manner the right to privacy is violated or shall not be allowed. (Sec. 10, A.M. No. 08-1-16-SC)
threatened and how it affects the right to life,
liberty or security of the aggrieved party; NOTE: In case the respondent fails to file a return,
c. The Location of the files, registers or databases, the court, justice or judge shall proceed to hear the
the government office, and the person in petition ex parte, granting the petitioner such relief
charge, in possession or in control of the data or as the petition may warrant unless the court in its
information, if known; discretion requires the petitioner to submit
d. The Actions and recourses taken by the evidence. (Sec. 14, A.M. No. 08-1-16-SC)
petitioner to secure the data or information;
e. The Reliefs prayed for, which may include the The court, justice or judge may punish with
updating, rectification, suppression or imprisonment or fine a respondent who commits
destruction of the database or information or contempt by making a false return, or refusing to
files kept by the respondent. In case of threats, make a return; or any person who otherwise
the relief may include a prayer for an order disobeys or resist a lawful process or order of the
enjoining the act complained of; and court. (Sec. 11, A.M. No. 08-1-16-SC)
f. Such Other relevant reliefs as are just and
equitable (Sec. 6, A.M. No. 08-1-16-SC) Instances when Petition May be Heard in
Chambers
NOTE: Sec. 6 of the Rule on the Writ of Habeas Data
requires material allegations of ultimate facts in a Hearing in chambers may be conducted where
petition for the issuance of a writ of habeas data. respondent invokes the defense that the release of
the data or information shall compromise:
Contents of Return
1. National security;
The respondent, within five (5) working days from 2. State secrets; and
the service of the writ, unless reasonably extended 3. When the data or information cannot be
by the Court, shall file a verified return containing: divulged to the public due its nature or
privileged character. (Sec. 12, A.M. No. 08-1-16-
a. Lawful defenses such as national security, state SC)
secrets, privileged communication,
confidentiality of the source of information of Consolidation
media and others;
1. When a criminal action is filed subsequent to
b. If respondent in charge, in possession or in the filing of a petition for the writ, the latter
control of the data or information subject of the shall be consolidated with the criminal action;
petition: or
i. Disclosure of the data or information 2. When a criminal action and a separate civil
about petitioner, nature of such data or action are filed subsequent to a petition for a

writ of habeas data, the petition shall be designated by the court, justice or judge within
consolidated with the criminal action. 5 working days. (Sec. 16, A.M. No. 08-1-16-SC)
After consolidation, the procedure under the Rule 3. The officer who executed the final judgment
shall continue to govern the disposition of the shall, within 3 days from its enforcement, make
reliefs in the petition. (Sec. 21, A.M. No. 08-1-16-SC) a verified return to the court. The officer shall
state in the return how the judgment was
Effect of Filing of a Criminal Action enforced and complied with by the respondent,
as well as all objections of the parties regarding
When a criminal action has been commenced, no the manner and regularity of the service of the
separate petition for the writ shall be filed. The writ. (Sec. 17, A.M. No. 08-1-16-SC)
reliefs under the writ shall be available by motion in
the criminal case. (Sec. 22, A.M. No. 08-1-16-SC) 4. The court shall set the return for hearing with
due notice to the parties and act accordingly.
Institution of Separate Action (Sec. 18, A.M. No. 08-1-16-SC)
This Rule shall not preclude the filing of separate Appeal

criminal, civil or administrative actions. (Sec. 20,
A.M. No. 08-1-16-SC) Any party may appeal from the final judgment or
order to the Supreme Court under Rule 45. The
Quantum of Proof in Application for Issuance of appeal may raise questions of fact or law or both.
Writ of Habeas Data The period of appeal shall be five (5) working days
from the date of notice of the judgment or final
If the allegations in the petition are proven by order. The appeal shall be given the same priority as
substantial evidence, the court shall enjoin the act in habeas corpus and amparo cases. (Sec. 19, A.M.
complained of, or order the deletion, destruction, or No. 08-1-16-SC)
rectification of the erroneous data or information
and grant other relevant reliefs as may be just and Issuance of the Writ vs. Privilege of the Writ
equitable; otherwise, the privilege of the writ shall
be denied. (Sec. 16, A.M. No. 08-1-16-SC) ISSUANCE OF PRIVILEGE OF
THE WRIT THE WRIT
NOTE: The Court has ruled that in view of the This is issued upon the This is issued after
recognition of the evidentiary difficulties attendant filing of the petition if on hearing, in the form of
to the filing of a petition for the privilege of the writs its face it ought to issue. a judgment.
of amparo and habeas data, not only direct evidence,
but circumstantial evidence, indicia, and NOTE: Upon the filing of NOTE: The court shall
presumptions may be considered, so long as they the petition, the court, render judgment
lead to conclusions consistent with the admissible justice or judge shall within 10 days from
evidence adduced. (Saez v. Macapagal-Arroyo, G.R. immediately order the the time the petition is
No. 183533, 25 Sep. 2012) issuance of the writ if on submitted for
its face it ought to issue. decision. If the
Judgment The clerk of court shall allegations in the
issue the writ under the petition are proven by
1. The court shall render judgment within ten (10) seal of the court and substantial evidence,
days from the time the petition is submitted for cause it to be served the court shall enjoin
decision. (Sec. 16, A.M. No. 08-1-16-SC) within 3 days from its the act complained of,
issuance; or, in case of or order the deletion,
2. Upon its finality, the judgment shall be enforced urgent necessity, the destruction, or
by the sheriff or any lawful officers as may be justice or judge may rectification of the

2022 GOLDEN NOTES
Remedial Law
issue the writ under his erroneous data or 10. R.A. No. 4850, Laguna Lake Development
or her own hand, and information and grant Authority Act;
may deputize any officer other relevant reliefs 11. R.A. No. 6969, Toxic Substances and
or person to serve it. as may be just and Hazardous Waste Act;
The writ shall also set equitable; otherwise, 12. R.A. No. 7076, People’s Small-Scale Mining Act;
the date and time for the privilege of the 13. R.A. No. 7586, National Integrated Protected
summary hearing of the writ shall be denied. Areas System Act including all laws, decrees,
petition which shall not (Sec. 16, A.M. No. 07-9- orders, proclamations and issuances
be later than 10 work 12) establishing protected areas;
days from the date of its 14. R.A. No. 7611, Strategic Environmental Plan
issuance. (Sec. 7, A.M. for Palawan Act;
No. 07-9-12) 15. R.A. No. 7942, Philippine Mining Act;
16. R.A. No. 8371, Indigenous Peoples Rights Act;
17. R.A. No. 8550, Philippine Fisheries Code;
J. RULES OF PROCEDURE FOR 18. R.A. No. 8749, Clean Air Act;
ENVIRONMENTAL CASES 19. R.A. No. 9003, Ecological Solid Waste
(A.M. No. 09-6-8-SC) Management Act;
Effectivity Date: 29 Apr. 2010 20. R.A. No. 9072, National Caves and Cave
Resource Management Act;
21. R.A. No. 9147, Wildlife Conservation and
Protection Act;
Scope of the Rule on Environmental Cases
22. R.A. No. 9175, Chainsaw Act;
23. R.A. No. 9275, Clean Water Act;
These Rules shall govern the procedure in civil,
24. R.A. No. 9483, Oil Spill Compensation Act of
criminal and special civil actions before the RTCs,
2007; and
MeTCs, MTCCs, MTCs and MCTCs involving
25. Provisions in C.A. No. 141, The Public Land Act;
enforcement or violations of environmental and
R.A. No. 6657, Comprehensive Agrarian
other related laws, rules and regulations such as but
Reform Law of 1988; R.A. No. 7160, Local
not limited to the following:
Government Code of 1991; R.A. No. 7161, Tax
Laws Incorporated in the Revised Forestry
1. Act No. 3572, Prohibition Against Cutting of
Code and Other Environmental Laws
Tindalo, Akli, and Molave Trees;
(Amending the NIRC); R.A. No. 7308, Seed
2. P.D. No. 705, Revised Forestry Code;
Industry Development Act of 1992; R.A. No.
3. P.D. No. 856, Sanitation Code;
7900, High-Value Crops Development Act; R.A.
4. P.D. No. 979, Marine Pollution Decree;
No. 8048, Coconut Preservation Act; R.A. No.
5. P.D. No. 1067, Water Code;
8435, Agriculture and Fisheries
6. P.D. No. 1151, Philippine Environmental Policy
Modernization Act of 1997; R.A. No. 9522, The
of 1977;
Philippine Archipelagic Baselines Law; R.A.
7. P.D. No. 1433, Plant Quarantine Law of 1978;
No. 9593, Renewable Energy Act of 2008; R.A.
8. P.D. No. 1586, Establishing an Environmental
No. 9637, Philippine Biofuels Act; and other
Impact Statement System Including Other
existing laws that relate to the conservation,
Environmental Management Related Measures
development, preservation, protection and
and for Other Purposes;
utilization of the environment and natural
9. R.A. No. 3571, Prohibition Against the Cutting,
resources. (Sec. 2, Rule 1, A.M. No. 09-6-8-SC)
Destroying or Injuring of Planted or Growing
Trees, Flowering Plants and Shrubs or Plants of
NOTE: The rules remain consistent with prevailing
Scenic Value along Public Roads, in Plazas,
jurisprudence regarding the doctrine of exhaustion
Parks, School Premises or in any Other Public
of administrative remedies and primary
Ground;
jurisdiction.

These Rules apply to environmental cases arising rules on SLAPP as the petition has no relation at all
from laws that relate to the conservation, to “the enforcement of environmental laws,
development, preservation, protection and protection of the environment or assertion of
utilization of the environment and natural environmental rights.” R.A. No. 9262, which
resources. These may include environmental laws involves cases of violence against women and their
and those laws that may contain provisions that children, is not among those laws included under
relate to the environment but are not the scope of SLAPP. (Mercado v. Lopena, G.R. No.
environmental laws per se (e.g. C.A. No. 141, “The 230170, 06 June 2018, J. Caguioa)
Public Land Act”; R.A. No. 7160, “The Local
Government Code of 1990”, etc.). While this section Prohibition against Temporary Restraining
includes a list of such applicable laws, it is not meant Order (TRO) and Preliminary Injunction
to be exhaustive. (AM No. 09-6-8-SC, Annotation to
the Rules of Procedure for Environmental Cases, p. Only the SC can issue a TRO or writ of preliminary
100) injunction against lawful actions of government
agencies that enforce environmental laws or
Strategic Lawsuit Against Public Participation prevent violations thereof. (Sec. 10, Rule 2, A.M. No.
(SLAPP) 09-6-8-SC)
A legal action filed to harass, vex, exert undue NOTE: The judge shall report any action taken on a
pressure or stifle any legal recourse that any person, TEPO, EPO, TRO or a preliminary injunction,
institution or the government has taken or may take including its modification and dissolution within 10
in the enforcement of environmental laws, days from the action taken to the SC, through the
protection of the environment or assertion of Office of the Court Administrator. (Sec. 11, Rule 2,
environmental rights shall be treated as a SLAPP A.M. No. 09-6-8-SC)
and shall be governed by these Rules. (Sec. 1, Rule 6,
A.M. No. 09-6-8-SC) Q: What is the difference between a TEPO and
the prohibition against issuance of TRO?
Q: Go filed a Petition for Habeas Corpus with
Custody of his children against Mercado. Go, A: A TEPO is premised on the violation of an
with his parents, also filed 10 criminal cases environmental law or a threatened damage or
against Mercado for libel and child abuse, injury to the environment by any person, even the
among others. Meanwhile, Mercado filed a government and its agencies while the prohibition
Petition for Certiorari and Prohibition arguing against the issuance of a TRO or preliminary
that the cases filed by private respondents injunction is premised on the presumption of
against them are forms of SLAPP intended to regularity on the government and its agencies in
harass, intimidate and silence them. Mercado enforcing environmental laws and protecting the
prayed that the Court declare the subject cases environment. (Annotation to the Rules of Procedure
as SLAPP and for the Court to issue a TRO/Writ for Environmental Cases, pp. 116-117)
of Preliminary Injunction directing public
respondents to desist from conducting further 1. TEMPORARY ENVIRONMENTAL
hearings on the subject cases and for the PROTECTION ORDER (TEPO)
immediate dismissal of the same. Is Mercado
correct? Environmental Protection Order
A: NO. Under the Rules of Procedure for It is an order issued by the court directing or
Environmental Cases, the allegation of SLAPP is set enjoining any person or government agency to
up as a defense in cases claimed to have been filed perform or desist from performing an act in order to
merely as harassment suit against environmental protect, preserve or rehabilitate the environment.
actions. The Court finds no occasion to apply the (Sec. 4(d), Rule 1, A.M. No. 09-6-8-SC)

2022 GOLDEN NOTES
Remedial Law
Issuance of a Temporary Environmental to a permanent EPO or issue a writ of continuing

Protection Order (TEPO) mandamus directing the performance of acts which
shall be effective until the judgment is fully satisfied.
If it appears from the verified complaint with a (Sec. 3, Rule 5, A.M. No. 09-6-8-SC).
prayer for the issuance of a TEPO that the matter is
of extreme urgency and the applicant will suffer NOTE: The court may, by itself or through the
grave injustice and irreparable injury, the executive appropriate government agency, monitor the
judge of the multiple-sala court before raffle or the execution of the judgment and require the party
presiding judge of a single-sala court as the case concerned to submit written reports on a quarterly
maybe, may issue ex parte a TEPO effective for only basis or sooner as may be necessary, detailing the
72 hours from date of the receipt of the TEPO by the progress of the execution and satisfaction of the
party or person enjoined. (Sec. 8, Rule 2, AM No. 09- judgment. The other party may, at its option, submit
6-8-SC) its comments or observations on the execution of
the judgment. (Ibid.)
NOTE: Within said period, the court where the case
is assigned, shall conduct a summary hearing to Issuance of TEPO in a Petition for a Writ of
determine whether the TEPO may be extended until Continuing Mandamus
the termination of the case. The court where the
case is assigned shall periodically monitor the The court in which the petition for a writ of
existence of acts that are the subject matter of the continuing mandamus is filed may:
TEPO even if issued by the executive judge and may
lift the same at any time as circumstances may 1. Issue such orders to expedite the proceedings;
warrant. (Ibid.) and
2. Grant a TEPO for the preservation of the rights
Exemption from Posting of Bond of the parties pending such proceedings. (Sec. 5,
Rule 8, A.M. No. 09-6-8-SC)
The applicant shall be exempted from the posting of
a bond for the issuance of a TEPO. (Ibid.) NOTE: A writ of continuing mandamus is issued by
a court in an environmental case directing any
Dissolution of TEPO agency or instrumentality of the government or
officer thereof to perform an act or series of acts
The TEPO may be dissolved if it appears after decreed by final judgment which shall remain
hearing that its issuance or continuance would effective until judgment is fully satisfied. (Sec. 4 (c),
cause irreparable damage to the party or person Rule 1, A.M. No. 09-6-8-SC)
enjoined while the applicant may be fully
compensated for such damages as he may suffer and 2. WRIT OF CONTINUING MANDAMUS
subject to the posting of a sufficient bond by the
party or person enjoined. (Ibid.) It is a writ issued by a court in an environmental
case directing any agency or instrumentality of the
NOTE: The grounds for motion to dissolve a TEPO government or officer thereof to perform an act or
shall be supported by affidavits of the party or series of acts decreed by final judgment which shall
person enjoined which the applicant may oppose, remain effective until judgment is fully satisfied.
also by affidavits. (Sec. 9, Rule 2, AM No. 09-6-8-SC) (Sec. 4 (c), Rule 1, A.M. No. 09-6-8-SC)
Q: When may the court convert a TEPO to a NOTE: The writ of continuing mandamus was first
permanent EPO? When may the court issue a introduced in Metropolitan Manila Development
writ of continuing mandamus? Authority (MMDA) v. Concerned Residents of Manila
Bay (G.R. Nos. 171947-48, 18 Dec. 2008), as a special
A: In the judgment, the court may convert the TEPO civil action that may be availed of to compel the

performance of an act specially enjoined by law. The that said government agencies be ordered to
petition should mainly involve an environmental clean up Laguna de Bay and restore its water
and other related law, rule or regulation or a right quality to Class C waters as prescribed by
therein. A writ of continuing mandamus is, in Presidential Decree No. 1152, otherwise known
essence, a command of continuing compliance with as the Philippine Environment Code. Defendants
a final judgment as it “permits the court to retain raise the defense that the cleanup of the lake is
jurisdiction after judgment in order to ensure the not a ministerial function and they cannot be
successful implementation of the reliefs mandated compelled by mandamus to perform the same.
under the court’s decision.” (Dolot v. Paje, G.R. No.
199199, 27 Aug. 2013) The RTC of Laguna rendered a decision
declaring that it is the duty of the agencies to
When a Writ of Continuing Mandamus may be clean up Laguna de Bay and issued a permanent
Availed of writ of mandamus ordering said agencies to
perform their duties prescribed by law relating
A person may file a verified petition for a writ of to the cleanup of Laguna de Bay. Is the RTC
continuing mandamus when any of the following correct in issuing the writ of mandamus?
instances are present: Explain. (2016 BAR)
1. When the respondent either: A: YES. In MMDA v. Concerned Residents of Manila

a. Unlawfully neglects to perform a duty Bay, (G.R. No. 171947-48, 18 Dec. 2008), the SC held
specifically enjoined by law, arising from that the cleaning or rehabilitation of Manila Bay can
an office, trust or station, in relation to be compelled by mandamus. The ruling
the enforcement or violation of an in MMDA may be applied by analogy to the clean-up
environmental law, rule or regulation or of the Laguna de Bay.
a right; or
b. Unlawfully excludes another from the use While the term issued by the RTC of Laguna is
or enjoyment of such right; and a permanent writ of mandamus, this should be
considered only as a semantic error and that what
2. There is no other plain, speedy and adequate the RTC really intended to issue is a writ
remedy in the ordinary course of law. (Sec. 1, of continuing mandamus. There is no such thing as
Rule 8, A.M. No. 09-6-8-SC) a permanent writ of mandamus since the writ shall
cease to be effective once the judgment is fully
NOTE: The verified petition should also contain a satisfied.
sworn certification of non-forum shopping. (Ibid.)
Q: To address the clamor for a more tangible
Q: Hannibal, Donna, Florence and Joel, response to climate change, Former President
concerned residents of Laguna de Bay, filed a Gloria Macapagal-Arroyo issued A.O. No. 171
complaint for mandamus against the Laguna which created Presidential Task Force on
Lake Development Authority, the Department of Climate Change (PTFCC). This body was
Environment and Natural Resources, the reorganized through E.O. No. 774 and expressed
Department of Public Work and Highways, what is now referred to by the petitioners as the
Department of Interior and Local Government, “Road Sharing Principle” which provides that
Department of Agriculture, Department of “those who have less wheels must have more in
Budget, and Philippine National Police before road. For this purpose, the system shall favor
the RTC of Laguna alleging that the continued non-motorized locomotion and collective
neglect of defendants in performing their duties transportation system (walking, bicycling, and
has resulted in serious deterioration of the the manpowered mini-train). Later, Congress
water quality of the lake and the degradation of passed the Climate Change Act. It created the
the marine life in the lake. The plaintiffs prayed Climate Change Commission which absorbed the

2022 GOLDEN NOTES
Remedial Law
functions of the PTFCC and became the lead that the law specifically enjoins as a duty - there
policy-making body of the government which being nothing in the executive issuances relied upon
shall be tasked to coordinate, monitor and by the petitioners that specifically enjoins the
evaluate the programs and action plans of the bifurcation of roads to implement the Road Sharing
government relating to climate change. Principle. Clearly, the determination of the means to
be taken by the executive in implementing or
Herein petitioners wrote respondents actualizing any stated legislative or executive policy
regarding their pleas for implementation of the relating to the environment requires the use of
Road Sharing Principle, demanding the reform discretion. (Segovia v. Climate Change Commission,
of the road and transportation system in the G.R. No. 211010, 07 March 2017, J. Caguioa)
whole country within 30 days from receipt of the
said letter – foremost, through bifurcation of Where to File the Petition
roads and the reduction of official and
government fuel consumption by 50%. Claiming 1. RTC which has territorial jurisdiction over the
to have not received a response, they filed this unlawful act or omission;
petition. Should a Writ of Kalikasan and/or 2. CA; or
Continuing Mandamus issue in petitioners’ 3. SC (Sec. 2, Rule 8, A.M. No. 09-6-8-SC)
favor?
Contents of a Verified Petition
A: NO. Petitioners failed to establish the requisites
for the issuance of the writs prayed for. A party 1. Allegation of facts;
claiming the privilege for the issuance of a writ of 2. Specific allegation that the petition concerns an
kalikasan has to show that a law, rule or regulation environmental law, rule or regulation;
was violated or would be violated. In this case, apart 3. Prayer that judgment be rendered commanding
from repeated invocation of the constitutional right the respondent to do an act or series of acts
to health and to a balanced and healthful ecology until the judgment is fully satisfied;
and bare allegations that their right was violated, 4. Prayer for payment of damages sustained by
the petitioners failed to show that public the plaintiff due to malicious neglect to perform
respondents are guilty of any unlawful act or legal duties; and
omission that constitutes a violation of the 5. Sworn certification of non-forum shopping (Sec.
petitioners' right to a balanced and healthful 1, Rule 8, A.M. No. 09-6-8-SC)
ecology.
Payment of Docket Fees NOT Required
Similarly, the writ of continuing mandamus cannot
issue. First, the petitioners failed to prove direct or The petitioner is exempt from payment of docket
personal injury arising from acts attributable to the fees. (Sec. 3, Rule 8, A.M. No. 09-6-8-SC)
respondents to be entitled to the writ. Second, the
Road Sharing Principle is precisely as it is Issuance of the Writ of Continuing Mandamus
denominated – a principle. Mandamus lies to compel
the performance of duties that are purely If the court finds the petition to be sufficient in form
ministerial in nature, not those that are and substance, it shall issue the writ and require the
discretionary, and the official can only be directed respondent to comment on the petition within 10
by mandamus to act but not to act one way or the days from receipt of a copy thereof. (Sec. 4, Rule 8,
other. The duty being enjoined in mandamus must A.M. No. 09-6-78-SC)
be one according to the terms provided in the law
itself. NOTE: The order to comment shall be served on the
respondents in such manner as the court may direct,
In this case, there is no showing of unlawful neglect together with a copy of the petition and any annexes
on the part of the respondents to perform any act thereto. (Sec. 4, Rule 8, A.M. No. 09-6-8-SC)

Expediting Proceedings environmental court, as the RD-DENR-EMB

negligently issued the ECC to WPRI.
The court in which the petition is filed may:
On scrutiny of the petition, the court determined
1. Issue such orders to expedite the proceedings; that the area where the alleged actionable
and neglect or omission subject of the petition took
2. Grant a TEPO for the preservation of the rights place in the City of Z of Province II, and therefore
of the parties pending such proceedings. (Sec. 5, cognizable by the RTC of Province II. Thus, the
Rule 8, A.M. No. 09-6-8-SC) court dismissed outright the petition for lack of
jurisdiction.
Nature of the Hearing
a. Was the court correct in motu proprio
It is summary in nature. The court, after the dismissing the petition? Assuming that the
comment is filed or the time for the filing thereof has court did not dismiss the petition, the RD-
expired, shall require the parties to submit DENR-EMB in his Comment moved to
memoranda. (Sec. 6, Rule 8, A.M. No. 09-6-8-SC) dismiss the petition on the ground that
petitioners failed to appeal the issuance of
Resolution of the Petition the ECC and to exhaust administrative
remedies provided in the DENR Rules and
The petition shall be resolved without delay within Regulations.
60 days from the date of the submission of the
petition for resolution. (Sec. 6, Rule 8, A.M. No. 09-6- b. Should the court dismiss the petition?
8-SC)
A:
Q: A law was passed declaring Mt. Karbungko as a. NO. The court was not correct in motu proprio
a protected area since it was a major watershed. dismissing the petition for lack of
The protected area covered a portion located in jurisdiction. In a case involving similar facts,
Municipality of the Province I and a portion the Supreme Court held that the requirement
located in the City of Z of Province II. Maingat is that the petition be filed in the area where the
the leader of Samahan ng Tagapag-ingat ng actionable neglect or omission took place
Karbungko (STK), a people's organization. He relates to venue and not to subject-matter
learned that a portion of the mountain located in jurisdiction. Since what is involved is improper
the City of Z of Province II was extremely venue and not subject-matter jurisdiction, it
damaged when it was bulldozed and leveled to was wrong for the court to dismiss outright the
the ground, and several trees and plants were petition since venue may be waived. (Dolot v.
cut down and burned by workers of World Paje, G.R. No. 199199, 27 Aug. 2013)
Pleasure Resorts, Inc. (WPRI) for the
construction of a hotel and golf course. b. NO. The court should not dismiss the petition.
The Supreme Court has held that in
Upon inquiry with the project site engineer if environmental cases, the defense of failure to
they had a permit for the project, Maingat was exhaust administrative remedies by appealing
shown a copy of the Environmental Compliance the ECC issuance would apply only if the defect
Certificate (ECC) issued by the DENR-EMB, in the issuance of the ECC does not have any
Regional Director (RD-DENR-EMB). causal relation to the environmental
Immediately, Maingat and STK filed a petition damage. Here the issuance of the ECC has a
for the issuance of a writ of continuing direct causal relation to the environmental
mandamus against RD-DENR-EMB and WPRI damage since it permitted the bulldozing of a
with the RTC of Province I, a designated portion of the mountain and the cutting down

2022 GOLDEN NOTES
Remedial Law
and burning of several trees and plants. (Paje v.

Casiño, G.R. 207257, 03 Feb. 2015)
Procedure for a Writ of Continuing Mandamus
Petition for Writ of Continuing

Mandamus
I Sufficient in form and substance?

I
! l
Court issues order:
Court denies the
a. Issuing the Writ
petition
b. Requiring the respondent to
file a comment
Within 1O days from receipt of

a copy of the petition
Respondent files a comment. Expiration of the period to file a

comment.
Summary Hearing ----1 Additional memoranda I

Submit petition for decision
Within 60 days from submission for decision
! l
Grant privilege of the Writ of Deny privilege of the Writ of
Continuing Mandamus Continuing Mandamus
Court evaluates compliance

Partial return of the Writ of
Continuing Mandamus
Petitioner may submit comments and
observations on compliance with the Writ
Final return of the Writ of
Continuing Mandamus ------~• Enter satisfaction of judgement in
court docket

Judgment prejudice the life, connection with the

health, or property of enforcement or
If granted: inhabitants in two or violation of an
1. The court shall require the respondent to more cities or environmental law rule
perform an act or series of acts until judgment provinces. (Sec. 1, or regulation, or a right
is fully satisfied and to grant such other reliefs Rule 7) therein.
as may be warranted resulting from the
wrongful or illegal acts of the respondent; The unlawful exclusion
of another from the use
2. The court shall require the respondent to or enjoyment of such
submit periodic reports detailing the progress right and both instances,
and execution of the judgment; there is no other plain,
speedy and adequate
3. The court may by itself or through a remedy in the ordinary
commissioner or appropriate government course of law. (Sec. 1,
agency, evaluate and monitor compliance (Sec. Rule 8)
7, Rule 8, A.M. No. 09-6-8-SC); and Who may File
One who is One who is personally
4. Periodic reports submitted by respondent personally aggrieved. aggrieved by the
detailing compliance with the judgment shall (ibid.) unlawful act or
be contained in partial returns of the writ. (Sec. omission. (ibid.)
8, Rule 8, A.M. No. 09-6-8-SC)
Respondent
Public or private
NOTE: The petitioner may submit its comments or Government and its
entity or individual.
observations on the execution of the judgment. (Sec. officers. (ibid.)
(ibid.)
7, Rule 8, A.M. No. 09-6-78-SC)
Exemption from Docket fees
Final Return of the Writ Exempted. (Sec. 4, Exempted. (Sec. 3, Rule
Rule 7) 8)
Upon full satisfaction of judgment, a final return of Venue
the writ shall be made by the respondent. (Sec. 8, SC, CA and RTC that has
Rule 8, A.M. No. 09-6-78-SC) jurisdiction over the
SC and CA. (Sec. 3, territory where the
NOTE: If the court finds that judgment has been Rule 7) actionable neglect or
fully implemented, the satisfaction of judgment omission occurred. (Sec.
shall be entered in the court docket. (Ibid.) 2, Rule 8)
Discovery Measures
Writ of Kalikasan vs. Writ of Continuing Ocular inspection
Mandamus (2019 BAR) order.
None.
WRIT OF WRIT OF CONTINUING Production order.
KALIKASAN MANDAMUS (Sec. 12, Rule 7)
Subject Matter Damages for Personal Injury
An unlawful act or Unlawful neglect in the None; the party must Allow damages for
omission of a public performance of an act institute a separate malicious neglect of the
official or employee, which the law action for the performance of the legal
or private individual specifically enjoins as a recovery of damages. duty of the respondent.
or, entity, of such duty resulting from an (Sec. 15, Rule 7) (Sec. 1, Rule 8)
magnitude as to office, trust or station in

2022 GOLDEN NOTES
Remedial Law
3. WRIT OF KALIKASAN Contents of a Verified Petition

(Rule 7, A.M. No. 09-6-8-SC)
1. Personal circumstances of the petitioner;
It is an extraordinary remedy which may be issued 2. Name and personal circumstances of the
depending on the magnitude of environmental respondent or if the name and personal
damage. The environmental damage must be of circumstances are unknown and uncertain, the
such magnitude as to prejudice the life, health or respondent may be described by an assumed
property of inhabitants in two or more cities or appellation;
provinces. (Sec. 1, Rule 7, A.M. No. 09-6-8-SC) 3. The environment law, rule or regulation
violated or threatened to be violated;
Court which has Jurisdiction 4. The act or omission complained of;
5. The environmental damage of such magnitude
The verified petition should be filed with the SC or as to prejudice the life, health or property of
with the CA. (Sec. 3, Rule 7, A.M. No. 09-6-8-SC) inhabitants in two or more cities or provinces;
6. All relevant and material evidence consisting of
Magnitude of Environmental Damage affidavit of witnesses, documentary evidence,
scientific or other expert studies, and if
It must involve environmental damage of such possible, object evidence;
magnitude as to prejudice the life, health or 7. Should be accompanied by certification against
property of inhabitants in two or more cities or forum shopping; and
provinces. (Sec. 1, Rule 7, A.M. No. 09-6-8-SC) 8. The reliefs prayed for which may include a
prayer for the issuance of a TEPO (Sec. 2, Rule 7,
Persons who may File a Petition for a Writ of A.M. No. 09-6-8-SC).
Kalikasan
NOTE: A verified petition is jurisdictional.
1. Natural or juridical person;
2. Entity authorized by law; or Exemption from Payment of Docket Fees
3. People’s organization, non-governmental
organization, or any public interest group The petitioner is exempt from payment of docket
accredited by or registered with any fees. (Sec. 4, Rule 7, A.M. No. 09-6-8-SC)
government agency. (Ibid.)
The exemption encourages public participation of
NOTE: The petition must be on behalf of persons availing the remedy. (Annotation to the Rules of
whose constitutional right to a balanced and Procedure for Environmental Cases)
healthful ecology is violated or threatened with
violation by an unlawful act or omission of a public Issuance of the Writ of Kalikasan
official or employee, or private individual or entity,
involving environmental damage of such magnitude Within 3 days from the date of filing of the petition,
as to prejudice the life, health or property of if the petition is sufficient in form and substance, the
inhabitants in two or more cities or provinces. court shall give an order:
(Ibid.)
a. Issuing the writ; and
Persons against whom a Petition for a Writ of b. Requiring the respondent to file a verified
Kalikasan is Filed return as provided in Sec. 8 of Rule 7. (Sec. 5,
Rule 7, A.M. No. 09-6-8-SC)
1. The government, as represented by a public
official or employee; or
2. A private individual or entity (Ibid.)

Return 3. Directing respondent to monitor strict

compliance with the decision and orders of the
Within a non-extendible period of 10 days after court;
service of the writ, the respondent shall file a
verified return which shall contain all defenses of 4. Directing respondent to make periodic reports
the respondent. (Sec. 8, Rule 7, A.M. No. 09-6-8-SC) on the execution of the final judgment; and
NOTE: All defenses not raised in the return shall be 5. Such other reliefs which relate to the right of the
deemed waived. (ibid.) people to a balanced and healthful ecology or to
the protection, preservation, rehabilitation or
Failure to File a Verified Return restoration of the environment, except the
award of damages to individual petitioners.
Failure to file a return shall make the court to (Sec. 15, Rule 7, A.M. No. 09-6-8-SC)
proceed to hear the petition ex parte. (Sec. 10, Rule
7, A.M. No. 09-6-8-SC) Judgment
Contempt Within 60 days from the time the petition is

submitted for decision, the court shall render
After hearing, the court may punish the respondent judgment granting or denying the privilege of the
who refuses or unduly delays the filing of a return writ of kalikasan.
or who makes a false return or any person who
disobeys or resists a lawful process or order of the Appeal
court for indirect contempt under Rule 71 of the
Rules of Court. (Sec. 13, Rule 7, A.M. No. 09-6-8-SC) Within 15 days from the date of notice of the
adverse judgment or denial of motion for
Preliminary Conference reconsideration, any party may appeal to the SC
under Rule 45. This is an exception to Rule 45 since
After receipt of the return, the court may call for a it may raise question of facts on appeal under Rule
preliminary conference; the hearing including the 45. (Sec. 16, Rule 7, A.M. No. 09-6-8-SC)
preliminary conference shall not extend beyond 60
days and shall be given the same priority as Institution of Separate Actions
petitions for the writs of habeas corpus, amparo and
habeas data. (Sec. 11, Rule 7, A.M. No. 09-6-8-SC) The filing of the petition for the writ of kalikasan
shall not preclude the filing of separate civil,
NOTE: After hearing, the court shall issue an order criminal or administrative actions. (Sec. 17, Rule 7,
submitting the case for decision and may require A.M. No. 09-6-8-SC)
the filing of memoranda. (Sec. 14, Rule 7, A.M. No. 09-
6-8-SC) Q: The officers of "Ang Kapaligiran ay Alagaan,
Inc." engaged your services to file an action
Reliefs that May be Granted under the Writ against ABC Mining Corporation which is
engaged in mining operations in Sta. Cruz,
1. Directing respondent to permanently cease and Marinduque. ABC used highly toxic chemicals in
desist from committing acts or neglecting the extracting gold. ABC's toxic mine tailings were
performance of a duty in violation of accidentally released from its storage dams and
environmental laws resulting in environmental were discharged into the rivers of said town.
destruction and damage; The mine tailings found their way to Calancan
Bay and allegedly to the waters of nearby
2. Directing respondent to protect, preserve, Romblon and Quezon. The damage to the crops
rehabilitate or restore the environment; and loss of earnings were estimated at P1

2022 GOLDEN NOTES
Remedial Law
Billion. Damage to the environment is estimated for writ of kalikasan is exempt from the payment of
at P1 Billion. As lawyer for the organization, you docket fees unlike in a civil complaint for
are requested to explain the advantages derived damages. Thirdly in a petition for writ of kalikasan,
from a petition for writ of kalikasan before the the petitioners may avail of the precautionary
Supreme Court over a complaint for damages principle in environmental cases which provides
before the RTC of Marinduque or vice-versa. that when human activities may lead to threats of
What action will you recommend? Explain. serious and irreversible damage to the environment
(2016 Bar) that is scientifically plausible but uncertain, action
shall be taken to avoid or diminish that threat.
A: I will recommend the filing of a Petition for the
issuance of a Writ of Kalikasan. The following are In effect, the precautionary principle shifts the
the advantages of such a petition over a civil burden of evidence of harm away from those likely
complaint for damages. Firstly, there will be no to suffer harm and onto those desiring to change the
issue regarding the legal standing or legal capacity status quo. In a civil complaint for damages, the
of the Ang Kapaligiran ay Alagaan Inc.” (AKAI) to file burden of proof to show damages is on the
the action. Sec. 1, Rule 7 of the Rules of Procedure plaintiff. Finally, the judgment is a writ of kalikasan
for Environmental Cases (RPEC) provides that the case is immediately executory unlike in a civil
writ of Kalikasan is available to a people’s complaint for damages. The advantage of the civil
organization, non-governmental organization, or complaint for damages is that the court may award
any public interest group. On the other hand, the damages to the Petitioners for the injury suffered
legal capacity of AKAI to file an action for damages which is not the case in a petition for writ of
in behalf of its members may be questioned since a kalikasan. At any rate a person who avails of the
corporation has a personality separate from that of Writ of Kalikasan may also file a separate suit for the
its members. Secondly, the petitioner in a petition recovery of damages.

Procedure for a Writ of Kalikasan
Petition for a Writ of Kalikasan
Withinthree(3) daysfromfilineof petition

OUrtlS~Or
Court denies the petition
a. Issuingthe writ
b. Requirire the respondent to file a verified
return
With non-extendible periO<Iofte~lO)

days from service
of thewrit.
Respondent filesa verified return
return
~
Prelimina,vconference
/'--...
< Hearire
Within non-ectendtble
periodofthlrt'((30) days
from submissbn tor
Petition is submitted for decision decision. Additional memoranda
Within sb<ty(60)daystro submisson tor de<ision
I
Deny privileae ot thewrit otkalikasa'l
Grant privileaeofthewrit of kalkasan
Withinfift~lS)daysfrom notice of adverse

~---------"-----'·-=u-=d._m=e"'nt"-o'-'r~d'"'en",ial of motion for reconsideration
Appeal to theSupremeCourtvia Rule45 of the Rulesor
Court

2022 GOLDEN NOTES
Criminal Procedure
3. That the accused is given the opportunity to be

VI. CRIMINAL PROCEDURE heard; and
4. That judgment is rendered only upon lawful
hearing. (Alonte v. Savellano, Jr., G.R. No. 131652,
09 Mar. 1998)
A. GENERAL MATTERS
1. CRIMINAL JURISDICTION; CONCEPT AND
REQUISITES OF EXERCISE
Criminal Procedure 1. Jurisdiction over the subject matter;

2. Jurisdiction over the territory; and
Criminal Procedure treats of the series of processes 3. Jurisdiction over the person of the accused.
by which the criminal laws are enforced and by
which the State prosecutes persons who violate the JURISDICTION OVER THE SUBJECT MATTER
penal laws. It regulates the steps by which one who
committed a crime is to be punished. (People v. Jurisdiction over the subject matter refers to the
Lacson, G.R. No. 149453, 01 Apr. 2003) authority of the court to hear and determine a
particular criminal case. It is, in simple terms,
It is a generic term to describe the network of laws jurisdiction over the offense charged. (Riano,
and rules which governs the procedural 2019)
administration of justice. (Black’s Law Dictionary,
Fifth Edition, 1979) Jurisdiction over the subject matter is the power to
hear and determine cases of the general class to
Criminal Law vs. Criminal Procedure which the proceedings in question belong. (Bernabe
v. Vergara, G.R. No. L-48652, 16 Sep. 1942)
CRIMINAL
CRIMINAL LAW
PROCEDURE It is the power to deal with the general subject
That branch or division involved in the action and means not simply
Lays down the
of law which defines jurisdiction over the particular case then occupying
procedure by which
crimes, treats of their the attention of the court but jurisdiction of the class
an offender is made to
nature, and provides for of cases to which the particular case belongs.
answer for violation of
their punishment.
the criminal laws.
(Reyes, 2008, citing 12 How Jurisdiction over the Subject Matter is
(Riano, 2019)
Cyc. 129) Conferred
Due Process in Criminal Proceeding Jurisdiction over the subject matter is conferred by
law (Durisol Philippines, Inc. v. CA, G.R. No. 121106,
Due process in criminal proceeding is mandatory 20 Feb. 2000). It cannot be fixed by the will of the
and indispensable. It cannot be met without “a law parties nor can it be acquired or diminished by any
which hears before it condemns as well as proceeds act of the parties. It cannot be conferred upon by the
upon inquiry and renders judgment only after trial.” accused, express waiver or otherwise, since the
jurisdiction is conferred by the sovereign authority
Requirements of Due Process in a Criminal which organized the court and is given only by law
Proceeding in the manner and form prescribed by law
(Fukuzume v. People, G.R. No. 143647, 11 Nov. 2005).
1. Court or tribunal is properly clothed with It is not conferred by a mere administrative policy
judicial power to hear and determine the of any trial court. (Cudia v. CA, G.R. No. 110315, 16
matter before it; Jan. 1998)
2. Jurisdiction is lawfully acquired over the person
of the accused;

e

Remedial Law
How Jurisdiction over the Subject Matter is accomplished either by his pleading to the merits
Determined (such as by filing a motion to quash or other
pleadings requiring the exercise of the court’s
While jurisdiction of courts is conferred by law, jurisdiction thereover, appearing for arraignment,
jurisdiction over the criminal case is determined by entering trial) or by filing bail. (David v. Agbay, G.R.
the allegations in the complaint or information in No. 199113, 18 Mar. 2015)
relation to the law prevailing at the time of the filing
of the filing of complaint or information (Asistio v. Custody of the Law
People, G.R. No. 200465, 20 Apr. 2015). It is the
averments in the information which characterize Custody of the law is required before the court can
the crime to be prosecuted and the court before act upon the application for bail but is not required
which it must be tried. (Pangilinan v. CA, G.R. No. for the adjudication of other reliefs sought by the
117363, 17 Dec. 1999) defendant where the mere application therefor
constitutes a waiver of the defense of lack of
In determining whether the court has jurisdiction jurisdiction over the person of the accused. (Ibid.)
over an offense, the penalty which may be imposed
upon the accused and not the actual penalty Custody of the Law vs. Jurisdiction over the
imposed after the trial shall be considered. (People Person of the Accused
v. Savellano, G.R. No. L-39951, 09 Sep. 1982)
Custody of the law is accomplished either by arrest
JURISDICTION OVER THE TERRITORY or voluntary surrender, while jurisdiction over the
person of the accused is acquired upon his arrest or
Venue in criminal cases is an essential element of voluntary appearance. One can be under the
jurisdiction. Hence, for jurisdiction to be acquired custody of the law but not yet subject to the
by a court in a criminal case, the offense should have jurisdiction of the court over his person, such as
been committed or any one of its essential when a person arrested by virtue of a warrant files
ingredients should have taken place within the a motion before arraignment to quash the warrant.
territorial jurisdiction of the court. It is in that court
where the criminal action shall be instituted (Sec. On the other hand, one can be subject to the
15(a), Rule 110, Rules of Court, as amended; Foz, Jr. v. jurisdiction of the court over his person, and yet not
People, G.R. No. 167764, 09 Oct. 2009; Brodeth v. be in the custody of the law, such as when an
People, G.R. No. 197849, 29 Nov. 2017). accused escapes custody after his trial has
commenced. Being in the custody of the law
Stated otherwise, in criminal cases, venue is signifies restraint on the person, who is thereby
jurisdictional. (Pilipinas Shell Petroleum Corporation deprived of his own will and liberty, binding him to
v. Romars International Gases Corporation, G.R. No. become obedient to the will of the law. Custody of
189669, 16 Feb. 2015) the law is literally custody over the body of the
accused. It includes, but is not limited to, detention.
JURISDICTION OVER THE (Ibid.)
PERSON OF THE ACCUSED
Jurisdiction over the person of the accused is

acquired upon his arrest or apprehension, with or
without a warrant, or his voluntary appearance or
submission to the jurisdiction of the court.
(Valdepenas v. People, G.R. No. L-20687, 30 Apr.
1966)
The voluntary appearance of the accused, whereby

the court acquires jurisdiction over his person, is
/'"•,, U N IVE R SIT Y O F SANT O T O M AS 438

;•. _ _/ 2022GOLDENNOTES
Criminal Procedure
JURISDICTION OVER THE SUBJECT MATTER XPNs:

vs. JURISDICTION OVER THE PERSON 1. When the statute expressly so provides; or
OF THE ACCUSED 2. When the statute is clearly intended to apply
to pending actions.
JURISDICTION OVER JURISDICTION OVER
THE SUBJECT THE PERSON OF Dismissal on Jurisdictional Grounds
MATTER THE ACCUSED
The authority of the GR: An objection on the ground that the court lacks
court to hear and jurisdiction over the subject matter may be raised
determine a particular The authority of the or considered motu proprio by the court at any stage
criminal case. This court over the person of the proceeding or appeal.
simply means charged.
jurisdiction over the XPN: A party may be estopped from questioning the
offense charged. jurisdiction of the court by reasons of public policy
Requires that the as when he initially invokes the jurisdiction of the
person be brought into court and later on repudiates that jurisdiction.
its forum by: (Tijam v. Sibonghanoy, G.R. No. L-21450, 15 Apr.
1968)
1. Arrest, with or
without a warrant; CUSTODY OF LAW vs.
or JURISDICTION OVER THE PERSON
2. GR: Voluntary JURISDICTION OVER

CUSTODY OF LAW
Mandates that the submission the THE PERSON
offense is one which jurisdiction of the Required before the
Required for the
the court is, by law, court. court can act upon the
adjudication of reliefs.
authorized to take application for bail.
cognizance of. XPN: Making Accomplished either Acquired upon his
special appearance by arrest or voluntary arrest or voluntary
in court to question surrender. appearance.
the jurisdiction of A person can be under
the court over the the custody of the law A person can be subject
person of the but not yet subject to to the jurisdiction of
accused. (Miranda the jurisdiction of the the court over his
vs. Tuliao, G.R. court over his person, person, and yet not be
No. 158763, 31 Mar. such as when a person in the custody of the
2006) arrested by virtue of a law, such as when an
warrant files a motion accused escapes
Principle of Adherence of Jurisdiction or before arraignment to custody after his trial
Continuing Jurisdiction quash the warrant. has commenced.
(Miranda vs. Tuliao,
GR: Once a court acquires jurisdiction over a supra)
controversy, it shall continue to exercise such
jurisdiction until the final determination of the case
and the same is not affected by the subsequent
legislation vesting jurisdiction over such
proceeding in another tribunal.

e

Remedial Law
JURISDICTION OF CRIMINAL COURTS 5. Special jurisdiction to decide on applications for

bail in the absence of all RTC judges in a
Municipal Trial Court (MTC), Municipal Circuit province or city. (Sec. 35, B.P. No. 129)
Trial Court (MCTC), Municipal Trial Court in
Cities (MTCC) and Metropolitan Trial Court NOTE: Jurisdiction of MTC is qualified by the
(MeTC) phrase “Except in cases falling within the
exclusive jurisdiction of the RTC and of the
Except in cases falling within the exclusive Sandiganbayan”. Hence not all offenses
jurisdiction of the RTC and of the Sandiganbayan: punishable with imprisonment not exceeding 6
years shall be under the jurisdiction of MTC.
1. Exclusive original jurisdiction over all (Riano, 2019)
violations of city or municipal ordinances
committed within their respective territorial Regional Trial Court (RTC)
jurisdiction (Sec. 32(1), B.P. 129, as amended by
R.A. 7691); 1. Exclusive original jurisdiction in all criminal
cases not within the exclusive jurisdiction of
2. Exclusive original jurisdiction over all offenses any court, tribunal or body, except those now
punishable with imprisonment not exceeding 6 falling under the exclusive and concurrent
years irrespective of the amount of fine, and jurisdiction of the Sandiganbayan (Sec. 20, B.P.
regardless of other imposable or accessory No. 129);
penalties (Sec. 32(2), B.P. 129, as amended by
R.A. 7691); 2. Original jurisdiction in the issuance of writs of
certiorari, prohibition, mandamus, quo
3. Exclusive original jurisdiction over offenses warranto, habeas corpus, and injunction,
involving damage to property through criminal enforceable in any part of their respective
negligence (Sec. 32(2), B.P. 129, as amended by regions (Sec. 21(1), B.P. No. 129);
R.A. 7691);
3. Appellate jurisdiction over all cases decided by
4. Summary procedure in certain cases; and the MTC within its territorial jurisdiction (Sec.
22, B.P. No. 129);
NOTE: The MTCs shall have jurisdiction over
the following cases falling within their 4. Special jurisdiction of certain branches to
jurisdiction: handle exclusively criminal cases as may be
determined by the Supreme Court (Sec. 23, B.P.
a. Violations of traffic laws, rules and No. 129); and
regulations:
b. Violations of the rental law; 5. Jurisdiction over criminal cases under specific
c. B.P. 22 cases; laws such as:
d. Violations of municipal and city a. Criminal and civil aspects of written
ordinances; defamation (Art. 360, RPC);
e. All other criminal cases where the penalty b. Designated special courts over cases in
prescribed by law for the offense charged is violation of the Comprehensive
imprisonment not exceeding 6 months, or a Dangerous Drugs Act of 2002 (Sec. 90, R.A.
fine not exceeding P1, 000.00, or both; and No. 9165);
f. Offenses involving damage to property c. Violation of intellectual property rights
through criminal negligence where the (A.M. No. 03-03-03-SC); and
imposable penalty does not exceed P10, d. All cases on money laundering. (Sec. 5, R.A.
000.00. (Sec. 1 [b](b)(4), 1991 Rules on No. 9160)
Summary Procedure)

Criminal Procedure
Sandiganbayan (P.D. 1606, as amended by R.A. i. Members of the judiciary without

7975 and R.A. 8249) prejudice to the provisions of the
Constitution;
1. Violations of R.A. No. 3019, R.A. No. 1379, and ii. Chairmen and members of
Chapter II, Sec. 2, Title VII, Book II of the RPC, Constitutional Commissions, without
where one or more of the accused are officials prejudice to the provisions of the
occupying the following positions in the Constitution; and
government at the time of the commission of iii. All other national and local officials
the offense: classified as Grade “27” and higher
under R.A. 6758.
a. Officials of the executive branch occupying
the positions of regional director and 2. Other offenses or felonies whether simple or
higher, otherwise classified as Grade “27” complexed with other crimes committed by the
and higher of R.A. No. 6758; public officials and employees abovementioned
in relation to their office;
i. Provincial governors, vice-governors,
members of the sanggunian 3. Civil and criminal cases filed pursuant to and in
panlalawigan and provincial connection with E.O. Nos. 1, 2, 14 and 14-A; and
treasurers, assessors, engineers and
other provincial departmental heads; 4. Appellate jurisdiction over final judgments,
ii. City mayors, vice-mayors, members of resolutions or orders of trial courts in cases
the sangguniang panlungsod, city where none of the accused is occupying
treasurer, assessors, engineers and the position corresponding to salary grade “27” or
city department heads; higher. (Sec. 4, P.D. 1606, as amended by R.A.
iii. Officials of the diplomatic service 7975 and as amended further by R.A. 8249)
occupying the position of consul and
higher; Officials and Employees with a Salary Grade of
iv. Philippine army and air force colonels, 27 or Higher
naval captain, and all officers of higher
rank; While the first part of Sec. 4(a) of P.D. No. 1606, as
v. Officers of the Philippine National amended covers only officials with the salary grade
Police while occupying the position of 27 and higher, the second part specifically includes
provincial director and those holding other executive officials whose positions may not be
the rank of senior superintendent or with salary grade 27 and higher but who are by
higher; express provision of law placed under the
vi. City and provincial prosecutors and jurisdiction of the said court. Thus, if the position is
their assistants, and officials and enumerated under Sandiganbayan’s jurisdiction
prosecutors in the Office of the and as long as the offense was committed in relation
Ombudsman and special prosecutor; to their office, regardless of salary grade,
vii. Presidents, directors or trustees, or Sandiganbayan has jurisdiction. (Geduspan v.
managers of government-owned or- People, G.R. No. 158187, 11 Feb. 2005)
controlled corporations, state
universities or educational institutions An Offense is Deemed to be Committed in
or foundations; relation to the Public Office upon showing of Any
of the Following:
b. Members of Congress and officials thereof
classified as Grade “27” and up under R.A. 1. When such office is an element of the crime
No. 6758; charged; or

e

Remedial Law
2. When the offense charged is intimately longer a conspiracy to speak of and,

connected with the charge of the official consequently, any legal ground to hold him for
functions of the accused. trial had been extinguished. Rule on the motion
to terminate filed by Mr. Pork Chop, with brief
Q: The accused public officer, a Senior Labor reasons. (2017 BAR)
Regulation Officer and Chief of the Labor
Regulations Section, conspired and connived A: The motion should be denied. The death of any
with the other accused, Elino Coronel, a Labor public officer with whom respondent can be
Regulation Officer of the same office, took charged for the said violation does not mean that
advantage of their official positions, prepared the allegation of conspiracy between them can no
and falsified an official document, to wit: the CS longer be proved or that their alleged conspiracy is
Personal Data Sheet, by making it appear in said already expunged. The law does not require that
document that accused had taken and passed such person must, in all instances, be indicted
the Career Service. Sandiganbayan convicted together with the public officer. If circumstances
petitioners of Falsification of a Public Document. exist where the public officer may no longer be
Does the Sandiganbayan have jurisdiction over charged in court, as in the present case where the
the case? public officer has already died, the private person
may be indicted alone. Moreover, the only thing
A: NO. In the instant case, there is no showing that extinguished by the death of Engr. Magna Nakaw is
the alleged falsification was committed by the his criminal liability. His death did not extinguish
accused, if at all, as a consequence of, and while they the crime nor did it remove the basis of the charge
were discharging, official functions. The of conspiracy between him and private respondent.
information does not allege that there was an (People v. Go, G.R. No. 168539, 25 Mar. 2014)
intimate connection between the discharge of
official duties and the commission of the offense. Q: The Ombudsman found probable cause to
Besides, falsification of an official document may be charge with plunder the provincial governor,
committed not only by public officers and vice governor, treasurer, budget officer, and
employees but even by private persons only. Public accountant. An Information for plunder was
office is not an essential ingredient of the offense filed with the Sandiganbayan against the
such that the offense cannot exist without the office. provincial officials except for the treasurer who
Clearly, therefore, as the alleged falsification was was granted immunity when he agreed to
not an offense committed in relation to the office of cooperate with the Ombudsman in the
the accused, it did not come under the jurisdiction prosecution of the case. Immediately, the
of the Sandiganbayan. It follows that all its acts in governor filed with the Sandiganbayan a
the instant case are null and void ab initio. petition for certiorari against the Ombudsman
(Bartolome v. People, G.R. No. L-64548, 07 July 1986) claiming there was grave abuse of discretion in
excluding the treasurer from the Information.
Q: Engr. Magna Nakaw, the District Engineer of
the DPWH in the Province of Walang Progreso, a. Was the remedy taken by the governor
and Mr. Pork Chop, a private contractor, were correct?
both charged in the Office of the Ombudsman for
violation of the Anti-Graft and Corrupt Practices b. Will the writ of mandamus lie to compel the
Act (R.A. No. 3019) under a conspiracy theory. Ombudsman to include the treasurer in the
While the charges were undergoing Information?
investigation in the Office of the Ombudsman,
Engr. Magna Nakaw passed away. Mr. Pork Chop c. Can the Special Prosecutor move for the
immediately filed a motion to terminate the discharge of the budget officer to
investigation and to dismiss the charges against corroborate the testimony of the treasurer
him, arguing that because he was charged in in the course of presenting its evidence?
conspiracy with the deceased, there was no (2015 BAR)

Criminal Procedure
A: investigated and prosecuted for the protection of

a. NO. The remedy taken by the governor was not society. (Domingo v. Sandiganbayan, G.R. No.
correct. The SC has held that the proper remedy 109376, 20 Jan. 2000)
from the Ombudsman’s orders or resolutions in
criminal cases is a petition for certiorari under XPNs:
Rule 65 filed with the Supreme Court (Quarto v. 1. To prevent the use of the strong arm of the law
OMB, G.R. No. 169402, 05 Oct. 2011; Cortes v. in an oppressive and vindictive manner (Ibid.);
OMB, G.R. No. 187896-97, 10 June 2013). Here 2. To afford adequate protection to
the petition for certiorari was filed not with the constitutional rights (Ibid.);
Supreme Court but the Sandiganbayan. Hence, 3. For the orderly administration of justice
the remedy taken was not correct. (Hernandez v. Albano, G.R. No. 19272, 25 Jan.
1967);
b. NO. The writ of mandamus will not lie to compel 4. To avoid multiplicity of actions (Ibid.);
the Ombudsman to include the Treasurer in the 5. In proper cases, because the statute relied
information. The Supreme Court has held that upon is unconstitutional, or was held invalid
mandamus will lie only if the exclusion of a (Ibid.);
person from the information was arbitrary. 6. When the acts of the officer are without or in
Here, the exclusion was not arbitrary but based excess of authority (Planas v. Gil, G.R. No. L-
on Sec. 17 of RA 6770 which empowers the 46440, 18 Jan. 1939);
Ombudsman to grant immunity to witnesses. 7. When the court has no jurisdiction over the
(Ibid.) offense (Lopez v. City Judge, G.R. No. L-25795,
29 Oct. 1966);
c. NO. The Special Prosecutor cannot move for the 8. When there is a prejudicial question which is
discharge of the budget officer to corroborate sub judice (before a court or judge for
the testimony of the treasurer. Under Section consideration);
17 of Rule 119 of the Rules of Court, a 9. Where the prosecution is under an invalid law,
requirement for discharge is that there is no ordinance or regulation;
other direct evidence available for the 10. When double jeopardy is clearly apparent;
prosecution of the offense and that there is 11. Where it is a case of persecution rather than
absolute necessity for the testimony of the prosecution;
accused whose discharge is requested. Here 12. Where the charges are manifestly false and
since the budget officer’s testimony is merely motivated by lust for vengeance; and
corroborative, there is no absolute necessity for 13. Where there is clearly no prima facie case
it. Necessity is not there when the testimony against the accused and a motion to quash on
would simply corroborate or otherwise that ground has been denied.
strengthen the prosecution’s evidence (Jimenez
v. People, G.R. No. 209195, 17 Sep. 2014). Hence, Mandamus to Compel Prosecution
the Special Prosecutor cannot move for the
discharge of the budget officer. Settled is the rule that the writ of mandamus is not
available to control discretion neither may it be
2. WHEN INJUNCTION MAY BE ISSUED TO issued to compel the exercise of discretion. Truly, it
RESTRAIN CRIMINAL PROSECUTION is a matter of discretion on the part of the
prosecutor to determine which persons appear
When Injunction may be Issued to Restrain responsible for the commission of a crime.
Criminal Prosecution (1999 BAR) However, the moment he finds one to be so liable it
becomes his inescapable duty to charge him
GR: The long-standing doctrine that writs of therewith and to prosecute him for the same. In
injunction or prohibition will not lie to restrain a such a situation, the rule loses its discretionary
criminal prosecution for the reason that public character and becomes mandatory.
interest requires that criminal acts be immediately

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Remedial Law
Thus, in cases where despite the sufficiency of the Effect of Institution of a Criminal Action
evidence before the prosecutor, he or she refuses to
file the corresponding information against the GR: It interrupts the running of the period of
person responsible, he or she abuses his discretion. prescription of the offense charged. (Sec. 1, Rule 110,
His act is tantamount to a deliberate refusal to ROC, as amended)
perform a duty enjoined by law. As such, mandamus
is a proper remedy when resolution of the XPN: When a different rule is provided for in special
prosecutor is tainted with grave abuse of discretion. laws.
(Metropolitan Bank and Trust Company v. Reynaldo,
G.R. No. 164538, 09 Aug. 2010) NOTE: Under Art. 91 of the Revised Penal Code
(RPC), the prescriptive period shall be interrupted
“by the filing of the complaint or information.” The
B. PROSECUTION OF OFFENSES said article does not distinguish whether the
(RULE 110) complaint is filed for preliminary examination or
investigation only or for an action on the merits.
Thus, the filing of the complaint even with the
fiscal's office suspends the running of the statute of
CRIMINAL ACTIONS, HOW INSTITUTED
limitations. (Reodica v. CA, G.R. No. 125066, 08 July
1998)
Criminal Action
There is No More Distinction between Cases

One by which the State prosecutes a person for an
under the RPC and those Covered by Special
act or omission punishable by law.
Laws
Criminal actions are instituted by:

In cases involving special laws, the Court has held
that the institution of proceedings for preliminary
1. Where preliminary investigation is required
investigation against the accused interrupts the
– filing the complaint with the proper officer for
period of prescription (People v. Pangilinan, G.R. No.
the purpose of conducting the requisite
152662, 13 June 2012; Sanrio Company Limited v.
preliminary investigation (Sec. 1, Rule 110,
Lim, G.R. No. 168662, 19 Feb. 2008; Ingco v.
Rules of Court, as amended); or
Sandiganbayan, G.R. No. 112584, 23 May 1997). As
such, the rule laid down in Zaldivia v. Reyes (G.R. No.
2. For all other offenses – filing the complaint or
102342, 03 July 1992) is no longer controlling in
information directly with the MTC and MCTC, or
special laws.
the complaint with the office of the prosecutor.
(Ibid.)
While it may be observed that the term “judicial
proceedings” in Sec. 2 of Act No. 3326 appears
NOTE: There is no direct filing of an information or
before “investigation and punishment” in the old
complaint with the RTC because its jurisdiction
law, with the subsequent change in set-up whereby
covers offenses which require preliminary
the investigation of the charge for purposes of
investigation.
prosecution has become the exclusive function of
the executive branch, the term “proceedings” should
There is likewise no direct filing with the MeTC
now be understood either executive or judicial in
because in Metro Manila and other chartered cities,
character: executive when it involves the
the complaint shall be filed with the office of the
investigation phase and judicial when it refers to the
prosecutor, unless otherwise provided by their
trial and judgment stage. With this clarification, any
charters. In case of conflict between a city charter
kind of investigative proceeding instituted against
and a provision of the Rules of Court, the former,
the guilty person which may ultimately lead to his
being substantive law, prevails.
prosecution should be sufficient to toll prescription.
(Panaguiton v. DOJ, G.R. No. 167571, 25 Nov. 2008)

Criminal Procedure
The prevailing rule is, therefore, that irrespective of no longer file the complaint. This is considered as
whether the offense charged is punishable by the lack of status. (Pilapil v. Somera, G.R. No. 80116, 30
RPC or by a special penal law, it is the filing of the June 1989)
complaint or information in the office of the public
prosecutor for purposes of preliminary 2. Parties who may file a complaint for
investigation that interrupts the period of seduction, abduction or acts of lasciviousness
prescription. (Riano, 2019 citing Disini v.
Sandiganbayan, G.R. Nos 169823-24, 11 Sep. 2013) a. The offended party;
b. Parents of the offended party;
WHO MAY FILE THEM, CRIMES THAT CANNOT c. Grandparents of the offended party; or
BE PROSECUTED DE OFFICIO d. Guardian of the offended party (Sec. 5, Rule 110,
ROC, as amended)
GR: All criminal actions initiated by complaint or
information are filed by the prosecutor. NOTE: Such crimes cannot be prosecuted if the
offender has been expressly pardoned by any of the
XPNs: Offenses or crimes that cannot be prosecuted abovementioned parties. (Sec. 5, Rule 110, ROC, as
de officio. amended)
These are crimes or offenses which cannot be Filing a Complaint by a Minor for Seduction,
prosecuted except on complaint filed by the Abduction, or Acts of Lasciviousness (2000 BAR)
offended party or, if the offended party is a minor,
by the parents, grandparents or the guardian. These GR: The offended party, even if a minor, has the
crimes are: right to initiate the prosecution of such offenses
independently of the said offended party’s parents,
1. Adultery and concubinage; grandparents or guardian.
2. Seduction, abduction and acts of lasciviousness;
and XPNs: If the minor is:
3. Criminal actions for defamation imputing the 1. Incompetent; or
abovementioned offenses. (Sec. 5, Rule 110, 2. Incapable of doing so. (Sec. 5, Rule 110, ROC, as
ROC, as amended) amended)
NOTE: These crimes are known as private crimes NOTE: If the minor fails to file a complaint, the said
(which mean that these crimes cannot be minor’s parents, grandparents or guardian may file
prosecuted except upon the complaint initiated by the same. The right granted to the latter shall be
the offended party). (Art. 344, RPC) exclusive and successive in the order herein
provided. (Sec. 5, Rule 110, ROC, as amended)
1. Party who may legally file a complaint for
adultery or concubinage Q: Fey, a minor orphan, was subjected to acts of
lasciviousness performed by her uncle Polo. She
Only the offended spouse may file a complaint for informed her grandparents but was told not to
adultery or concubinage. (Sec. 5, Rule 110, ROC, as file charges.
amended)
a. Fey now asks you as counsel how she could
NOTE: The offended spouse cannot institute a make her uncle liable. What would your
criminal action for adultery without including the advice be? Explain.
guilty parties if both are alive; or if the offended
party has consented to the offense or pardoned the b. Suppose the crime committed against Fey by
offenders. (Sec. 5, Rule 110, ROC, as amended) her uncle is rape, witnessed by your mutual
friend Isay. But this time, Fey was prevailed
If the complainant has already been divorced, he can upon by her grandparents not to file

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Remedial Law
charges. Isay asks you if she can initiate the Effect of Pardon on the Criminal Liability
complaint against Polo. Would your answer
be the same? Explain. (2000 BAR) The crimes of seduction, abduction and acts of
lasciviousness cannot be prosecuted if the offender
A: has been expressly pardoned by any of the persons
a. Fey may file the complaint independently of her authorized to file a complaint under Sec. 5 of Rule
grandparents, because she is not incompetent 110 of the Rules of Court.
or incapable of doing so upon grounds other
than her minority. (Sec. 5, Rule 110, ROC, as NOTE: In case where the offended party is a minor,
amended) the pardon to be effective, as to prevent prosecution
of the accused, must be given by both parents and
b. YES. Since rape is now classified as a crime the offended party. (U.S. v. Luna, G.R. No. 892, 11 Sep.
against persons under the Anti-Rape Law of 1902)
1997 or RA 8353, Isay can initiate the complaint
against Polo. Pardon vs. Consent
Instances when the State may Initiate the Action PARDON CONSENT
for Seduction, Abduction or Acts of Refers to past acts. Refers to future acts.
Lasciviousness on behalf of the Offended Party In order to absolve In order to absolve the
the accused from accused from liability, it
1. When the offended party dies or becomes liability, it must be is sufficient even if
incapacitated before a complaint is filed; or extended to both granted only to the
2. The offended party has no known parents, offenders. offending spouse.
grandparents or guardian. (Sec. 5, Rule 110,
ROC, as amended) Parties who Can Give Pardon
NOTE: This is pursuant to the doctrine of parens PARTIES WHO CAN

patriae. CRIMES
GIVE PARDON
Concubinage Only the offended spouse,
Persons who may File a Complaint on Cases of and Adultery not otherwise incapacitated.
Unlawful Acts in R.A. No. 7610 (Special 1. The offended minor, if
Protection of Children against Child Abuse, with sufficient discretion,
Exploitation and Discrimination Act) can validly pardon the
accused by herself if she
1. Offended party; has no parents or where
2. Parents or guardians; the accused is her own
3. Ascendant or collateral relative within the third father and her mother is
degree of consanguinity; Seduction,
dead;
4. Officer, social worker or representative of a Abduction, and
licensed child-caring institution; Acts of
2. The parents, grandparents
5. Officer or social worker of the Department of Lasciviousness:
or guardian of the
Social Welfare and Development; offended minor, in that
6. Barangay Chairman; or order, extend a valid
7. At least 3 concerned, responsible citizens pardon in said crimes
where the violation occurred. (Sec. 27, R.A. No. without the conformity of
7610) the offended party, even if
the latter is a minor; or

Criminal Procedure
3. If the offended woman is It shall be brought at the instance of and upon the
of age and not otherwise complaint filed by the offended party. (Sec. 5, Rule
incapacitated, only she can 110, ROC, as amended)
extend a valid pardon.
Effect of Death of the Offended Party to the
NOTE: The pardon shall be given before filing of the Criminal Action
criminal complaint in court. Pardon effected after
the filing of the complaint in court does not prohibit 1. Prior to the filing of the case in court but after
the continuance of the prosecution of the offense. a complaint was filed before the prosecutor –
the death of the complainant will not be
While the offenses of seduction, abduction, rape or sufficient justification for the dismissal of the
acts of lasciviousness, shall not be prosecuted information.
except upon a complaint filed by the offended party
or her parents, grandparents, or guardian, nor in 2. During the pendency of the case – the death of
any case, if the offender has been expressly the complainant will not extinguish the criminal
pardoned by the above named persons, as the case liability of the accused whether total or partial.
may be, the pardon to justify the dismissal of the (Donio-Teves v. Vamenta, G.R. No. L-38308, 26
complaint should have been made prior to the Dec. 1984)
institution of the criminal action. (Alonte v.
Savellano, G.R. No. 131652, 09 Mar. 1998) CRIMINAL ACTIONS, WHEN ENJOINED
Subsequent Marriage of the Accused and GR: The long-standing doctrine that writs of
Offended Party injunction or prohibition will not lie to restrain a
criminal prosecution for the reason that public
GR: The subsequent marriage between the party interest requires that criminal acts be immediately
and the accused, even after the filing of the investigated and prosecuted for the protection of
complaint, extinguishes the criminal liability of the society. (Domingo v. Sandiganbayan, G.R. No.
latter, together with that of the co-principals, 109376, 20 Jan. 2000)
accomplices and accessories.
XPNs:
XPNs: 1. To prevent the use of the strong arm of the law
1. Where the marriage was invalid or contracted in an oppressive and vindictive manner;
in bad faith in order to escape criminal 2. To afford adequate protection to
liability; constitutional rights;
3. For the orderly administration of justice
2. In “private libel” or the libelous imputation of (Hernandez v. Albano, supra);
the commission of the crimes of concubinage, 4. To avoid multiplicity of actions;
adultery, seduction, abduction, rape or acts of 5. In proper cases, because the statute relied
lasciviousness and in slander by deed; and upon is unconstitutional, or was held invalid;
6. When the acts of the officer are without or in
3. In multiple rape, in so far as the other accused excess of authority (Planas v. Gil, G.R. No. L-
in the other acts of rape committed by them 46440, 18 Jan. 1939);
are concerned. 7. When the court has no jurisdiction over the
offense (Lopez v. City Judge, G.R. No. L-25795,
3. Party who may file a complaint for defamation 29 Oct. 1966);
which consist in the imputation of the offenses 8. When there is a prejudicial question which is
of adultery, concubinage, seduction, abduction, sub judice (before a court or judge for
acts of lasciviousness. consideration);
9. Where the prosecution is under an invalid law,
ordinance or regulation;

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Remedial Law
10. When double jeopardy is clearly apparent; Q: Josefa married Amado when she was just 16
11. Where it is a case of persecution rather than years old. Prior to a declaration of nullity of her
prosecution; previous marriage with Amado, Josefa
12. Where the charges are manifestly false and contracted another marriage with Lorenzo
motivated by lust for vengeance; and Bumatay. Jana, a foster daughter of Lorenzo,
13. Where there is clearly no prima facie case filed a complaint against Josefa before the RTC
against the accused and a motion to quash on alleging that when Josefa married Lorenzo, she
that ground has been denied. knows fully well that her first marriage with her
first husband Amado, who is still living, has not
CONTROL OF PROSECUTION been legally dissolved. Amado subsequently
died. Therefore, Josefa sought to nullify her first
GR: The public prosecutor shall prosecute, direct, marriage with Amado. The RTC granted the
and control all criminal actions commenced by a petition and declared her first marriage null and
complaint or information. (Sec. 5, Rule 110, ROC, as void. She filed a Motion to Quash the
amended) Information regarding the Bigamy case filed
against her. The RTC decided in her favor and
Since a criminal offense is an outrage against the dismissed the case. Jana, feeling aggrieved,
sovereignty of the State, it necessarily follows that a appealed the same to the CA but the latter court
representative of the State shall direct and control dismissed the same. Hence, Jana filed a petition
the prosecution thereof. for review on certiorari under Rule 45 before
the SC. Is Janna correct?
XPN: The private prosecutor (private counsel) may
prosecute the case provided that: A: NO. Jana has no legal capacity to assail the
dismissal of the criminal case. Sec. 5 of Rule 110 of
1. The public prosecutor has heavy work the Rules of Court dictates that all criminal actions
schedule; or commenced by complaint or information shall be
2. There is lack of public prosecutors. prosecuted under the direction and control of a
public prosecutor. In appeals of criminal cases
NOTE: The private prosecutor must be authorized before the SC, the authority to represent the State is
in writing by the Chief Prosecution Office or vested solely in the OSG.
Regional State Prosecution; and such will be subject
to the court’s approval. (Sec. 5, Rule 110, ROC, as Inasmuch as the private offended party is but a
amended) witness in the prosecution of offenses, the interest
of the private offended party is limited only to the
In cases where only the civil liability is being aspect of civil liability. It follows therefore that in
prosecuted by a private prosecutor, the head of the criminal cases, the dismissal of the case against an
prosecution office must issue in favor of the private accused can only be appealed by the OSG, acting on
prosecutor a written authority to try the case even behalf of the State. (Bumatay v. Bumatay, G.R. No.
in the absence of the public prosecutor. The written 191320, 25 Apr. 2017, J. Caguioa)
authority must be submitted to the court prior to
the presentation of evidence by the private Prescription of the authority of the private
prosecutor in accordance with Sec. 5, Rule 110. prosecutor
(A.M. No. 15-06-10-SC)
The authority of the private prosecutor shall
With this authority on record, the court may set the continue until the end of the trial unless the
trial in the case and in other cases tried by private authority is revoked or withdrawn. (Sec. 5, Rule 110,
prosecutors with delegated authority on separate ROC, as amended)
days when the presence of the public prosecutor
may be dispensed with. (Ibid.)

Criminal Procedure
Matters within the control and supervision of Resolution reversing the resolution of the
the prosecutor Provincial Prosecutor and directing him to
withdraw the Information. Before the Provincial
1. What charge to file; Prosecutor could comply with the directive of
2. Whom to prosecute; the Secretary of Justice, the court issued a
3. Manner of prosecution; and warrant of arrest against Peter. The Public
4. Right to withdraw information before Prosecutor filed a Motion to Quash the Warrant
arraignment even without notice and hearing. of Arrest and to withdraw the Information,
attaching to it the Resolution of the Secretary of
NOTE: Once a complaint or information is filed in Justice. The court denied the motion. Was there
court, any disposition of the case rests in the sound a legal basis for the court to deny the motion?
discretion of the court. Although the fiscal retains (2002 BAR)
the direction and control of the prosecution of
criminal cases even while the case is already in A: YES. There is a legal basis for the court to deny
court, he cannot impose his opinion on the trial the motion to quash the warrant of arrest and to
court. The determination of the case is within the withdraw the information. The court is not bound
court’s exclusive jurisdiction and competence. by the Resolution of the Secretary of Justice. This is
(Crespo v. Mogul, G.R. No. L-53373, 30 June 1987) because once an information is filed in court, any
disposition of the case as its dismissal or the
Matters within the control of the Court after the conviction or acquittal of the accused rests in the
case is filed sound discretion of the court. (Crespo v. Mogul, G.R.
No. L-53373, 30 June 1987)
1. Suspension of arraignment;
2. Reinvestigation; NOTE: When a trial court is confronted to rule on a
3. Prosecution by the fiscal; motion to dismiss a case or to withdraw an
4. Dismissal of the case; and Information, it is its bounden duty to assess
5. Downgrading of offense or dropping of accused independently the merits of the motion, and this
even before plea. assessment must be embodied in a written order
disposing of the motion. (Jose v. Suarez, G.R. No.
Limitations on the Court’s power of control 176111, 17 July 2013)
1. Prosecution is entitled to notice of hearing; SUFFICIENCY OF COMPLAINT OR INFORMATION

2. Prosecution’s stand to maintain prosecution
should be respected by the court; A complaint or information is deemed sufficient if it
3. The court must make its own independent contains the following:
assessment of evidence in granting or
dismissing motion to dismiss. Otherwise, the 1. Name of the accused, if the offense is
judgment is void; and committed by more than one person, all of
4. Court has authority to review the Secretary of them shall be included in the complaint or
Justice’s recommendation and reject it if there information;
is grave abuse of discretion. (Villanueva v. 2. Designation of the offense given by the
Secretary of Justice, G.R. No. 162187, 18 Nov. statute;
2005) 3. Acts or omissions complained of as
constituting the offense;
Q: After the requisite proceedings, the 4. Name of the offended party;
Provincial Prosecutor filed and Information for 5. Approximate date of the commission of the
homicide against Peter. The latter however, offense; and
timely filed a Petition for Review of the 6. Place where the offense was committed (Sec.
Resolution of the Provincial Prosecutor with the 6, Rule 110, ROC, as amended)
Secretary of Justice who, in due time, issued a

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Remedial Law
Test of sufficiency of the complaint or Form of a valid complaint or information

information
1. In writing;
The test is whether the crime is described in 2. In the name of the People of the Philippines; and
intelligible terms with such particularity as to 3. Against all persons responsible for the offense
apprise the accused, with reasonable certainty, of involved. (Sec. 2, Rule 110, ROC, as amended)
the offense charged.
NOTE: In case of variance between the complaint
The raison d’etre of the rule is to enable the accused filed by the offended party and the information, the
to suitably prepare his defense. (Miranda v. Hon. complaint controls.
Sandiganbayan, G.R. No. 154098, 27 July 2005)
Another purpose is to enable accused, if found Name of the accused
guilty, to plead his conviction in a subsequent
prosecution for the same offense. (Serapio v. The complaint or information must state the name
Sandiganbayan, G.R. No. 148468, 28 Jan. 2003) and surname of the accused or any appellation or
nickname by which he has been or is known. If the
Information vs. Complaint name cannot be ascertained, he must be described
under a fictitious name with a statement that his
INFORMATION COMPLAINT true name is unknown. (Sec. 7, Rule 110, ROC, as
A sworn written amended)
An accusation in statement charging a
writing charging a person with an NOTE: If the true name of the accused is thereafter
person with an offense, offense, subscribed by disclosed or appears in some other manner, such
subscribed by the the offended party, any true name shall be inserted in the information or
prosecutor and filed by peace officer, or other complaint in record. (Ibid.)
him with the court. public officer charged
(Sec. 4, Rule 110, ROC, with the enforcement When an offense is committed by more than one
as amended) of the law violated. person, all of them shall be included in the
(Sec. 3, Rule 110, ROC, complaint or information. (Sec. 6, Rule 110, ROC, as
as amended) amended)
Requires no oath
because the prosecutor Mistake in the name of the accused
Must be “sworn,”
filing the information is
hence under oath.
acting under the oath of A mistake in the name of the accused is not
his office. equivalent and does not necessarily amount to a
Subscribed by: mistake in the identity of the accused especially
a) Offended party; when sufficient evidence is adduced to show that
b) Peace officer; or the accused is pointed to as one of the perpetrators
Subscribed by the c) Other public of the crime. (People v. Amodia, G.R. No. 173791, 07
prosecutor. officer charged Apr. 2009)
with the
enforcement of Name of the offended party
the law violated.
The complaint or information must state the name
NOTE: The complaint contemplated under Sec. 3 is and surname of the persons against whom or
different from the complaint filed with the against whose property the offense was committed
Prosecutor’s office. It refers to the one filed in court or any appellation or nickname by which such
for the commencement of the criminal prosecution, person has been or is known and if there is no better
i.e., private crimes. way of identifying him, he must be described under
a fictitious name.

Criminal Procedure
1. In crimes against property, if the name of the to be informed of the specific charge against him or
offended party is unknown, the property must her. (People v. Delfin, G.R. No. 201572, 09 July 2014)
be described with such particularity as to
properly identify the particular offense XPN: If the date of the commission of the offense
charged. (Sec. 12(a), Rule 110, ROC, as amended) constitutes an essential element of the offense (e.g.,
infanticide, abortion, bigamy). (Sec. 11, Rule 110,
2. If the true name of the offended party is ROC, as amended)
thereafter disclosed or ascertained, the court
must cause such true name to be inserted in the NOTE: The remedy against an indictment that fails
complaint or information in record. (Sec. 12(b), to allege the time of commission of the offense with
Rule 110, ROC, as amended) sufficient definiteness is a motion for bill of
particulars under Sec. 10, Rule 116 of the Rules of
3. If the offended party is a juridical person, it is Court. (People v. Elpedes, G.R. Nos. 137106-07, 31 Jan.
sufficient to state its name, or any name or 2001)
designation by which it is known or may be
identified, without need of averring that it is a Place of the commission of the crime
juridical person. (Sec. 12(c), Rule 110, ROC, as
amended) GR: The complaint or the information is sufficient if
it can be understood from its allegation that the
NOTE: In offenses against property, if the subject offense was committed, or some its essential
matter of the offense is generic and not identifiable, ingredients occurred at some place within the
such as the money unlawfully taken, an error in the jurisdiction of the court.
designation of the offended party is fatal and would
result in the acquittal of the accused. XPN: When the place of commission constitutes an
essential element of the offense charged or is
However, if the subject matter of the offense is necessary for its identification (e.g., trespass to
specific and identifiable, such as a warrant, or a dwelling, destructive arson, robbery in an inhabited
check, an error in the designation of the offended place). (Sec. 10, Rule 110, ROC, as amended)
party is immaterial. (Senador v. People, G.R. No.
201620, 6 March 2013) DESIGNATION OF OFFENSE (2001 BAR)
Particularity of the date of the commission of the The designation of the offense given by the statute
offense in the complaint or information must be stated in the complaint or information, with
the averment of acts or omissions constituting the
GR: It is not required. It suffices that the allegation offense and the attendant qualifying and
approximates or be as near as the actual date when aggravating circumstances. If there is no
the offense was committed. (Sec. 11, Rule 110, ROC, designation of the offense, reference shall be made
as amended) to the section or subsection of the statute punishing
it. (Sec. 8, Rule 110, ROC, as amended)
NOTE: Variance in the date of commission of the
offense as alleged in the information and as Q: Accused was charged with the offense of
established in evidence becomes fatal when such Estafa through Falsification of Public
discrepancy is so great that it induces the Documents under Art. 315 in relation to Art. 171
perception that the information and the evidence of the RPC in an information filed by the
are no longer pertaining to one and the same prosecutor before the RTC of Quezon City.
offense. In this event, the defective allegation in the Accused assailed the information claiming that
information is not deemed supplanted by the the information is invalid because the word
evidence nor can it be amended but must be struck "fraud" or "deceit" was not alleged in the
down for being violative of the right of the accused information. Decide the case.

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Remedial Law
A: Any error in the information, with regard to the the nomenclature of the offense that determines the
specification of the particular mode of estafa, crime being charged in the information. (Malto v.
allegedly committed by petitioners will not result in People, G.R. No. 164733, 21 Sept. 2007)
its invalidation because the allegations therein
sufficiently informed petitioners that they are being Q: May the accused be convicted of a crime more
charged with estafa through falsification of public serious than that named in the information?
documents.
GR: YES. The accused may be convicted of a crime
The Revised Rules of Criminal Procedure provides more serious than that named in the title or
that an information shall be deemed sufficient if it preliminary part if such crime is covered by the facts
states, among others, the designation of the offense alleged in the information and its commission is
given by the statute and the acts or omissions established by evidence. (Buhat v. CA, G.R. No.
complained of as constituting the offense. However, 119601, 17 Dec. 1996)
the Court has clarified in several cases that the
designation of the offense, by making reference to XPN: An accused could not be convicted under one
the section or subsection of the statute punishing, it act when he is charged with a violation of another if
is not controlling; what actually determines the the change from the statute to the other:
nature and character of the crime charged are the
facts alleged in the information. (Batulanon v. 1. Involves change in the theory of the trial;
People, G.R. No. 139857, 15 Sep. 2006; People v. 2. Requires of the defendant a different defense;
Delector, G.R. 200026, 04 Oct. 2017) or
3. Surprises the accused in any way. (U.S. v.
Conflict between the designation of the crime Panlilio, G.R. No. L-9876, 08 Dec. 1914)
and the recital of the facts constituting the
offense CAUSE OF THE ACCUSATION
The title of the information or designation of the The acts or omissions complained of as constituting
offense is not controlling. An Information does not the offense and the qualifying and aggravating
have to employ the exact language of the statute in circumstances must be stated in ordinary and
stating the charge. The criminal charge is concise language and not necessarily in the
determined from the recital of facts, and not from language used in the statute but in terms sufficient
the caption, preamble, or formal specification of the to enable a person of common understanding to
violated law. The information is deemed sufficient know what the offense is being charged as well as
as long as the controlling words in the body of the the qualifying and aggravating circumstances. (Sec.
Information adequately determine the crime 9, Rule 110, ROC, as amended)
charged. (Bustillo v. People, G.R. No. 216933, 15 Mar.
2021) Purposes of requiring that every element must
be alleged
Effect of failure to designate the offense by the
statute 1. To enable the court to pronounce the proper
judgment;
The failure to designate the offense by statute, or to 2. To furnish the accused with such a description
mention the specific provision penalizing the act, or of the charge as to enable him to make a
an erroneous specification of the law violated does defense; and
not vitiate the information if the facts alleged clearly 3. As a protection against further prosecution for
recite the facts constituting the crime charged. What the same cause. (Herrera, 2007)
controls is not the title of the information or the
designation of the offense, but the actual facts
recited in the information. In other words, it is the
recital of facts of the commission of the offense, not

Criminal Procedure
Effect when one or more elements of the offense duties. What is controlling is the specific actual
have NOT been alleged in the Information allegation in the information. (Lacson v. Executive
Secretary, G.R. No. 128006, 20 Jan. 1999)
The accused cannot be convicted of the offense
charged, even if the missing elements have been NOTE: An offense is deemed committed in relation
proved during the trial. Even the accused’s plea of to public office when the “office” is a constituent
guilty to such defective information will not cure the element of the offense. The test is whether the
defect, nor justify his conviction of the offense offense cannot exist without the office. (Crisostomo
charged. v. Sandiganbayan, G.R. No. 152398, 14 Apr. 2005) The
offense need not be connected with official duties. It
Statement of the qualifying and aggravating is enough that it is in relation to office. (Lecaroz v.
circumstances in the Information Sandiganbayan, G.R. No. 130872, 25 Mar. 1999)
The qualifying and aggravating circumstances must DUPLICITY OF THE OFFENSE; EXCEPTION
be specified in the information. They must not only
be proven but they must also be alleged, otherwise, GR: A complaint or information must charge only
they should not be considered. (Catiis v. CA, G.R. No. one offense.
153979, 06 Feb. 2006)
XPN: When the law prescribes a single punishment
Negative Averments for various offenses (Sec. 13, Rule 110, ROC, as
amended):
GR: Where the statute alleged to have been violated
prohibits generally acts therein defined and is 1. Complex crimes;
intended to apply to all persons indiscriminately, 2. Special complex crimes;
but prescribes certain limitation or exceptions from 3. Continuous crimes or delito continuado;
its violation, the complaint or information is 4. Crimes susceptible of being committed in
sufficient if it alleges facts which the offender did as various modes; and
constituting a violation of law, without explicitly 5. Crimes of which another offense is an
negating the exception, as the exception is a matter ingredient.
of right which the accused has to prove.
NOTE: Should there be duplicity of offense in the
XPN: Where the statute alleged to have been information, the accused must move for the quashal
violated applies only to specific classes of persons of the same before arraignment. (Sec. 3, Rule 117,
and special conditions and the exemptions from its ROC, as amended) Otherwise, he or she is deemed to
violations are incorporated in the language defining have waived the objection and may be found guilty
the crime that the ingredients of the offense cannot of as many offenses as those charged and proved
be accurately and clearly set forth if the exemption during the trial. (Sec. 3, Rule 120, ROC, as amended)
is omitted, then the indictment must show that the
accused does not fall within the exemptions.
(Herrera, 2007)
Matter/s to be alleged if the crime is “committed

in relation to his office”
Mere allegation in the information that the offense

was committed by the accused public officer in
relation to his office is not sufficient. The phrase is
merely “a conclusion of law,” not a factual averment
that would show close intimacy between the offense
charged and the discharge of the accused’s official

e

Remedial Law
AMENDMENT OR SUBSTITUTION OF Tests to determine the propriety of amendment

COMPLAINT OR INFORMATION after plea
AMENDMENT 1. Whether a defense under the information as it

originally stood would be available after the
amendment is made; and
Procedure for amendment
2. Whether any evidence defendant might have

KIND OF HOW AMENDMENT
would be equally applicable to the information
AMENDMENT IS MADE
in the one form as in the other. An amendment
TO BE MADE
to an information which does not change the
Before plea
nature of the crime alleged therein does not
1. Formal
affect the essence of the offense or cause
amendment; or
Without leave of court surprise or deprive the accused of an
2. Substantial
opportunity to meet the new averment had
amendment.
each been held to be one of form and not of
Substantial substance. (Ricarze v. CA, G.R. No. 160451, 09
amendment which: Feb. 2007)
a. Downgrades the
1. Upon a motion by the
nature of the offense Formal Amendment
prosecutor;
charged; or
2. With notice to the
b. Excludes any
accused; and A formal amendment is made when:
accused from the
3. With leave of court.
complaint or
1. It neither affects nor alters the nature of the
information offense charged; or
2. The charge does not deprive the accused of a
After plea and during the trial fair opportunity to present his defense; or
1. With leave of court; 3. It does not involve a change in the basic theory
and of the prosecution.
2. Without causing
Formal Amendment prejudice to the rights NOTE: The following have been held to be mere
of the accused. (Sec. 14, formal amendments:
Rule 110, ROC, as
amended) 1. New allegations which relate only to the range
GR: Not allowed of the penalty that the court might impose in the
event of conviction;
XPN: If the amendment
Substantial
is beneficial to the 2. An amendment which does not charge another
Amendment
accused. (Riano, 2019 offense different or distinct from that charged
citing Ricarze v. CA, 515 in the original one;
SCRA 302)
3. Additional allegations which do not alter the
Matters subject to amendment prosecution’s theory of the case so as to cause
surprise to the accused and affect the form of
Only valid information may be amended. An defense he has or will assume;
information filed before the effectivity of the law
punishing the offense may not be amended after the 4. An amendment which does not adversely affect
law had come into effect. (Herrera, 2007) any substantial right of the accused; and

Criminal Procedure
5. An amendment that merely adds specifications substantial; and under Sec. 14, Rule 110 of the
to eliminate vagueness in the information and Revised Rules of Criminal Procedure, this
not to introduce new and material facts, and cannot be done, since petitioner had already
merely states with additional precision been arraigned and he would be placed in
something which is already contained in the double jeopardy. Decide the case.
original information and which adds nothing
essential for conviction for the crime charged. A: In the present case, the change of the offense
(Ricarze v. CA, G.R. No. 160451, 09 Feb. 2007) charged from Homicide to Murder is merely a
formal amendment and not a substantial
Effect of a formal amendment amendment or a substitution. There was no change
in the recital of facts constituting the offense
There is no need for another preliminary charged or in the determination of the jurisdiction
amendment and retaking of the plea of the accused of the court.
if such were already conducted.
Sec. 14, Rule 110 of the Revised Rules on Criminal
Substantial Amendment Procedure also provides that in allowing formal
amendments in cases in which the accused has
An amendment is substantial when it covers already pleaded, it is necessary that the
matters involving the recital of facts constituting the amendments do not prejudice the rights of the
offense charged and determinative of the accused. The test of whether the rights of an accused
jurisdiction of the court. are prejudiced by the amendment of a complaint or
information is whether a defense under the
NOTE: After arraignment, a substantial amendment complaint or information, as it originally stood,
is prohibited except if the same is beneficial to the would no longer be available after the amendment
accused. Substantial amendment after the plea has is made; and when any evidence the accused might
been taken cannot be made over the objection of the have would be inapplicable to the complaint or
accused, for if the original would be withdrawn, the information. Since the facts alleged in the
accused could invoke double jeopardy. (Pacoy v. accusatory portion of the amended Information are
Cajical, G.R. No. 157472, 28 Sep. 2007) identical with those of the original Information for
Homicide, there could not be any effect on the
Q: An Information for Homicide was filed in the prosecution's theory of the case; neither would
RTC against petitioner. Upon arraignment, there be any possible prejudice to the rights or
petitioner, duly assisted by counsel de parte, defense of petitioner. (Pacoy v. Cajigal, G.R. No.
pleaded not guilty to the charge of 157472, 28 Sept. 2007)
Homicide. However, on the same day and after
the arraignment, the respondent judge issued Q: Espinosa was shot by Samonte in Nueva Ecija,
another Order directing the trial prosecutor to causing his death. Samonte was caught in
correct and amend the Information to Murder in flagrante de licto and was arrested. After the
view of the aggravating circumstance of inquest proceedings, an information for murder
disregard of rank alleged in the Information was filed against him. Upon arraignment,
which public respondent registered as having Samonte admitted to the killing but pleaded self-
qualified the crime to Murder. Acting upon such defense. Trial on the merits ensued. The
Order, the prosecutor entered his amendment witnesses against the accused were duly
by crossing out the word “Homicide” and instead presented through affidavits of witnesses.
wrote the word “Murder” in the caption and in According to one of the witnesses, it was alleged
the opening paragraph of the Information. The that it was Corpuz who instructed Samonte to
accusatory portion remained exactly the same Kill Espinosa. Thus, probable cause was found to
as that of the original Information for Homicide. indict Corpus for the murder of Espinosa and an
Petitioner argued that the amendment and/or amended information before the RTC was filed
correction ordered by the respondent judge was imputing conspiracy against Corpuz together

e

Remedial Law
with Samonte for the murder of Espinosa. The upgrades it to a higher crime, the prosecutor, with
charge against Corpuz was however dismissed. leave of court, may amend the information to allege
Subsequently, the Regional Trial Court after such supervening fact and upgrade the crime
personally examining the amended information charged to the higher crime brought about by such
and its supporting documents found probable supervening fact.
cause and granted the amended information
issuing the warrant of arrest against Corpus and
denying the motion to defer/suspend
SUBSTITUTION
I
arraignment and further proceedings. Thus, a
When substitution is proper
direct recourse to this Court via a petition for
certiorari under Rule 65. Did the trial court
If it appears any time before judgment that a
correctly admit the Amended Information in
mistake has been made in charging the proper
clear defiance of law and jurisprudence, which
offense, the court shall dismiss the original
proscribes substantial amendment of
complaint or information upon the filing of a new
information prejudicial to the right of the
one charging the proper offense, provided the
accused?
accused shall not be placed in double jeopardy. (Sec.
A: NO. An allegation of conspiracy to add a new
accused without changing the prosecution's theory
Limitations on substitution (2002 BAR)
that the accused willfully shot the victim is merely a
formal amendment. However, the rule provides that
1. No judgment has yet been rendered;
only formal amendments not prejudicial to the
2. The accused cannot be convicted of the offense
rights of the accused are allowed after plea. The test
charged or of any other offense necessarily
of whether an accused is prejudiced by an
included therein; and
amendment is to determine whether a defense
3. The accused would not be placed in double
under the original information will still be available
jeopardy. (Herrera, 2007)
even after the amendment is made and if any
evidence that an accused might have would remain
Effect of a substitution
applicable even in the amended information. It is
undisputed that upon arraignment under the
Substitution of the information entails another
original information, Samonte admitted the killing
preliminary investigation and plea to the new
but pleaded self-defense. While conspiracy is
information.
merely a formal amendment, Samonte will be
prejudiced if the amendment will be allowed after
Amendment vs. Substitution (2001, 2002 BAR)
his plea. Applying the test, his defense and
corresponding evidence will not be compatible with
AMENDMENT SUBSTITUTION
the allegation of conspiracy in the new information.
May involve either Involves substantial
Therefore, such formal amendment after plea is not
formal or substantial change from the original
allowed. (Samonte vs. Pamular, G.R. 186403, 05 Sep.
changes. charge.
2018)
Amendment before
It must be with leave of
the plea is entered
Amendment in the Information which changes court as the original
can be effected
the nature of the crime after arraignment information has to be
without leave of
dismissed.
court.
GR: The prosecutor can no longer amend the
information after arraignment as it would prejudice Substitution of the
An amendment as to
information entails
the substantial rights of the accused. form will not require
another preliminary
another preliminary
XPN: When a fact supervenes which changes the investigation and plea to
investigation and
the new information.
nature of the crime charged in the information or

Criminal Procedure
retaking of plea of the 2. Where the offense is committed on board a

accused. vessel on its voyage – The criminal action may
An amended be instituted and tried in the proper court of the
information refers to first port of entry or of any municipality or
the same offense territory through which the vessel passed
charged in the during such voyage subject to the generally
original information accepted principles of international law (Sec.
or to an offense which Requires or 15(c), Rule 110, ROC, as amended);
necessarily includes presupposes that the
or is necessarily new information 3. Felonies under Art. 2 of the RPC – Shall be
included in the involves a different cognizable by the proper court where the
original charge, offense which does not criminal action was first filed (Sec. 15(d), Rule
hence substantial include or is not 110, ROC, as amended);
amendments to the necessarily included in
information after the the original charge; 4. Continuous or transitory crimes – Such
plea has been taken hence the accused offenses may be tried by the court of any
cannot be made over cannot claim double jurisdiction wherever the offender may be
the objection of the jeopardy. found, but the complainant should allege that
accused, for if the the offense was committed within the
original would be jurisdiction of the court (Herrera, 2007);
withdrawn, the
accused could invoke 5. Piracy – The venue of piracy, unlike all other
double jeopardy. crimes, has no territorial limits. It is triable
anywhere;
VENUE OF CRIMINAL ACTIONS
6. Libel – The action may be instituted at the
Venue for the institution of criminal actions election of the offended or suing party in the
municipality or city where:
GR: Subject to existing laws, criminal action shall be
instituted and tried in the court of the municipality a. The libelous article is printed and first
or territory where the offense was committed or published;
any of its essential ingredients occurred. (Sec. 15(a), b. If one of the offended parties is a private
Rule 110, ROC, as amended) individual, where said private individual
actually resides at the time of the
NOTE: Venue is a jurisdictional matter. The court commission of the offense; or
cannot exercise jurisdiction over a person charged c. If the offended party is a public official,
with an offense committed outside its limited where the latter holds office at the time of
territory. (Riano, 2019) the commission of the offense.
XPNs: 7. B.P. No. 22 cases – The criminal action shall be

1. An offense was committed on a railroad train, filed at the place where the check was drawn,
in an aircraft, or in any other public or issued, delivered, or dishonored. In case of
private vehicle in the course of trip – The crossed check, the place of the depositary or the
criminal action may be instituted and tried in collecting bank
the court of any municipality or territory where
such train, aircraft or other vehicle passed 8. Perjury – The criminal action may be instituted
during such trip, including the place of at the place where the testimony under oath is
departure and arrival (Sec. 15(b), Rule 110, ROC, given or where the statement is submitted,
as amended); since both are material ingredients of the crime

e

Remedial Law
committed (Union Bank vs. People, G.R. No. INTERVENTION OF OFFENDED PARTY
192562, 28 Feb. 2012);
GR: The offended party has the right to intervene by
9. Violation of Sec. 9 of Migrant Worker and counsel in the prosecution of the criminal action
Oversees Filipino Act of 1995 – It shall be filed where the civil action for the recovery of civil
not only in RTC where the offense was liability is instituted in the criminal action pursuant
committed but it may also be filed where the to Rule 111. (Sec. 16, Rule 110, ROC, as amended)
offended party actually resides at the time of
the commission of the offense. The first court to XPNs:
acquire jurisdiction excludes others; 1. From the nature of the crime and the law
defining or punishing it, no civil liability arises
10. Article 315(2)(d) of the RPC – It may be in favor of the offended party, e.g., sedition,
instituted at the place where the deceit or rebellion, treason (crimes against national
damage may arise; security);
2. The offended party waived the right to civil
11. Where the Supreme Court, pursuant to its indemnity;
constitutional powers orders a change of venue 3. The offended party had already instituted
or place of trial to avoid a miscarriage of justice separate action; or
(Section 5(4), Article VIII, 1987 Constitution of 4. The offended party reserved the right to
the Philippines); institute it separately.
12. Cases cognizable by Sandiganbayan – Where Q: Gary requested the Ombudsman to

the case is cognizable by the Sandiganbayan, the investigate the petitioner, Retired Brig. Gen.
jurisdiction of which depends upon the nature Jose S. Ramiscal, Jr., then President of the AFP-
of the offense and the position of the accused RSBS together with 27 other persons for
the offense need not be tried in the place where allegedly conspiring in misappropriating AFP-
the act was committed but where the court RSBS funds and in defrauding the government
actually sits in Quezon City. millions of pesos in capital gains and
documentary stamp taxes. Special Prosecutor
Q: Mike was charged with libel. The information Joy C. Rubillar-Arao filed 24 separate
however failed to allege that complainant Roy Informations with the Sandiganbayan against
was a resident of the place over which the court the petitioner and several other accused.
has jurisdiction. May Mike file a motion to quash Ramiscal filed an Urgent Manifestation and
based on such defect in the Information? Motion to Suspend Proceedings, because of the
pendency of his motion for reinvestigation with
A: YES. In libel cases, failure to allege in the the Office of the Ombudsman. Pending
information that the offended party is a resident of resolution of the aforementioned motions, the
the place over which the court where the law firm of Albano & Associates filed a “Notice of
information was filed has jurisdiction and the fact Appearance” as private prosecutors. The notice
that the articles were first published and printed in of appearance was apparently made
said place is a substantial defect that can be a proper conformably to the letter-request of Retired
ground for a motion to quash on the ground of lack Commodore Ismael Aparri and Retired Brig.
of jurisdiction. Such defect is not merely as to form Gen. Pedro Navarro, who are members
which can be properly amended. (Agustin v. De Leon, Association of Generals and Flag Officers, Inc.
G.R. No. 164938, 22 Aug. 2005) (AGFOI). Petitioner opposed the appearance of
the law firm of Albano & Associates as private
prosecutors, contending that the charges
brought against him were purely public crimes
which did not involve damage or injury to any
private party; thus, no civil liability had arisen.

Criminal Procedure
Is the contention of petitioner tenable? (2015 of the accused. (Ricarze v. Court of Appeals, G.R. No.
BAR) 160451, 09 Feb. 2007)
A: YES. The court agreed with the contention of the Generally, a criminal case has two aspects, the civil
petitioner that the AGFOI, and even Commodore and the criminal.
Aparri and Brig. Gen. Navarro, are not the offended
parties envisaged in Sec. 16, Rule 110, in relation to RULE ON IMPLIED INSTITUTION OF CIVIL
Sec. 1, Rule 111 of the Revised Rules of Criminal ACTION WITH CRIMINAL ACTION
Procedure. Under Sec. 5, Rule 110 of the Rules, all
criminal actions covered by a complaint or GR: The institution or filing of the criminal action
information shall be prosecuted under the direct includes the institution therein of the civil action for
supervision and control of the public prosecutor. recovery of civil liability arising from the offense
The prosecution of offenses is a public function. charged.
Under Sec. 16, Rule 110 of the Rules of Criminal XPNs: When the offended party:
Procedure, the offended party may intervene in the
criminal action personally or by counsel, who will 1. Waives the civil action;
act as private prosecutor for the protection of his 2. Reserves his right to file a separate civil action;
interests and in the interest of the speedy and or
inexpensive administration of justice. However, the 3. Institutes a civil action prior to the criminal
offended party is the government, which was action. (Sec. 1, Rule 111, ROC, as amended)
allegedly deprived by the petitioner and the other
accused of the capital gains and documentary stamp Reservation to file a separate civil action
taxes, based on the actual and correct purchase
price of the property stated therein in favor of the Jurisprudence instructs that the reservation may
AFP-RSBS. The AGFOI was not involved whatsoever not be necessarily expressed, but may be implied,
in the sales subject of the crimes charged; neither which may be inferred not only from the acts of the
was it prejudiced by the said transactions, nor is it offended party, but also from acts other than those
entitled to the civil liability of the petitioner for said of the latter. (Herrera, 2007)
cases. Thus, it is not the offended party in the said
cases. (Ramiscal Jr., v. Sandiganbayan, G.R. No. NOTE: Failure of the court to pronounce judgment
140576-99, 13 Dec. 2004) as to the civil liability amounts to the reservation of
the right to a separate civil action. (Ibid.)
C. PROSECUTION OF CIVIL ACTIONS Period when reservation of the right to file civil
(RULE 111) action shall be made
The reservation of the right to institute separately

the civil action shall be made before the prosecution
Every person criminally liable for a felony is also
starts presenting the evidence, and under
civilly liable. (Art. 100, RPC) The prime purpose of
circumstances affording the offended party a
the criminal action is to punish the offender in order
reasonable opportunity to make the reservation.
to deter him and others from committing the same
(Sec. 1(2), Rule 111, ROC, as amended)
or similar offense, to isolate him from society,
reform and rehabilitate him or, in general, to
Effect of reserving the right to file a separate
maintain social order. On the other hand, the sole
civil action
purpose of the civil action is for the resolution,
reparation or indemnification of the private
The prescriptive period of the civil action that was
offended party for the damage or injury he
reserved shall be tolled. (Sec. 2, Rule 111, ROC, as
sustained by reason of the delictual or felonious act
amended)

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Remedial Law
Real parties in interest in the civil aspect of the Q: May the offended party compromise the civil
cases aspect of a crime?
The real parties in interest in the civil aspect of a A: YES. Provided that it must be entered before or
decision are the offended party and the accused. during the litigation and not after final judgment.
Hence, either the offended party or the accused may
appeal the civil aspect of the judgment despite the Q: Can an employer be held civilly liable for
acquittal of the accused. The public prosecutor quasi-delict in a criminal action filed against his
generally has no interest in appealing the civil employee?
aspect of a decision acquitting the accused. (Hun
Hyung Park v. Eun Wong Choi, G.R. No. 165496, 12 A: NO. The employer cannot be held civilly liable for
Feb. 2007) quasi-delict since quasi-delict is not deemed
instituted with the criminal action. If at all, the only
Instances when the reservation to file a separate civil liability of the employer would be his
civil action is NOT allowed subsidiary liability under the RPC. Noteworthy is
the fact that the subsidiary liability established in
1. Criminal action for violation of BP 22 (Sec. Arts. 102 and 103 of the RPC may be enforced in the
1(b), Rule 111, ROC, as amended); same criminal case by filing in said criminal action a
2. A claim arising from an offense which is motion for execution against the person subsidiarily
cognizable by the Sandiganbayan (Herrera, liable. (Maniago v. CA, G.R. No. 104392, 20 Feb. 1996)
2007); and
3. Tax cases (Sec. 7(b)(1), R.A. No. 9282) WHEN A CIVIL ACTION MAY PROCEED
INDEPENDENTLY
NOTE: Only the civil liability arising from the crime
charged (cause of action arising from delict) as a Instances when civil actions may proceed
felony is now deemed instituted. (Sarmiento, Jr. vs. independently (2005, 2010 BAR)
Court of Appeals, G. R. No. 122502, 27 Dec. 2002)
1. Arising from breach of contract; and
Q: In an action for violation of BP 22, the court 2. Independent civil actions or those based on
granted the accused's demurrer to evidence Arts. 32, 33, 34 and Art. 2176 of the NCC or
filed without leave of court. However, the quasi-delict (Herrera, 2007)
accused was required to pay private
complainant the face value of the check. The The quantum of evidence required is merely
accused filed a motion for reconsideration preponderance of evidence. (Sec. 3, Rule 111, ROC, as
regarding the order to pay the face value of the amended)
check on the ground that the demurrer to
evidence applied only to the criminal aspect of Reservation of the right to file independent civil
the case. Resolve the motion for action
reconsideration. (2003, 2001 BAR)
The failure to reserve the right to file the above-
A: The motion for reconsideration should be denied. enumerated actions does not amount to a waiver to
The ground that the demurrer to evidence applied institute a separate civil action. (Herrera, 2007)
only to the criminal aspect of the case was not
correct. Under Rule 111 of the Rules of Court, the Recovery of civil liability under Articles 32, 33, 34
criminal action for violation of B.P. No. 22 shall be and 2176 of the Civil Code may be prosecuted
deemed to include the corresponding civil action. separately even without reservation. (DMPI
No reservation to file such civil action separately Employees Credit Cooperative v. Velez, G.R. No.
shall be allowed. 129282, 29 Nov. 2001)
NOTE: In no case, however, may the offended party

Criminal Procedure
recover damages twice for the same act or omission the court trying the criminal action. (Sec. 2, Rule 111,
charged in the criminal action. ROC, as amended)
Q: Tomas was criminally charged with serious NOTE: In cases where the consolidation is given due
physical injuries allegedly committed against course, the evidence presented and admitted in the
Darvin. During the pendency of the criminal civil case shall be deemed automatically reproduced
case, Darvin filed a separate civil action for in the criminal action without prejudice to
damages based on the injuries he had sustained. admission of additional evidence and right to cross
Tomas filed a motion to dismiss the separate examination. (Sec. 2, Rule 111, ROC, as amended)
civil action on the ground of litis
pendentia, pointing out that when the criminal EFFECT OF DEATH OF ACCUSED OR CONVICT ON
action was filed against him, the civil action to CIVIL ACTION
recover the civil liability from the offense
charged was also deemed instituted. He insisted If the accused died:
that the basis of the separate civil action was the
very same act that gave rise to the criminal 1. After arraignment and during the pendency
action. Rule on Tomas' motion to dismiss, with of the criminal action
brief reasons. (2017 BAR)
GR: The civil liability of the accused based on
A: Tomas’ motion to dismiss on the ground of litis the crime (civil liability ex delicto) is
pendentia should be denied. In cases of physical extinguished.
injuries, a civil action for damages, entirely separate
and distinct from the criminal action, may be XPNs:
brought by the injured party. Such civil action shall a. Independent civil action based on Arts. 32
proceed independently of the criminal action and 33, 34 and 2176 of the Civil Code; and
hence may not be dismissed on the ground of litis b. Civil liability predicated on other sources of
pendentia. (Art. 33, Civil Code; Sec. 3, Rule 111, ROC, obligations, i.e., law, contract, and quasi-
as amended) contract, which are subsequently
instituted.
WHEN SEPARATE CIVIL ACTION IS SUSPENDED
2. Before arraignment – the offended party may
GR: If the civil action is instituted before the file the civil action against the estate of the
criminal action, the pending civil action, in whatever deceased. (Sec. 4, Rule 111, ROC, as amended)
stage it may be found, shall be suspended until final
judgment of the criminal action has been rendered. 3. Pending appeal
a. Civil liability arising from the crime is
XPNs: extinguished
1. Independent civil actions based on Arts. 32, 33, b. Civil liability predicated from another source
34 and 2176 of the Civil Code; survives i.e., civil liability arising from law,
2. Civil action presenting a prejudicial question; contracts, quasi-contract and quasi-delict.
and
3. Civil action is not one intended to enforce the NOTE: In nos. 1 and 3(b), the civil action may be
civil liability arising from the offense. continued against the estate or legal representative
of the accused after proper substitution, as the case
Consolidation of civil action and criminal action may be. (Sec. 4, Rule 111, ROC, as amended)
Before judgment on the merit is rendered in the civil Where the civil liability survives, it may be pursued
action, the same may, upon motion of the offended by the filing of a separate civil action unless
party, be consolidated with the criminal action in otherwise waived, reserved or instituted prior to

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the institution of the criminal action. (Herrera, extinguish his civil liability which may arise
2007) from the offense; or
Q: Democrito Paras was charged with one count 2. If the acquittal is based on reasonable doubt
of rape. The Regional Trial Court (RTC) found on the guilt of the accused - the civil liability of
Paras guilty as charged which was affirmed by the accused arising from the crime may be
the Court of Appeals (CA). Paras appealed the proved by preponderance of evidence.
decision of CA before the Supreme Court. (Herrera, 2007)
However, the Court was informed that Paras had
died at the New Bilibid Prison Hospital. Is the NOTE: When the trial court acquits the accused
civil liability of Paras extinguished together based on reasonable doubt, it could make a
with his criminal liability in case of death pronouncement on the civil liability of the accused.
pending appeal? (Lontoc v. Jarantilla, G.R. No. 80194, 21 Mar. 1989)
The court may be compelled to include in the
A: YES. Under Article 89, paragraph 1 of the Revised judgment of acquittal the civil liability through a
Penal Code, as amended, the death of an accused petition for mandamus. (Maximo v. Gerochi, G.R. Nos.
pending his appeal extinguishes both his criminal L-47994-97, 24 Sep. 1986)
and civil liability ex delicto. In this case, when Paras
died on January 24, 2013, his appeal to the Court Instances where the acquittal of the accused
was still pending. The death of Paras, thus, does NOT bar the continuation of the civil case
extinguished his criminal liability, as well as his civil
liability directly arising from and based solely on the 1. Acquittal based on reasonable doubt;
crime committed. (People v. Paras, G.R. No. 192912, 2. The decision contains a declaration that the
03 Oct. 2014) liability of the accused is not criminal but only
civil in nature;
Extinguishment of criminal liability 3. The civil liability is not derived from or based
on the criminal act of which the accused is
GR: The extinction of the penal action does not acquitted
extinguish the civil action. 4. When the statute so declares (e.g., Art. 332 of
the Revised Penal Code);
XPN: When there is a finding in a final judgment in 5. Art. 11(4) of the Revised Penal Code; and
the criminal action that the act or omission from 6. Art. 12(1-6) of the Revised Penal Code.
which the civil liability might arise did not exist.
(Sec. 2, Rule 111, ROC, as amended) Q: Does a judgment in favor of the defendant in
a civil action bar a criminal action for the same
NOTE: The civil action that is extinguished refers act?
exclusively to civil liability arising from the crime
and does not include civil actions: A: NO. Final judgment rendered in a civil action
absolving the defendant from civil liability is not a
1. Based on quasi-delict; bar to criminal action against the defendant for the
2. Based on Arts. 32, 33 and 34 of the NCC same act or omission subject of the civil action (Sec.
(independent civil actions); and 5, Rule 111, ROC, as amended) unless the civil action
3. Civil obligation not based on the criminal is a prejudicial question which involves an issue
offense. (Herrera, 2007) similar or intimately related to the issue raised in
the criminal, the resolution of which determines
Effect of the acquittal of the accused on his civil whether or not the criminal action may proceed.
liability
1. If the acquittal is based on the ground that he

was not the author of the crime - it will

Criminal Procedure
PREJUDICIAL QUESTION (e) one case is administrative and the other

criminal.
It is an issue involved in a civil action which is
similar or intimately related to the issue raised in a Further, the law limits a prejudicial question to a
criminal action, the resolution of which determines previously instituted civil action not to a subsequent
whether the criminal action may proceed. one.
A prejudicial question generally exists in a situation The tenor of Sec. 7, likewise, presupposes that the
where a civil action and a criminal action are both issue that leads to a prejudicial question is one that
pending, and there exists in the former an issue that arises in the civil case and not in the criminal case.
must be pre-emptively resolved before the latter The former needs to be resolved first before it is
may proceed, because howsoever the issue raised in determined whether or not the criminal case should
the civil action is resolved would be determinative proceed or whether or not there should be, in the
of the guilt or innocence of the accused in the criminal case, a judgment of acquittal or conviction.
criminal case. The rationale behind the principle is (Riano, 2019)
to avoid two conflicting decisions. (Reyes v. Rossi,
G.R. No. 159823, 18 Feb. 2013) Q: Rafael Consing together with his mother
obtained several loans from Unicapital Inc,
NOTE: A petition for suspension of the criminal secured by a real estate mortgage. However, it
action based upon the pendency of a prejudicial appears that the former are not the true owners
question may be raised during the preliminary of the property and the Transfer Certificate Title
investigation. When the criminal action has been presented is spurious. Consing then filed a
filed in court for trial, the petition to suspend shall petition for injunctive relief in the RTC of Pasig
be filed in the same criminal action at any time seeking to enjoin Unicapital to proceed against
before the prosecution rests. (Sec. 6, Rule 111, ROC, him on the ground that he merely acted as agent
as amended) of his mother. Unicapital, on the other hand,
initiated a criminal complaint for estafa through
Elements of a prejudicial question falsification of public document. Unicapital also
filed a civil case in RTC of Makati for recovery of
1. The civil action must be instituted prior to the sum of money and damages, with application for
criminal action (Sec. 7, Rule 111, ROC, as a writ of preliminary attachment. Consing
amended); moved to defer his arraignment in the Makati
2. The civil action involves an issue similar or criminal case on the ground of the existence of a
intimately related to the issue raised in the prejudicial question due to the pendency of the
subsequent criminal action (Ibid.); and Pasig and Makati civil case. Is there a prejudicial
3. The resolution of such issue determines question?
whether or not the criminal action may
proceed. (Ibid.) A: NONE. An independent civil action based on
fraud initiated by the defrauded party does not raise
NOTE: For the principle of prejudicial question to a prejudicial question to stop the proceedings in a
apply, it is essential that there be two cases pending criminal prosecution of the defendant for
involved, invariably a civil case and a criminal case. estafa through falsification. This is because the
Hence, it may not be invoked when: result of the independent civil action, the civil case
for damages and attachment, is irrelevant to the
(a) both cases are criminal, issue of guilt or innocence of the accused. As far as
(b) both are civil, the Pasig civil case is concerned, the issue of
(c) both are administrative, Consing’s being a mere agent of his mother, poses
(d) one case is administrative and the other no prejudicial question, and even if respondent is
civil, or declared merely an agent of his mother, he cannot
be adjudged free from criminal liability. Hence, the

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determination of the issue involved in the civil case bigamy. (People v. Odtuhan, G.R. No. 191566, 17 July
for injunctive relief is irrelevant to the guilt or 2013)
innocence of the respondent in the criminal case for
estafa through falsification of public document. Q: Is the resolution of the action for annulment
(Consing v. People, G.R. No. 161075, 15 July 2013) of marriage a prejudicial question that warrants
the suspension of the criminal case for
Q: Solomon and Faith got married in 2005. In frustrated parricide?
2010, Solomon contracted a second marriage
with Hope. When Faith found out about the A: NO. There is a prejudicial question when a civil
second marriage of Solomon and Hope, she filed action and a criminal action are both pending, and
a criminal case for bigamy before the RTC of there exists in the civil action an issue which must
Manila sometime in 2011. Meanwhile, Solomon be preemptively resolved before the criminal action
filed a petition for declaration of nullity of his may proceed because the issue raised in the civil
first marriage with Faith in 2012, while the case action is resolved would be determinative of the
for bigamy before the RTC of Manila is ongoing. guilt or innocence of the accused in the criminal
Subsequently, Solomon filed a motion to case.
suspend the proceedings in the bigamy case on
the ground of prejudicial question. He asserts The issue in the annulment of marriage is not
that the proceedings in the criminal case should similar or intimately related to the issue in the
be suspended because if his first marriage with criminal case for parricide. Further, the
Faith will be declared null and void, it will have relationship between the offender and the victim is
subsequent effect of exculpating him from the not determinative of the guilt or innocence of the
crime of bigamy. Decide. (2014 BAR) accused. Even if the marriage between petitioner
and respondent is annulled, petitioner could still be
A: The motion filed by Solomon should be denied. held criminally liable since at the time of the
The elements of a prejudicial question are: commission of the alleged crime, he was still
married to respondent. (Pimentel v. Pimentel, G.R.
(a) the previously instituted civil action No. 172060, 13 Sep. 2010)
involves an issue similar or intimately related
to the issue raised in the subsequent criminal Q: Atty. Alfred obtained a loan from Bing
action, and covered by several postdated checks. The
(b) the resolution of such issue determines checks were dishonored by the bank when Bing
whether or not the criminal action may tried to encash them. Bing filed a case for
proceed. violation of BP 22 before the MTC. Bing also filed
a disbarment case. Atty. Alfred argues that the
Thus, in order for a prejudicial question to exist, the criminal prosecution constitutes a prejudicial
civil action must precede the filing of the criminal question in the administrative proceedings for
action. (Dreamwork Construction, Inc. v. Janiola, G.R. his disbarment. Is Atty. Alfred correct?
No. 184861, 30 June 2009) Since the criminal case for
bigamy was filed ahead of the civil action for A: NO. Administrative cases against lawyers are sui
declaration of nullity of marriage, the principle of generis. They are distinct from and may proceed
prejudicial action cannot apply. independently of criminal cases. The burden of
proof in a criminal case is guilt beyond reasonable
Moreover, it has been settled that a pending case for doubt while in an administrative case only
declaration of nullity of marriage does not raise a substantial evidence is required. Thus, a criminal
prejudicial question to a charge of bigamy because a prosecution will not constitute a prejudicial
person, by having contracted a second marriage question even if the same facts and circumstances
without first awaiting a judicial declaration of are attendant in the administrative proceedings. (Yu
nullity of his marriage, has already committed v. Palaña, A.C. No. 7747, 14 July 2008)

Criminal Procedure
Action in the event there exist a prejudicial decision before a final judgment is rendered in the
question principal action with which said question is closely
connected.
A petition for the suspension of the criminal action
based upon the pendency of a prejudicial question Given the foregoing, the Court finds that although
in a civil case. (Sec. 6, Rule 111, ROC, as amended) It the facts of this case involve a criminal action which
cannot be done motu propio by the court. (Yap v. preceded the institution of civil action, a prejudicial
Paras, G.R. No. 101236, 30 Jan. 1992) question nevertheless exists. Sec. 7 of Rule 111 of
the Revised Rules on Criminal Procedure is more
Suspension of criminal case does not warrant its directory than mandatory and must give way to the
dismissal, but only authorizes its suspension chief litmus test of whether the actions involve
pending the final determination of the issues in the prejudicial issues and facts that are intimately
civil case. (Riano, 2019) related so a resolution in one concludes that
resolution in the other.
The petition to suspend can be filed only in the
criminal action, the determination of the pendency In sum, prejudicial factual finding of genuineness of
of a prejudicial question should be made at the first Sps. Granda’s signatures on the questioned deeds
instance in the criminal action, and not before the must operate to bar the prosecution of respondents
Supreme Court in an appeal from the civil action. for falsification of the same signatures. (People v.
(IBP v. Atienza, G.R. No. 175241, 24 Feb. 2010) Camenforte and Lastrilla, G.R. No. 220916, 14 June
2021, J. Caguioa)
Where to file the petition for suspension
RULE ON FILING FEES IN CIVIL ACTION DEEMED
1. The Office of the Prosecutor; or INSTITUTED WITH THE CRIMINAL ACTION
2. The court where the criminal action has been
filed for trial at any time before the prosecution Filing fees shall be paid when damages are being
rests. (Sec. 6, Rule 111, ROC, as amended) claimed by the offended party.
Q: Sps. Rafael and Aurora Granda entered into 1. Actual damages

three sale transactions with Uy siblings and
Lastrilla, covering several parcels of land. After GR: No filing fee is required.
the execution of the Deeds of Sale, the first and
second Deeds of Sale were annotated on the XPN: B.P. 22 cases, wherein the amount of the
respective TCTs. As a result, these TCTs were filing fees shall be equivalent to the amount of
cancelled and new TCTs were issued in the the check involved.
names of the respective vendees. Sps. Granda
eventually died. After Aurora’s death, Rafaelo 2. Liquidated, moral, nominal, temperate or
Granda, the grandson of Sps. Granda, filed a exemplary damages – The filing fee shall be
complaint for falsification which was allegedly based on the amount alleged in the complaint or
made by Lastrilla, Camenforte, and Uy siblings. information. (Sec. 1(4), Rule 111, ROC, as
While the criminal cases against the Lastrillas amended)
and Uys were pending, Benjamin Granda filed a
complaint for Nullification of Title and Deeds NOTE: If the amount of the damages claimed is
with damages against Lastrilla and Uy siblings. not specifically alleged in the complaint or
Will the criminal case prosper? information, but the court subsequently awards
such, the filing fees based on the amount
A: NO. The action is already barred by operation of awarded shall constitute a first lien on the
the doctrine of prejudicial question. Prejudicial judgment. (Sec. 1(3), Rule 111, ROC, as amended)
question is understood in law to be that which must
precede the criminal action that which requires a

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Probable cause as determined by the Prosecutor

D. PRELIMINARY INVESTIGATION vs. Probable cause as determined by the Judge
PROBABLE CAUSE PROBABLE CAUSE AS

AS DETERMINED BY DETERMINED BY THE
1. EXECUTIVE v. JUDICIAL DETERMINATION OF
THE PROSECUTOR JUDGE
PROBABLE CAUSE
Purpose
For the issuance of
There are two kinds of determination of probable For the filing of an
cause: executive and judicial. warrant to determine
information in court
whether there is a
by determining
1. The executive determination of probable necessity for placing the
whether there is
accused under
cause is one made during preliminary reasonable ground to
immediate custody in
investigation. It is a function that properly believe that the
pertains to the public prosecutor who is given a order not to frustrate
accused is guilty of
the ends of justice.
broad discretion to determine whether the offense charged
(P/Supt. Cruz v. Judge
probable cause exists and to charge those and should be held for
whom he believes to have committed the crime Areola, A.M. No. RTJ-01-
trial.
1642, 06 Mar. 2002)
as defined by law and thus should be held for
trial. Function
Executive function Judicial function
2. The judicial determination of probable cause Basis
is one made by the judge to ascertain whether a The report and the
warrant of arrest should be issued against the supporting documents
accused. The judge must satisfy himself that submitted by the fiscal
Reasonable ground to
based on the evidence submitted, there is during the preliminary
believe that a crime
necessity for placing the accused under custody investigation and the
has been committed.
in order not to frustrate the ends of justice. If supporting affidavits
the judge finds no probable cause, the judge that may be required to
cannot be forced to issue the arrest warrant. be submitted.
(Reyes v. The Honorable Ombudsman, G.R. Nos.
212593-94, 15 Mar. 2016) NOTE: If the complaint or information is filed with
the Municipal Trial Court or Municipal Circuit Trial
If upon evaluation of the evidence, the prosecutor Court for an offense not requiring a preliminary
finds sufficient basis to find probable cause, he or investigation nor covered by the Rule on Summary
she shall cause the filing of the information with the Procedure, the judge is required to determine
court. Once the information has been filed, the judge probable cause not only for the issuance of a
shall then “personally evaluate the resolution of the warrant of arrest, but also for the issuance of a
prosecutor and its supporting evidence” to commitment order if the accused had already been
determine whether there is probable cause to issue arrested and hold him for trial. (Sec. 8(b), A.M. No.
a warrant of arrest. The difference is clear: the 05-8-26-SC, effective 30 Aug. 2005)
executive determination of probable cause
concerns itself with whether there is enough RESOLUTION OF INVESTIGATING PROSECUTOR
evidence to support an Information being filed. The
judicial determination of probable cause, on the Initial steps in Preliminary Investigation
other hand, determines whether a warrant of arrest
should be issued. (Mendoza v. People, G.R. No. It is the filing of the complaint with the investigating
197293, 21 Apr. 2014) prosecutor that starts the preliminary investigation
process. (Riano, 2019)

Criminal Procedure
Documents accompanying the complaint apply in case the respondent cannot be subpoenaed.
(Sec. 3(d), Rule 112, ROC, as amended)
1. The affidavits of the complainant;
2. The affidavits of his witnesses; and Filing of motion to dismiss during preliminary
3. Other supporting documents that would investigation
establish probable cause. (Sec. 3(a), Rule 112,
ROC, as amended) GR: In preliminary investigation, a motion to
dismiss is not an accepted pleading for it merely
NOTE: The affidavits of the complainant shall be alleges the innocence of the respondent without
subscribed and sworn to before: rebutting or repudiating the evidence of the
complainant.
1. Any prosecutor;
2. Any government official authorized to XPN: When it contains countervailing evidence or
administer oaths; or defenses and evidence which rebuts or repudiates
3. In the absence or unavailability of the above the charges; in which case it will be treated as a
mentioned, a notary public. counter-affidavit.
The officer or notary public before whom the NOTE: If one files a motion to dismiss and he only
affidavits were subscribed and sworn to must asserts that the case should be dismissed, then the
certify that he personally examined the affiants and motion to dismiss is a mere scrap of paper. If the
that he is satisfied that they voluntarily executed respondent does not later on submit a counter-
and understood their affidavits. (Sec. 3(a), Rule 112, affidavit, it will constitute a waiver on his part to file
ROC, as amended) a counter-affidavit.
Duty of the Investigating Officer Clarificatory Hearing
From the filing of the complaint, the investigating Clarificatory hearing is not mandatory. A hearing
officer has 10 days within which to decide on which may be set by the investigating officer only when
of the following options to take: there are facts and issues to be clarified either from
a party or a witness, which shall be conducted
1. To dismiss the complaint if he finds no ground within 10 days from the submission of the counter-
to conduct the investigation; or affidavit, other affidavits and documents filed by the
2. To issue a subpoena in case he finds the need to respondent.
continue with the investigation, in which case
the subpoena shall be accompanied with the NOTE: A waiver, whether express or implied, must
complaint and its supporting affidavits and be made in clear and unequivocal manner. Mere
documents. (Sec. 3(b), Rule 112, ROC, as failure of the accused and his counsel to appear
amended) before the prosecutor for the clarificatory hearing
or when summoned when such right was vigorously
NOTE: Within 10 days from receipt of subpoena, the invoked at the start of the proceeding, is not a
respondent is required to submit his counter- waiver to the right to preliminary investigation.
affidavit, the affidavits of his witnesses and other (Larranga v. CA, G.R. No. 130644, 13 Mar. 1998)
supporting documents relied upon for his defense.
(Sec. 3(c), Rule 112, ROC, as amended) NOTE: The parties do not have the right to examine
or cross-examine each other or the witnesses. If
Despite the subpoena, if the respondent does not they have questions to ask, they shall submit the
submit his counter-affidavit within the ten-day questions to the investigating officer who shall ask
period granted him, the investigating officer shall the questions. (Sec. 3(e), Rule 112, ROC, as amended)
resolve the complaint based on the evidence
presented by the complainant. The same rule shall

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Records supporting the Information or 4. That he was given an opportunity to submit

Complaint controverting evidence. (Sec. 4, Rule 112, ROC,
as amended)
An information or complaint filed in court shall be
supported by the following: Within 5 days from the issuance of his resolution,
the investigating prosecutor shall forward the
1. Affidavits and counter-affidavits of the parties record of the case to the provincial or city
and their witnesses; and prosecutor or chief state prosecutor, or to the
2. Other supporting evidence and the resolution Ombudsman or his deputy by the Sandiganbayan in
on the case. (Sec. 7(a), Rule 112, ROC, as the exercise of its original jurisdiction. They shall act
amended) on the resolution within 10 days from their receipt
thereof and shall immediately inform the parties of
Record of the preliminary investigation such action. (Sec. 4, Rule 112, ROC, as amended)
GR: Record of the preliminary investigation shall NOTE: The resolution of the investigating
not form part of the case. prosecutor is merely recommendatory.
XPNs: No complaint or information may be filed or

1. When the court considers it necessary in the dismissed by an investigating prosecutor without
resolution of the case or any incident therein; or the prior written authority or approval of the
2. When it is introduced as evidence in the case by provincial or city prosecutor or chief state
the requesting party. (Sec. 7(b), Rule 112) prosecutor or the Ombudsman or his deputy. (Sec. 4,
Resolution of the Investigating Prosecutor
Q: Sometime in 2006, based on an alleged
Within 10 days from the termination of the finding of the Commission on Audit of
investigation, the investigating prosecutor shall overpricing and irregularities in the
determine whether or not there is sufficient ground procurement process, the Ombudsman
to hold the respondent for trial. (Sec. 3(f), Rule 112, launched Task Force Abono (TFA) to specifically
ROC, as amended) conduct a fact-finding investigation into the
purported "fertilizer fund scam." A Complaint
Afterwards, if the investigating officer finds cause to dated December 27, 2012, was thereafter filed
hold the respondent for trial, he shall prepare the by the TFA on June 21, 2013 against Perez,
resolution and information. Otherwise, he shall Catamco and the other public officials involved
recommend the dismissal of the complaint. (Sec. 4, in the transaction. After more than two (2)
Rule 112, ROC, as amended) years, or on July 17, 2017, the Ombudsman
issued its Resolution finding probable cause to
The information shall contain a certification by the indict Perez, Catamco and their co-respondents,
investigating officer under oath in which he shall including Mayor Rama, for one (1) count of
certify the following: violation of Section 3(e) of Republic Act (R.A.)
No. 3019 and two (2) counts of Malversation
1. That he, or as shown by the record, an under Article 217 of the Revised Penal Code
authorized officer, has personally examined the (RPC). The corresponding information were
complainant and his witnesses; filed before the Sandiganbayan. Before
2. That there is reasonable ground to believe that arraignment, Catamco and Perez each moved for
a crime has been committed and that the the dismissal of the case against them claiming
accused is probably guilty thereof; that the Ombudsman's inordinate delay of more
3. That the accused was informed of the complaint than twelve (12) years, from the conduct of its
and of the evidence submitted against him; and investigation in 2006 until the filing of the
Information in court, violated their

Criminal Procedure
constitutional right to speedy disposition of Effect when there is no prior written authority
cases. Is the contention of Catamco and Perez or approval of the provincial, or city prosecutor
correct? or the Ombudsman or his deputy
A: YES. In Cagang v. Sandiganbayan, the Court laid Complaints or information filed before the courts
down the guidelines in resolving issues concerning without the prior written authority or approval of
the right to speedy disposition of cases. The the foregoing authorized officers renders the same
Ombudsman failed to observe the period prescribed defective and, therefore, subject to quashal
under its rules. pursuant to Section 3(d), Rule 117 of the Revised
Rules on Criminal Procedure. (Quisay v. People, G.R.
From the date the last counter-affidavit was filed, No. 216920, 13 Jan. 2016)
the case remained stagnant for two (2) years and
two (2) months, until the investigating officer issued The filing of an Information by an officer without the
a Resolution, on July 17, 2017, finding probable requisite authority to file the same constitutes a
cause against petitioners and their co-respondents. jurisdictional infirmity which cannot be cured by
silence, waiver, acquiescence, or even by express
Moreover, to justify the delay in the preliminary consent. Hence, such ground may be raised at any
investigation, the Ombudsman merely claimed that stage of the proceedings. (Ibid.)
it needed time to meticulously evaluate and review
numerous records and relied heavily on this Court's Q: The Office of the City Prosecutor issued a
recognition in a previous case of the steady stream Resolution finding probable cause against the
of cases handled by the Ombudsman. However, petitioner for the violation of R.A. No. 7610.
while this Court has indeed recognized the reality Later on, an Information was filed before the
and inevitability of institutional delay, it does not, by RTC charging the petitioner of the said crime.
itself, justify the Ombudsman's failure to comply The Resolution was penned by an Assistant City
with the periods provided under the rules. No less Prosecutor approved by a Senior Assistant City
than the Constitution mandates the Ombudsman to Prosecutor. The Information was penned by ACP
act promptly on complaints filed before it, which De La Cruz, but without approval from any
duty was further reinforced by R.A. No. 6670 or higher authority. However, there was a
"The Ombudsman Act of 1989," to promote efficient Certification claiming that ACP De La Cruz has
government service to the people. Thus, absent any prior written authority or approval from the
proof of how the steady stream of cases or heavy City Prosecutor in filing the said Information.
workload affected the resolution of a case, the The petitioner moved for the quashal of the
Ombudsman cannot repeatedly hide behind this Information against her on the ground of lack of
generic excuse. authority of the person who filed the same
before the RTC. The RTC denied the motion to
Verily, by simply following the guidelines of Cagang, quash for lack of merit. Is the RTC correct in
the Court is left with no choice but to consider the denying the motion to quash for lack of merit?
prosecution's failure to prove sufficient justification
for the delay. And, in view of petitioners’ timely A: NO. Section 4, Rule 112 of the Revised Rules on
invocation of their right to speedy disposition of Criminal Procedure states that the filing of a
cases, it is quite evident that the Sandiganbayan complaint or information requires a prior written
committed grave abuse of discretion in denying the authority or approval of the named officers therein
motions to dismiss the case. (Catamco v. before a complaint or information may be filed
Sandiganbayan Sixth Division, et. al, GR. Nos. 243560- before the courts. As a general rule, complaints or
62 & 243261-63, 28 July 2020, J. Caguioa) informations filed before the courts without the
prior written authority or approval of the foregoing
authorized officers renders the same defective and,
therefore, subject to quashal pursuant to Section 3
(d), Rule 117 of the same Rules. Thus, the Resolution

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finding probable cause to indict petitioner of the court on the basis of the finding of probable cause in
crime charged, was validly made as it bore the the assailed decision.
approval of one of the designated review
prosecutors for OCP-Makati, SACP Hirang, as The decision of the prosecutor may be reviewed by
evidenced by his signature therein. However, the the courts when he acts with grave abuse of
same could not be said of the Information filed discretion amounting to lack of jurisdiction.
before the RTC, as there was no showing that it was (Herrera, 2007)
approved by either the City Prosecutor of Makati or
any of the OCP-Makati’s division chiefs or review Q: May a prosecutor be compelled by mandamus
prosecutors. (Quisay v. People, G.R. No. 216920, 13 to file a complaint regarding a complaint filed
Jan. 2016) which he previously dismissed for lack of merit
after preliminary investigation? (1999 BAR)
Different findings between the investigating
prosecutor and superior prosecutor A: NO. This is because the determination of
probable cause is within the discretion of the
When the investigating prosecutor recommends the prosecutor. The remedy is an appeal to the
dismissal of the complaint, but his findings are Secretary of Justice.
reversed by the “Superior” Prosecutor or
Ombudsman on the ground that probable cause Reversal or modification of the Resolution of the
exists, the “superior” prosecutor or Ombudsman Provincial or City Prosecutor
may, by himself, file the information against the
respondent, or direct another assistant prosecutor The Secretary of Justice may motu proprio reverse
or state prosecutor to do so without conducting or modify the resolution of provincial or city
another preliminary investigation. (Sec. 4, Rule 112, prosecutor or chief state prosecutor. The Secretary
ROC, as amended) of Justice may review resolutions of his
subordinates in criminal cases despite the
REVIEW information being filed in court. (Community Rural
Bank of Guimba v. Talavera, A.M. No. RTJ-05-1909, 06
Remedy of the aggrieved party from the Apr. 2005)
resolution of the Investigating Prosecutor as
approved by his superior The Secretary of Justice exercises the power of
direct control and supervision over prosecutors,
The aggrieved party is not precluded from filing a and may thus affirm, nullify, reverse or modify their
motion for reconsideration from receipt of the rulings. In reviewing resolutions of state
assailed resolution. Only one motion for prosecutors, the Secretary of Justice is not
reconsideration shall be allowed. (Sec. 3, 2000 NPS precluded from considering errors, although
Rule on Appeal, DOJ Department Circular No. 70) unassigned, for the purpose of determining whether
there is probable cause for filing cases in court.
An aggrieved party may appeal by filing a verified
petition for review with the Secretary of Justice and NOTE: If the Secretary of Justice reverses or
by furnishing copies thereof to the adverse party modifies the resolution of the provincial or city
and prosecution office issuing the appealed prosecutor or chief state prosecutor, he shall direct
resolution. The appeal shall be taken within 15 days the prosecutor concerned either to file the
from receipt of the resolution or of the denial of the corresponding information without conducting
motion for reconsideration or reinvestigation if one another preliminary investigation, or to dismiss or
has been filed within 15 days from receipt of the move for dismissal of the complaint or information
assailed resolution. Only one motion for with notice to the parties. (Sec. 4, Rule 112, ROC, as
reconsideration shall be allowed. Unless the amended)
Secretary directs otherwise, the appeal shall not
stay the filing of the corresponding information in

Criminal Procedure
Once a complaint or information is filed in Court any 2. New and material issues are raised which were
disposition of the case as its dismissal or the not previously presented before the
conviction or acquittal of the accused rests in the Department of Justice and were not ruled upon;
sound discretion of the Court. Although the fiscal 3. The prescription of the offense is not due to
retains the direction and control of the prosecution lapse within six (6) months from notice of the
of criminal cases even while the case is already in questioned resolution/order/decision; and
Court, he cannot impose his opinion on the trial 4. The appeal or petition for review is filed within
court. The Court is the best and sole judge on what thirty (30) days from notice.
to do with the case before it. The determination of
the case is within its exclusive jurisdiction and Henceforth, if an appeal or petition for review does
competence. A motion to dismiss the case filed by not clearly fall within the jurisdiction of the Office of
the fiscal should be addressed to the Court who has the President, as set forth in the immediately
the option to grant or deny the same. It does not preceding paragraph, it shall be dismissed outright
matter if this is done before or after the arraignment and no order shall be issued requiring the payment
of the accused or that the motion was filed after a of the appeal fee, the submission of appeal
reinvestigation or upon instructions of the brief/memorandum or the elevation of the records
Secretary of Justice who reviewed the records of the to the Office of the President from the Department
investigation. (Crespo v. Mogul, G.R. No. L-53373, 30 of Justice.
June 1987)
Remedy of an aggrieved party against the
Remedy of an aggrieved party against a Resolution of the Ombudsman
Resolution of the Secretary of Justice
The resolution of the Ombudsman in administrative
The party aggrieved by the Secretary of Justice may cases may be subject of petition for review via Rule
file a Motion for Reconsideration within a non- 43 before the CA (Sec. 7, Rule III of the Rules of
extendible period of 10 days from receipt of the Procedure of the Office of the Ombudsman) or a
resolution on appeal. special civil action for certiorari via Rule 65 before
the SC in criminal cases. (Mendoza-Arce v.
The resolution of the Secretary of Justice is Ombudsman, G.R. No. 149148, 05 Apr. 2002)
appealable administratively before the Office of the
President, and the decision of the latter may be NOTE: Consistent with its independence as
appealed before the CA pursuant to Rule 43. (De protector of the people and as prosecutor to ensure
Ocampo v. Secretary of Justice, G.R. No. 147932, 25 accountability of public officers, the Ombudsman is
Jan. 2006) not and should not be limited in its review by the
action or inaction of complainants. On the other
However, if there is grave abuse of discretion hand, it is clear from Section 15 of R.A. No. 6770 that
resulting to lack or excess of jurisdiction, a petition the Ombudsman may motu proprio conduct a
for certiorari under Rule 65 may be filed. (Ching v. reinvestigation to assure that the guilty do not go
Secretary of Justice, G.R. No. 164317, 06 Feb. 2006) unpunished. (Roxas v. Vasquez, G.R. No. 114944, 19
June 2001) The Ombudsman is not precluded from
NOTE: Memorandum Circular No. 58 dated 30 Jan. ordering another review of a complaint, for he or
1993 provides that appeals from or petition for she may revoke, repeal or abrogate the acts or
review of decisions/orders/resolutions of the previous rulings of a predecessor in office. (Alvarez
Secretary of Justice on preliminary investigations of v. People, G.R. No. 192591, 29 June 2011)
criminal cases are entertained by the Office of the
President under the following jurisdictional facts:
1. The offense involved is punishable by reclusion

perpetua to death;

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Effect of the filing of a Petition for Review before should be held for trial. (Sec. 1, Rule 112, ROC, as
the DOJ if the Information was already filed in amended)
court
It is merely inquisitorial and a means of determining
Should the information be already filed in court but the persons who may be reasonably charged with a
the accused filed a petition for review of the findings crime. (Herrera, 2007) It is not, therefore, a trial and
of the prosecutors with the DOJ, the court is bound so does not involve the examination of witnesses by
to suspend the arraignment of the accused for a way of direct or cross-examinations.
period not exceeding 60 days. (Sec. 11, Rule 116,
ROC, as amended) Its purpose is not to declare the respondent guilty
beyond reasonable doubt, but only to determine
NOTE: The suspension shall be made upon motion first, whether or not a crime has been committed
by the proper party. (Ibid.) and second, whether or not the respondent is
“probably guilty” of the crime. The question to be
Q: Does the SC and CA have the power to review answered in a preliminary investigation is not: "Is
the findings of prosecutors in preliminary the respondent guilty or is he innocent?” More
investigation? accurately, the question sought to be answered is:
“Is the respondent probably guilty and therefore,
A: YES. The SC and CA have the power to review the should go to trial?” (Riano, 2019; Ong v.
findings of prosecutors in preliminary Sandiganbayan, G.R. No. 126858, 16 Sep. 2005)
investigations. Courts should never shirk from
exercising their power, when the circumstances NOTE: It is not part of the trial of the criminal action
warrant, to determine whether the prosecutor’s in court. Nor is its record part of the records of the
findings are supported by the facts, or by the law. In case in the RTC. The dismissal of the case by the
so doing, courts do not act as prosecutors but as investigator will not bar the filing of another
organs of the judiciary, exercising their mandate complaint for the same offense, but if re-filed, the
under the Constitution, relevant statutes, and accused is entitled to another preliminary
remedial rules to settle cases and controversies. The investigation. (US v. Marfori, G.R. No. 10905, 09 Dec.
exercise of this Court’s review power ensures that, 1916)
on the one hand, probable criminals are prosecuted,
and, on the other hand, the innocent are spared Specific Purposes of Preliminary Investigation
from baseless prosecution. (Social Security System v.
DOJ, G.R. No. 158131, 08 Aug. 2007) It is established by jurisprudence that the following
are specific purposes of preliminary investigation:
NOTE: Even the RTCs can also make its own
determination, upon proper motion, whether 1. To inquire concerning the commission of a
probable cause exists to hold the accused for trial. crime and the connection of the accused with it,
(Ladlad v. Velasco, G.R. Nos. 172070-72, 01 June in order that he may be informed of the nature
2007) and character of the crime charged against him,
and if there is probable cause for believing him
2. RULE 112 guilty, that the state shall take the necessary
steps to bring him to trial;
NATURE OF RIGHT
2. To preserve the evidence and keep the
Preliminary Investigation witnesses within the control of the state; and
It is an inquiry or proceeding to determine whether 3. To determine the amount of bail, if the offense
there is sufficient ground to engender a well- is bailable; (Callo-Claridad v. Esteban, G.R. No.
founded belief that a crime has been committed and 191567, 20 Mar. 2013)
the respondent is probably guilty thereof and

Criminal Procedure
Right to a Preliminary Investigation When preliminary investigation is required
The holding of a preliminary investigation is not GR: Before the filing of a complaint or information
required by the Constitution. The right thereto is of for an offense where the penalty prescribed by law
a statutory character and may be invoked only when is imprisonment of at least 4 years, 2 months and 1
specifically created by statute. (Marinas v. Siochi, day without regard to the imposable fine. (Sec. 1,
G.R. No. L-25707, 14 May 1981) Rule 112, ROC, as amended)
While that right is statutory rather than XPNs:

constitutional in its fundament, since it has in fact
been established by statute, it is a component part 1. Where an information or complaint is filed
of due process in criminal justice. The right to have pursuant to Sec. 7, Rule 112 of the Rules of
a preliminary investigation conducted before being Court, i.e., the complaint or information is filed
bound over to trial for a criminal offense and hence directly in court (Ibid.); or
formally at risk of incarceration or some other 2. For cases requiring preliminary investigation,
penalty, is not a mere formal or technical right; it is when a person is lawfully arrested without a
a substantive right. The accused in a criminal trial is warrant provided that inquest was made in
inevitably exposed to prolonged anxiety, accordance with Rule 112. (Sec. 6, Rule 112,
aggravation, humiliation, not to speak of expense; ROC, as amended)
the right to an opportunity to avoid a process
painful to anyone save, perhaps, to hardened Rights of the respondent in a preliminary
criminals, is a valuable right. To deny petitioner's investigation
claim to a preliminary investigation would be to
deprive him the full measure of his right to due Preliminary investigation is not part of trial and is
process. (Go v. Court of Appeals, G.R. No. 101837 11 conducted only to establish whether probable cause
Feb. 1992) exists. Consequently, it is not subject to the same
due process requirements that must be present
Waiver of the right to preliminary investigation during trial. Thus, a person's rights during
preliminary investigation are limited to those
It shall be deemed waived by: provided by procedural law. (Reyes v. Office of the
Ombudsman, G.R. No. 208243, 05 June 2017)
1. Express waiver or by silence (Herrera, 2007);
2. Failure to invoke it during arraignment (People 1. To examine the evidence submitted by the
v. De Asis, G.R. No. 105581, 07 Dec. 1993); complainant at his own expense;
3. Consenting to be arraigned and entering a plea
of not guilty without invoking the right to NOTE: Object evidence need not to be
preliminary investigation (People v. Bulosan, furnished, but is available for examination,
G.R. No. 58404, 15 Apr. 1988); or copying or photographing at the expense of the
4. Failure to request for it within 5 days from the requesting party. (Sec. 3(b), Rule 112, ROC)
time he learns of the filing of the complaint or
information, in those instances where the While a respondent under preliminary
accused is lawfully arrested without a warrant. investigation has the right to examine the
(Sec. 6, Rule 112, ROC, as amended) evidence submitted by the complainant, he or
she does not have a similar right over the
NOTE: The waiver, whether express or implied, evidence submitted by his or her co-
must be in a clear and unequivocal manner. respondents. (Reyes v. Office of the Ombudsman,
(Herrera, 2007) Ibid.)
2. To submit a counter affidavit (Sec. 3(c), Rule

112, ROC, as amended); and

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NOTE: The prosecutor is not mandated to WHO MAY CONDUCT DETERMINATION OF

require the submission of counter-affidavits. EXISTENCE OF PROBABLE CAUSE
Probable cause may then be determined on the
basis alone of the affidavits and supporting Probable cause in preliminary investigation
documents of the complainant, without
infringing on the constitutional rights of the It is the existence of such facts and circumstances as
petitioners. (Borlongan, Jr. v. Pena, G.R. No. would excite belief in a reasonable mind, acting on
143591, 23 Nov. 2007) the facts within the knowledge of the prosecutor,
that the person charged was prosecuted. A finding
3. To be present during the clarificatory hearing. of probable cause merely binds over the suspect to
(Sec. 3(e), Rule 112, ROC, as amended); stand trial. It is not a pronouncement of guilt. (Sps.
Balangauan v. CA, G.R. No. 174350, 13 Aug. 2008)
NOTE: While the parties can be present at the
hearing, they are without the right to examine NOTE: The evidence needed is not based on clear
or cross-examine. They may, however, submit and convincing evidence of guilt, neither on
to the investigating officer questions which may evidence establishing guilt beyond reasonable
be asked to the party or witness concerned. doubt, and definitely not on evidence establishing
absolute certainty of guilt. It needs only to rest on
PURPOSES OF PRELIMINARY INVESTIGATION evidence showing that more likely than not a crime
has been committed by the accused. (People vs.
1. For the investigating prosecutor to determine if Borje, G.R. No. 170046, 10 Dec. 2014)
the crime has been committed;
Instances when probable cause needs to be
2. To inquire concerning the commission of a established
crime and the connection of the accused with it,
in order that he may be informed of the nature It is not only in preliminary investigation that
and character of the crime charged against him, probable cause needs to be determined. There are
and if there is probable cause for believing him other instances provided under the Rules where
guilty, that the state shall take the necessary probable cause needs to be established:
steps to bring him to trial; (Callo-Claridad v.
Esteban, G.R. No. 191567, 20 Mar. 2013) 1. When issuing a warrant of arrest or a
commitment order (Secs. 5 and 8, Rule 112, ROC,
3. To protect the accused from inconvenience, as amended);
expense and burden of defending himself in a 2. A peace officer or a private person making a
formal trial unless probability of his guilt is first warrantless arrest when an offense has just
ascertained by a competent officer; been committed, and he has probable cause to
believe based on personal knowledge of facts or
4. To secure the innocent against hasty, malicious, circumstances that the person to be arrested
and oppressive prosecution and to protect him has committed it (Sec. 5(b), Rule 113, ROC, as
from an open and public accusation of a crime amended); and
and anxiety of a public trial; 3. To determine whether a search warrant shall be
issued. (Sec. 4, Rule 126, ROC, as amended)
5. To preserve the evidence and keep the
witnesses within the control of the state; (Ibid.) Persons authorized to conduct a preliminary
investigation
6. To protect the State from having to conduct
useless and expensive trial; and 1. Provincial or City prosecutors and their
assistants; (Sec. 2(a), Rule 112, ROC, as
7. To determine the amount of bail, if the offense amended)
is bailable. (Herrera, 2007)

Criminal Procedure
2. National and Regional State Prosecutors; (Sec. prosecute Sandiganbayan cases. (Ledesma v. CA, G.R.
2(b), Rule 112, ROC, as amended) No. 161629, 29 July 2005)
3. Other officers as may be authorized by law, such
as: The Ombudsman is authorized to take over at any
stage, from any investigatory agency of the
a. Ombudsman - for any act or omission of government, the investigation of such cases. (Sec.
any public officers or employees which 15, R.A. No. 6770)
appear to be illegal, unjust, improper or
inefficient which is cognizable by the NOTE: The power to investigate and to prosecute
Sandiganbayan; (R.A. No. 6770); granted to the Ombudsman is plenary and
b. COMELEC - for all election offenses unqualified. It pertains to any act or omission of any
punishable by Omnibus Election Code; public officer or employee when such act or
(Sec. 265, Omnibus Election Code) omission appears to be illegal, unjust, improper or
c. PCGG, with the assistance of the OSG – for inefficient. The law does not make a distinction
ill-gotten wealth cases of former President between cases cognizable by the Sandiganbayan
Marcos, his relatives, and associates; (E.O. and those cognizable by the regular courts. (Office of
No. 14) the Ombudsman v. Breva, G.R. No. 145938, 10 Feb.
2006)
d. Other government agencies, empowered to
investigate, file and prosecute cases As an independent constitutional body, the Office of
investigated by it. the Ombudsman is beholden to no one, acts as the
champion of the people and is the preserver of the
NOTE: Their authority to conduct preliminary integrity of the public service. Thus, it has the sole
investigation shall include all crimes cognizable by power to determine whether there is probable
the proper court in their respective territorial cause to warrant the filing of a criminal case against
jurisdiction. (Sec. 2, Rule 112, ROC, as amended) an accused. This function is executive in nature.
(Dichaves v. Ombudsman, G.R. No. 206310, 07 Dec.
Judges of first level courts are no longer authorized 2016)
to conduct preliminary investigation. (A.M. No. 05-8-
26-SC, effective 03 Oct. 2005) Generally, the Supreme Court will not interfere with
the Office of the Ombudsman's determination of
Court interference in the conduct of preliminary probable cause, unless there is a clear and
investigation convincing showing of grave abuse of discretion.
(Binay v. Office of the Ombudsman, G.R. Nos. 213957-
GR: The courts cannot interfere in the conduct of 58, 07 Aug. 2019)
preliminary investigations, leaving the
investigatory officers sufficient discretion to NOTE: This, however, does not include
determine probable cause. administrative cases of court personnel because the
1987 Constitution vests in the SC administrative
XPN: When the acts of the officer are without or in supervision over all courts and court personnel.
excess of authority resulting from a grave abuse of
discretion. (Sps. Balangauan v. CA, G.R. No. 174350, Preliminary investigation in election cases
13 Aug. 2008)
The Commission on Elections is vested the power to
Extent of authority of the Ombudsman in the conduct preliminary investigations; it may deputize
conduct of preliminary investigation other prosecuting arms of the government to
conduct preliminary investigation and prosecute
The Ombudsman has primary authority to offenses. (People v. Basilla, G.R. Nos. 83938-40, 06
investigate and exclusive authority to file and Nov. 1989)

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The Commission on Elections has exclusive power 2017)

to conduct preliminary investigation of all election
offenses punishable under the election laws and to But the option to order the prosecutor to present
prosecute the same, except as may otherwise be additional evidence is not mandatory. The court’s
provided by law. The Commission on Elections first option under the above is for it to "immediately
exercises constitutional authority to investigate dismiss the case if the evidence on record clearly
and, where appropriate, prosecute cases for fails to establish probable cause." That is the
violation of election laws, including acts or situation here: the evidence on record clearly fails
omissions constituting election frauds, offenses and to establish probable cause against the respondents.
malpractices. (Albaña v. Belo, G.R. No. 158734, 02 It is only "in case of doubt on the existence of
Oct. 2009) probable cause" that the judge may order the
prosecutor to present additional evidence within
WHEN WARRANT OF ARREST MAY ISSUE five days from notice. (People v. Dela Torre-Yadao,
G.R. Nos. 162144-54, 13 Nov. 2012)
Determination of probable cause
NOTE: It bears stressing that the judge is required
Within 10 days from the filing of the complaint or to personally evaluate the resolution of the
information, the judge shall personally evaluate the prosecutor and its supporting evidence. He may
resolution of the prosecutor. In conducting the immediately dismiss the case if the evidence on
evaluation of the resolution, the judge shall look into record clearly fails to establish probable cause. (Ong
supporting evidence. (Sec. 5(a), Rule 112, ROC, as v. Genio, G.R. No. 182336, 23 Dec. 2009)
amended)
Q: The NBI Director requested the prosecution
Options of the judge upon the filing of of Janet Lim Napoles for serious illegal
Information detention. The assistant state prosecutor
recommended the dismissal of the complaint.
1. Dismiss the case if the evidence on record However, in a Review Resolution, the senior
clearly failed to establish probable cause; deputy state prosecutor reversed the same and
2. If he or she finds probable cause, issue a recommended the filing of the information. An
warrant of arrest or issue a commitment order Information for serious illegal detention was
if the accused has already been arrested filed before the RTC and Judge Alameda issued a
pursuant to a warrant of arrest or lawfully warrant for her arrest. Aggrieved, Napoles filed
arrested without warrant; or before the CA a Petition for Certiorari imputing
3. In case of doubt as to the existence of probable grave abuse of discretion on the part of the
cause, order the prosecutor to present senior deputy state prosecutor. She contended
additional evidence within 5 days from notice, that there was no probable cause to charge her
the issue to be resolved by the court within 30 with serious illegal detention, and that the RTC
days from the filing of the information. Judge Alameda erred in issuing the arrest. Is she
correct?
Upon filing of an information in court, trial court
judges must determine the existence or non- A: NO. Even before the filing of the Petition
existence of probable cause based on their personal questioning the Review Resolution, an Information
evaluation of the prosecutor's report and its for serious illegal detention has been filed against
supporting documents. They may dismiss the case, Napoles. Therefore, with the filing of the
issue an arrest warrant, or require the submission Information before the trial court, this Petition has
of additional evidence. However, they cannot become moot and academic. The trial court has then
remand the case for another conduct of preliminary acquired exclusive jurisdiction over the case, and
investigation on the ground that the earlier the determination of the accused’s guilt or
preliminary investigation was improperly innocence rests within the sole and sound
conducted. (Maza v. Turla, G.R. NO. 187094, 15 Feb. discretion of the trial court.

Criminal Procedure
That Judge Alameda issued the arrest warrant CASES NOT REQUIRING A PRELIMINARY
within the day he received the records of the case INVESTIGATION
from the prosecutor does not mean that the warrant
was hastily issued. Judge Alameda was under no Cases not requiring a preliminary investigation
obligation to review the entire case record as
Napoles insists. All that is required is that a judge A preliminary investigation shall not be required
personally evaluates the evidence and decides, under the following:
independent of the finding of the prosecutor, that
probable cause exists so as to justify the issuance of 1. When the penalty prescribed by law for the
an arrest warrant. (Napoles v. Hon. Sec. De Lima, G.R. offense involves an imprisonment of less than 4
No. 213529, 13 July 2016) years, 2 months and 1 day (Sec. 8(a), Rule 112,
Complaint filed pursuant to a lawful warrantless 2. If a person is arrested lawfully without a
arrest warrant involving an offense which requires
preliminary investigation, an information or
The court shall issue a commitment order instead complaint may be filed against him without
of a warrant of arrest. In case the judge doubts the need for a preliminary investigation provided
existence of probable cause, the judge may order the an inquest has been conducted in accordance
prosecution to present additional evidence within 5 with existing rules. (Sec. 6, Rule 112, as amended
days from notice. The issue must be resolved by the by A.M. No. 05-08-26-SC, 30 Aug. 2005)
court within 30 days from the filing of the complaint
or information. (Sec. 5(a), Rule 122, Rules of Court, as Thus, if a person is arrested by a police officer
amended by A.M. No. 05-08-26-SC, 30 Aug. 2005) in flagrante delicto while robbing the victim
through violence or intimidation, the arrest is a
Instances when no warrant of arrest is lawful one and a preliminary investigation is
necessary not required even if the penalty for robbery is
more than 4 years, 2 months, and 1 day. (Riano,
1. If the accused is already under detention 2019)
pursuant to a warrant of arrest issued by the
Municipal Trial Court pursuant to its power to Furthermore, if he has been arrested in a place
conduct preliminary investigation; where an inquest prosecutor is available, an
2. If the accused is lawfully arrested without a inquest will be conducted instead of a
warrant; or preliminary investigation. In the absence or
unavailability of an inquest prosecutor, an
NOTE: If the offense by which the person was inquest may be dispensed with. The rule, hence,
arrested requires a preliminary investigation, allows the filing of the complaint directly with
an inquest proceeding shall be conducted. the proper court by the offended party or peace
officer on the basis of the affidavit of the
3. If the offense is penalized by fine only. (Sec. 5(c), offended party or arresting officer or person.
Rule 112, ROC, as amended) (Riano, 2019)
4. When there was no need for prior preliminary
investigation and the case is not governed by In cases where preliminary investigation is not
the Rules on Summary Procedure, the judge required, it may be instituted:
may issue summons instead of a warrant of
arrest, except when he fails to appear whenever 1. By filing the complaint directly with the
required; and prosecutor; or
5. When the case is subject to the Rules on
Summary Procedure, except when he fails to NOTE: The prosecutor shall act on the
appear whenever required. complaint based on the affidavits and other
supporting documents submitted by the

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complainant within 10 days from its filing. (Sec. 2. Where aside from the original accused, other
8(a), Rule 112, ROC, as amended) persons are charged under a new criminal
complaint for the same offense or necessarily
2. By filing the complaint or information with the included therein;
MTC. 3. If under a new criminal complaint, the original
charge has been upgraded; or
Instances when amendment of an information 4. If under a new criminal complaint, the criminal
does NOT warrant a new preliminary liability of the accused is upgraded from being
investigation an accessory to that of a principal. (Ciron v.
Gutierrez, G.R. Nos. 194339-41, 20 Apr. 2015)
1. Amendment to information is not substantial
(Villaflor v. Vivar, G.R. No. 134744, 16 Jan. 2001); REMEDIES OF ACCUSED IF THERE WAS NO
2. The court orders the filing of correct PRELIMINARY INVESTIGATION
information involving a cognate offense (Sy Y
Lim v. CA, G.R. No. L-37494, 30 Mar. 1982); and The accused must question the lack of preliminary
3. If the crime originally charged is related to the investigation before he enters his plea. The court
amended charge such that an inquiry into one shall resolve the matter as early as practicable but
would elicit substantially the same facts that an not later than the start of the trial.
inquiry to another would reveal. (Orquinaza v.
People, G.R. No. 165596, 15 Nov. 2005; Herrera, An application for or admission of the accused to
2007) bail does not bar him from raising such question.
(Sec. 26, Rule 114, ROC, as amended) Failure to
Instances when amendment of an information invoke the right before entering a plea will amount
warrants a new preliminary investigation to a waiver.
1. If the amendment of the information changes Remedies available to the accused if there was
the nature of the crime charged (Luciano v. no preliminary investigation conducted
Mariano, G.R. No. L-32950, 30 July 1971); or pursuant to a lawful warrantless arrest
2. When on its face the information is null and
void for lack of authority to file the same and 1. Before the complaint or information is filed, the
cannot be cured or revived by an amendment. person arrested may ask for a preliminary
(Cruz, Jr. v. Sandiganbayan, G.R. No. 94595, 26 investigation but he must sign a waiver of the
Feb. 1991) provisions of Art. 125 of the RPC, as amended,
in the presence of his counsel;
Instances when a NEW preliminary
investigation is required to accord the accused NOTE: Art. 125 of the RPC deals with the period
the right to submit counter-affidavits and of delay in the delivery of detained persons to
evidence the proper judicial authorities.
A new preliminary investigation is required in order Accused may file a petition for certiorari if
to accord the accused the right to submit counter- preliminary investigation is refused;
affidavits and evidence only in the following
instances: The waiver by the person lawfully arrested of
the provisions of Art. 125 of the RPC does not
1. Where the original witnesses of the prosecution preclude him from applying for bail;
or some of them may have recanted their
testimonies or may have died or may no longer 2. After the filing of the complaint or information
be available and new witnesses for the state in court without a preliminary investigation,
have emerged; the accused may, within 5 days from the time he
learns of its filing, ask for a preliminary

Criminal Procedure
investigation with the same right to adduce Q: The police officers arrived at the scene of the
evidence as provided in the Rule (Sec. 6, Rule crime less than one hour after the alleged
112, ROC, as amended); altercation and they saw Atty. Generoso badly
beaten. Atty. Generoso pointed to the
3. Refuse to enter a plea upon arraignment and petitioners as those who mauled him, which
object to further proceedings upon such prompted the police officers to “invite” the
ground; petitioners for investigation. Consequently, the
petitioners were indicted for attempted murder.
4. Raise lack of preliminary investigation as error The petitioners filed an Urgent Motion for
on appeal (US v. Banzuela, G.R. No. 10172, 01 Oct. Regular Preliminary Investigation on the
1915); or ground that they had not been lawfully arrested
as there was no valid warrantless arrest since
5. File for prohibition (Conde v. CFI, G.R. No. 21236, the police officers had no personal knowledge
01 Oct. 1923). that they were perpetrators of the crime. Were
the petitioners validly arrested without a
Absence of a preliminary investigation; effects warrant?
1. It does not become a ground for a motion to A: YES. The records show that soon after the report
quash the complaint or information as it does of the incident, SPO2 Javier was immediately
not impair the validity of the information or dispatched to render personal assistance to the
render it defective or affect the jurisdiction of victim. This alone negates the petitioners’ argument
the court (Sec. 3, Rule 117, ROC, as amended; that the police officers did not have personal
People v. Buluran, G.R. No. 113940, 15 Feb. knowledge that a crime had been committed.
2000); Personal knowledge of a crime just committed does
2. It does not affect the court’s jurisdiction but not require actual presence at the scene while the
merely the regularity of the proceedings crime was being committed; it is enough that
(People v. De Asis, G.R. No. 105581, 07 Dec. 1994); evidence of the recent commission of the crime is
3. It does not impair the validity of the patent and the police officer has probable cause to
information or render it defective; and believe based on personal knowledge of facts and
4. It justifies the release of the respondent or circumstances, that the person to be arrested has
nullifies the warrant of arrest against him. recently committed the crime. (Pestilos, et al. v.
(Larranaga v. CA, G.R. No. 130644, 13 Mar. 1998) Generoso and People, G.R. No. 182601, 10 Nov. 2014)
NOTE: If the accused raises the issue of lack of INQUEST

preliminary investigation before entering a plea, the
court, instead of dismissing the information, should Inquest Proceeding
remand the case to the prosecutor so that the
investigation may be conducted. (Ibid.) It is an informal and summary investigation
The right to preliminary investigation cannot be conducted by a public prosecutor in criminal cases
raised for the first time on appeal. (Pilapil v. involving persons arrested and detained without
Sandiganbayan, G.R. No. 101978, 07 Apr. 1993) the benefit of a warrant of arrest. It is informal and
summary and is issued by the court for the purpose
If lack of preliminary investigation is raised in a of determining whether or not said persons should
proceeding pending before the Sandiganbayan, the remain under custody and correspondingly be
proceeding will be held in abeyance and case should charged in court. (Sec. 1, DOJ Circular No. 61)
be remanded to the Office of the Ombudsman or the
Special Prosecutor to conduct the preliminary Duties of an inquest officer
investigation. (Ong v. Sandiganbayan, G.R. No.
126858, 16 Sept. 2005) The initial duty of the inquest officer is to determine
if the arrest of the detained person was valid and in

e

Remedial Law
accordance with Sec. 5(a) and (b) of Rule 113 of the Finding of probable cause
Rules of Court; should the inquest officer find that
the arrest was not made in accordance with the 1. If the inquest officer finds that probable
Rules, he shall: cause exists - he or she shall forthwith prepare
the corresponding complaint or information
1. Recommend the release of the person arrested with the recommendation that the same be filed
or detained; in court. (Sec. 13, Part II, Manual for
2. Note down the disposition on the referral Prosecutors)
document;
3. Prepare a brief memorandum indicating the 2. If the inquest officer finds no probable cause
reasons for the action taken; and – he or she shall recommend the release of the
4. Forward the same, together with the record of arrested or detained person. (Sec. 15, Part II,
the case, to the City or Provincial Prosecutor for Manual for Prosecutors)
appropriate action. (Sec. 9, DOJ Circular No. 61)
Matters included in a referral document
NOTE: Where the recommendation is approved by
the City or Provincial Prosecutor but the evidence 1. Affidavit of arrest;
on hand warrant the conduct of a regular 2. Investigation report;
preliminary investigation, the order of release shall 3. The statement of the complainant and
be served on the officer having custody of said witnesses; and
detainee and shall direct the said officer to serve 4. Other supporting evidence gathered by the
upon the detainee the subpoena or notice of police in the course of the latter's investigation
preliminary investigation, together with the copies of the criminal incident involving the arrested
of the charge sheet or complaint, affidavit or sworn or detained person.
statements of the complainant and his witnesses
and other supporting evidence. NOTE: The inquest officer shall, as far as
practicable, cause the affidavit of arrest and
Should it be found that the arrest was properly statements or affidavits of the complainant and the
effected, the officer shall: witnesses to be subscribed and sworn to before him
by the arresting officer and the affiants. (Sec. 3, Part
1. Ask the detained person if he desires to avail II, Manual for Prosecutors)
himself of a preliminary investigation; and
2. If he does, he shall be made to execute a waiver Preliminary investigation vs. Inquest
of the provision of Art. 125 of RPC with the proceeding
assistance of a lawyer. (Sec. 10, Part II, Manual
for Prosecutors) PRELIMINARY INQUEST
INVESTIGATION PROCEEDING
Person to conduct preliminary investigation To determine whether
Conducted to
the accused should
determine probable
The preliminary investigation may be conducted by remain under custody
cause.
the inquest officer himself or by any other assistant and be charged in court.
prosecutor to whom the case may be assigned by
the city or provincial prosecutor, which Instances when production of a detained person
investigation shall be terminated within 15 days before the inquest officer is dispensed with
from its inception. (Sec. 10, Part II, Manual for
Prosecutors) 1. If he is confined in a hospital;
2. If he is detained in a place under maximum
security;

Criminal Procedure
3. If production of the detained person will

involve security risks; or E. ARREST
4. If the presence of the detained person is not (RULE 113)
feasible by reason of age, health, sex and other
similar factors. (Sec. 6, Part II, Manual for
Prosecutors)
It is the taking of a person into custody in order that
he may be bound to answer for the commission of
Q: Leo was arrested without a warrant following
an offense. (Sec. 1, Rule 113, ROC, as amended)
the issuance by PGMA of PD 1017. On the eve of
his arrest, Leo was subjected to an inquest at the
Persons who are NOT subject to arrest
Quezon City Hall of Justice for Inciting to
Sedition (Art. 142, RPC) based on a speech he
1. A senator or member of the House of
allegedly gave during a rally. The inquest was
Representatives shall, in all offenses punishable
based on a joint affidavit of Leo’s arresting
by not more than 6 years of imprisonment, be
officers who claimed to have been present at the
privileged from arrest while Congress is in
rally. The inquest prosecutor filed the
session (Sec. 11, Art. VI, 1987 Constitution);
corresponding Information with the MeTC.
Several days after the first inquest, he was again
NOTE: The privilege of a senator or
subjected to a second inquest but this time for
congressman will not apply when the offense is:
rebellion allegedly committed based on the
letters of CIDG investigators claiming that Leo
a. Punishable by imprisonment of more than
was the leader/promoter of an alleged plot to
6 years even if Congress is in session
overthrow the Arroyo government. The panel of
(People v. Jalosjos, G.R. Nos. 132875-76, 03
prosecutors from the DOJ which conducted the
Feb. 2000); or
second inquest subsequently issued a resolution
b. If the offense is punishable by
finding probable cause to indict Leo as
imprisonment of not more than 6 years if
leader/promoter of alleged rebellion. The panel
Congress is not in session.
filed an Information with the RTC of Makati. The
court sustained the finding of probable cause
2. Under the generally accepted principles of
against Leo. Leo filed a Petition to set aside the
international law, sovereign and other chiefs of
orders finding probable cause and the denial of
state, ambassadors, ministers plenipotentiary,
the MR to enjoin his prosecution. Was the
ministers resident, and charges d’affaires are
second inquest valid?
immune from the criminal jurisdiction of the
country of their assignment and are therefore
A: NO. Inquest proceedings are proper only when
immune from arrest; and
the accused has been lawfully arrested without
warrant. Sec. 5, Rule 113 of the Revised Rules of
3. Duly accredited ambassadors, public ministers
Criminal Procedure provides the instances when
of a foreign country, their duly registered
such warrantless arrest may be effected.
domestics, subject to the principle of
reciprocity. (Secs. 4 and 7, R.A. No. 75)
The joint affidavit of Leo’s arresting officers states
that the officers arrested Leo, without a warrant, for
Arrest, How Made
Inciting to sedition, and not for rebellion. Thus, the
inquest prosecutor could only have conducted – as
1. By an actual restraint of a person to be arrested;
he did conduct – an inquest for Inciting to Sedition
or
and no other. Consequently, when another group of
2. By his submission to the custody of the person
prosecutors subjected Leo to a second inquest
making the arrest. (Sec. 2, Rule 113, ROC, as
proceeding for rebellion, they overstepped their
amended)
authority rendering the second inquest void.
(Beltran v. People, G.R. No. 175013, 01 June 2007)

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Remedial Law
NOTE: Arrest may be made on any day, at any time any other person of suitable age and
of the day or night. (Sec. 6, Rule 113, ROC, as discretion. (Sec 23, Rule 114, ROC, as
amended) amended)
The head of the office to which the warrant was Q: On his way home, a member of the Caloocan
delivered must cause it to be executed within 10 City police force witnessed a bus robbery in
days from its receipt, and the officer to whom it is Pasay City and effects the arrest of the suspect.
assigned must make a report to the judge who Can he bring the suspect to Caloocan City for
issued the warrant within 10 days from the booking since that is where he is stationed?
expiration of the period. If he fails to execute it, he Explain briefly. (2007 BAR)
should state the reason therefore. (Sec. 4, Rule 113,
ROC, as amended) A: NO. Under Sec. 3, Rule 113 of the Revised Rules
on Criminal Procedure, it shall be the duty of the
ARREST WITHOUT WARRANT, WHEN LAWFUL officer executing the warrant to arrest the accused
and to deliver him to the nearest police station or jail
Instances when warrant of arrest is NOT without unnecessary delay. This rule equally
necessary applies to situations of warrantless arrests. Here,
the arrest was made in Pasay City. Hence, the
1. Accused is already under detention; suspect should be brought to the nearest police
2. Complaint or information was filed pursuant to station in Pasay City for booking and not in Caloocan
a valid warrantless arrest; and City.
3. Complaint or information is for an offense
penalized by fine only. (Sec. 5(c), Rule 112, ROC, METHOD OF ARREST
as amended)
EXCEPTION TO THE
METHOD OF
Instances of a valid warrantless arrest RULE ON GIVING
ARREST
INFORMATION
1. In flagrante delicto arrest; Arrest by officer by virtue of a warrant
2. Doctrine of hot pursuit; (Sec. 7, Rule 113, ROC, as amended)
3. Escapee (Sec. 5, Rule 113, ROC, as amended); and The officer shall inform
4. Other lawful warrantless arrests: the person to be
arrested of (a) the
a. When a person previously and lawfully cause of the arrest; and 1. When the person
arrested, escapes or is rescued, any person (b) the fact that the to be arrested
may immediately pursue or retake him warrant has been flees;
without a warrant at any time and in any issued for his arrest. 2. When he forcibly
place within the Philippines (Sec 13, Rule resists before the
113, ROC, as amended); NOTE: The officer need officer has an
not have the warrant in opportunity to
b. When an accused released on bail his possession at the inform him; and
attempts to depart from the Philippines time of the arrest but 3. When the giving of
without permission of the court where the must show the same such information
case is pending (Sec 23, Rule 114, ROC, as after the arrest, if the will imperil the
amended); and person arrested so arrest.
requires. (Sec. 7, Rule
c. For the purpose of surrendering the 113, ROC, as amended)
accused, the bondsmen may arrest him or
upon written authority endorsed on a
certified copy of the undertaking, cause
him to be arrested by a police officer or

Criminal Procedure
It must also be noted held criminally liable 3. When the giving of

that warrant is not for illegal detention. such information will
jurisdictional. imperil the arrest.
The officer assigned to BY OFFICER WITH WARRANT

execute the warrant of
arrest has, after the Amount of force to be used in making an arrest
arrest of the accused,
the duty to deliver the GR: No violence or unnecessary force shall be used
person arrested to the in making an arrest. The person arrested shall not
nearest police station be subject to a greater restraint than is necessary for
or jail without his detention. (Sec. 2, Rule 113, ROC, as amended)
unnecessary delay.
(Sec. 3, Rule 113, ROC, as XPN: If necessary to secure and detain the offender,
amended) overcome his resistance, prevent his escape,
Arrest by officer without a warrant recapture him and protect himself from bodily
(Sec. 8, Rule 113, ROC, as amended) harm. (Albano, Remedial Law Reviewer, 2010,
1. When the person to hereinafter referred to as Albano, 2010; People v.
be arrested is Delima, G.R. No. 18660, 22 Dec. 1922)
engaged in the
commission of an NOTE: An officer may break into a building or
offense or is pursued enclosure to effect an arrest provided that:
The officer shall immediately after its
inform the person to commission; 1. The person to be arrested is or is reasonably
be arrested of his (a) 2. When he has escaped, believed to be in the said building;
authority and (b) the flees, or forcibly 2. The officer has announced his authority and
cause of the arrest resists before the purpose for entering therein; and
without a warrant officer has an 3. He has requested and been denied admittance.
opportunity to do so (Sec. 11, Rule 113, ROC, as amended)
inform him; and
3. When the giving of A lawful arrest may be made anywhere, even on a
such information will private property or in a house. This rule is
imperil the arrest. applicable both where the arrest is under a warrant,
Arrest by a private person and where there is a valid warrantless arrest.
The private person 1. When the person to Objects subject to confiscation from the person
shall inform the be arrested is arrested
person to be arrested engaged in the
of (a) the intention to commission of an 1. Objects subject of the offense or used or
arrest him and (b) the offense or is pursued intended to be used in the commission of the
cause of the arrest. immediately after its crime;
commission; 2. Objects which are fruits of the crime;
NOTE: The private 2. When he has escaped, 3. Those which might be used by the arrested
person must deliver flees, or forcibly person to commit violence or to escape; and
the arrested person resists before the 4. Dangerous weapons and those which may be
to the nearest police officer has an used as evidence in the case.
station or jail, opportunity to do so
otherwise, he may be inform him; and NOTE: Arrest must precede the search; the
process cannot be reversed. Nevertheless, a search

e

Remedial Law
substantially contemporaneous with an arrest can a warrantless arrest. There must be

precede the arrest at the outset of the search. independent circumstances perceivable by
the arresting officers suggesting that a
Q: Jose, Alberto and Romeo were charged with criminal offense is being committed to
murder. Upon filing of the information, the RTC comply with the exacting requirements of
judge issued the warrants of arrest. Learning of Rule 113, Section 5 of the Rules of Court. An
the issuance of the warrants, the three accused accused must perform some overt act
jointly filed a motion for reinvestigation and for within plain view of the police officers
the recall of the warrants of arrest. On the date indicating that she or "he has just
set for hearing of their motion, none of the committed, is actually committing, or is
accused showed up in the court for fear of being attempting to commit a crime. (Villasana v.
arrested. The RTC judge denied their motion People, G.R. No. 209078, 04 Sept. 2019)
because the RTC did not acquire jurisdiction
over the persons of the movants. Did the RTC 2. Hot pursuit arrest - When an offense has been
rule correctly? (2008 BAR) committed and he has probable cause to believe
based on personal knowledge of facts and
A: NO. The court acquired jurisdiction over the circumstances that the person to be arrested
person of the accused when they filed the aforesaid has committed it (Sec. 5(b), Rule 113, ROC, as
motion and invoked the court’s authority over the amended);
case, without raising the issue of jurisdiction over
their person. Their filing the motion is tantamount Elements of Hot pursuit arrest are:
to voluntary submission to the court’s jurisdiction
and contributes voluntary appearance. (Miranda v. a. An offense has been committed and there is
Tuliao, G.R. No. 158763, 31 Mar. 2006) close proximity between the arrest and the
time of commission of the crime (Pamaran,
BY OFFICER WITHOUT WARRANT (2017 BAR) 2007);
b. The offense has just been committed; and
GR: No peace officer or person has the power or c. Probable cause based on personal
authority to arrest anyone without a warrant except knowledge on the part of the person
in those cases expressly authorized by law. (Umil vs. making the arrest, of facts or circumstances
Ramos, G.R. No. 81567, 03 Oct. 1991) that the person/s to be arrested committed
it. (Herrera, 2007)
XPNs:
1. In flagrante delicto arrest - When, in his NOTE: There must be compliance with the
presence, the person to be arrested has element of immediacy between the time of the
committed, is actually committing, or is commission of the crime and the time of arrest.
attempting to commit an offense (Sec. 5(a), Rule (People v. Salvatiera, G.R. No. 104663, 24 July
113, ROC, as amended); 1997)
Elements of In flagrante delicto arrest are: Personal knowledge (2016 BAR)
a. The person arrested must execute an overt “Personal knowledge of the facts and circumstances
act indicating that he has just committed, is that the person to be arrested committed it" means
actually committing, or is attempting to personal knowledge not of the commission of the
commit a crime; and crime itself but of facts and circumstances which
b. Such overt act is done in the presence or would lead to the conclusion that the person to be
within the view of the arresting officer. arrested has probably committed the crime. Such
personal knowledge arises from reasonably worthy
NOTE: Reliable information provided by information in the arresting person’s possession
police assets alone is not sufficient to justify coupled with his own observation and fair

Criminal Procedure
inferences therefrom that the person arrested has the Supreme Court ruled that a warrantless arrest
probably committed the offense. (People v. Del was validly executed upon the accused three (3)
Rosario, G.R. No. 127755, 14 Apr. 1999) hours after the commission of the crime. In People v.
Tonog, Jr., G.R. No. 94533, 04 Feb. 1992, the Supreme
NOTE: Personal gathering of information is Court likewise upheld the valid warrantless arrest
different from personal knowledge. The rule which was executed on the same day as the
requires that the arrest immediately follows the commission of the crime. However, in People v. Del
commission of the offense. (People v. Manlulu, G.R. Rosario (365 Phil. 292, 14 Apr. 1999), the Supreme
No. 102140, 22 Apr. 1994) Court held that the warrantless arrest effected a day
after the commission of the crime is invalid. In Go v.
Q: Under Section 5, Rule 113, a warrantless Court of Appeals (G.R. No. 101837, 11 Feb. 1992), the
arrest is allowed when an offense has just been Supreme Court also declared invalid a warrantless
committed and the peace officer has probable arrest effected six (6) days after the commission of
cause to believe, based on his personal the crime.
knowledge of facts or circumstances, that the
person to be arrested has committed it. A Q: As Cicero was walking down a dark alley one
policeman approaches you for advice and asks midnight, he saw an "owner-type jeepney"
you how he will execute a warrantless arrest approaching him. Sensing that the occupants of
against a murderer who escaped after killing a the vehicle were up to no good, he darted into a
person. The policeman arrived two (2) hours corner and ran. The occupants of the vehicle −
after the killing and a certain Max was allegedly elements from the Western Police District −
the killer per information given by a witness. He gave chase and apprehended him. The police
asks you to clarify the following: How long after apprehended Cicero, frisked him and found a
the commission of the crime can he still execute sachet of 0.09 gram of shabu tucked in his waist
the warrantless arrest? (2016 BAR) and a Swiss knife in his secret pocket, and
detained him thereafter. Is the arrest and body
A: The arrest must be made within 24 hours after search legal? (2010 BAR)
the commission of the crime. Where the arrest took
place a day after the commission of the crime, it A: NO. The arrest and the body-search were not
cannot be said that an offense has just been legal. Cicero’s act of running does not show any
committed. (People v. Del Rosario, G.R. No. 127755, reasonable ground to believe that a crime has been
14 Apr. 1999) committed or is about to be committed for the police
officers to apprehend him and conduct body search.
ALTERNATIVE ANSWER: In executing a Hence, the arrest was illegal as it does not fall under
warrantless arrest under Section 5, Rule 113 of the any of the circumstances for a valid warrantless
Revised Rules on Criminal Procedure, the Supreme arrest provided in Section 5, Rule 113 of the Rules
Court held that the requirement that an offense has of Criminal Procedure.
just been committed means that there must be a
large measure of immediacy between the time the 3. Evasion of service of sentence by prisoner -
offense was committed and the time of the arrest. When the person to be arrested is a prisoner
(Pestilos v. Generoso, G.R. No. 182601, 10 Nov. 2014). who has escaped from a penal establishment or
If there was an appreciable lapse of time between place where he is serving final judgment or is
the arrest and the commission of the crime, a temporarily confined while his case is pending,
warrant of arrest must be secured. In any case, or has escaped while being transferred from
personal knowledge by the arresting officer is an one confinement to another (Sec. 5(c), Rule 113,
indispensable requirement to the validity of a valid ROC, as amended);
warrantless arrest.
4. Where a person who has been lawfully arrested
The exact period varies on a case-to-case basis. In escapes or is rescued (Sec. 13, Rule 113, ROC, as
People v. Gerente, G.R. Nos. 95847-48, 10 Mar. 1993), amended);

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Remedial Law
5. By the bondsman for the purpose of NOTE: The accused should be brought to the
surrendering the accused (Sec. 23, Rule 114, prosecutor for inquest proceedings wherein
ROC, as amended); existence of probable cause will be determined.
Then, the judge shall issue a commitment order
6. Where the accused out on bail attempts to leave (order issued by the judge when the person charged
the country without permission of the court with a crime is already arrested or detained) and
(Sec. 23, Rule 114, ROC, as amended); and not a warrant.
7. Buy-bust Operation - A buy-bust operation is a Q: Fred was arrested without a warrant. After
form of entrapment, in which the violator is preliminary investigation, an information was
caught in flagrante delicto and the police filed in court. He pleaded not guilty during
officers conducting the operation are not only arraignment. After trial on the merits, he was
authorized, but duty-bound, to apprehend the found guilty by the court. On appeal he claims
violator and to search him for anything that that judgment was void due to his illegal arrest.
may have been part of or used in the As Solicitor General, how would you refute said
commission of the crime. claim? (2000 BAR)
Obligation of the arresting officer after the A: Any objection to the illegality of the arrest of the
warrantless arrest accused without a warrant is deemed waived when
he pleaded not guilty at the arraignment without
The arresting officer must comply with the raising the question. It is too late to complain about
provisions of Art. 125 of the RPC, otherwise, he may a warrantless arrest after trial is commenced and
be held criminally liable for arbitrary detention completed and a judgment of conviction rendered
under Art. 124, RPC. Jurisdiction over the person against the accused. (People v. Cabiles, G.R. No.
arrested must be transferred to the judicial 112035, 16 Jan. 1998)
authorities. Art. 125 is a procedural requirement in
case of warrantless arrest. A case must be filed in NOTE: An accused who enters his plea of not guilty
court. and participates in the trial waives the illegality of
the arrest. Objection to the illegality must be raised
Period for officers to deliver the person before arraignment, otherwise it is deemed waived,
detained under Art. 125 of the RPC as the accused, in this case, has voluntarily
submitted himself to the jurisdiction of the court.
The person must be delivered to the judicial (People v. Macam, G.R. Nos. L-91011-12, 24 Nov.
authorities within the period specified in Art. 125 1994)
(Delay in the delivery of detained persons to the
proper judicial authorities): Application or admission to bail does not bar the
accused to question the validity of his arrest or the
1. 12 hours - Light penalties (i.e., arresto menor, legality of the warrant issued provided that he
public censure or a fine less than P200.00); raises it before he enters his plea.
2. 18 hours - Correctional penalties (i.e., prision
correccional, arresto mayor, suspension, Q: Boy Maton, a neighborhood tough guy, was
destierro. or a fine not exceeding P6,000.00 but arrested by a police officer on suspicion that he
not less than P200.00); was keeping prohibited drugs in his clutch bag.
3. 36 hours - Afflictive or capital penalties (i.e., When Boy Maton was searched immediately
death, reclusion perpetua, reclusion temporal, after the arrest, the officer found and recovered
perpetual or temporary absolute 10 sachets of shabu neatly tucked in the inner
disqualification, perpetual or temporary special linings of the clutch bag. At the time of his arrest,
disqualification, prision mayor, or a fine Boy Maton was watching a basketball game
exceeding P6,000.00). being played in the town plaza, and he was
cheering for his favorite team. He was

Criminal Procedure
subsequently charged with illegal possession of have equally waived his right to contest the legality
dangerous drugs, and he entered a plea of not of the search.” Therefore, Boy Maton may still move
guilty when he was arraigned. for the suppression of the evidence confiscated from
him being the consequences of the illegal arrest.
During the trial, boy Maton moved for the
dismissal of the information on the ground that Ratification of an Illegal Arrest
the facts revealed that he had been illegally
arrested. He further moved for the suppression An illegal arrest may not be ratified by the
of the evidence confiscated from him as being subsequent filing of information in court.
the consequence of the illegal arrest, hence, the
fruit of the poisonous tree. The trial court, in Once a person has been duly charged in court, he
denying the motions of Boy Maton, explained may no longer question his detention by petition for
that at the time the motions were filed Boy habeas corpus. His remedy is to quash the
Maton had already waived the right to raise the information and/or the warrant of arrest.
issue of the legality of the arrest. The trial court
observed that, pursuant to the Rules of Court, NOTE: Lack of jurisdiction over the person of an
Boy Maton, as the accused, should have assailed accused as a result of an invalid arrest must be
the validity of the arrest before entering his plea raised through a motion to quash before an accused
to the information. Hence, the trial court opined enters his or her plea. Otherwise, the objection is
that any adverse consequence of the alleged deemed waived, and an accused is estopped from
illegal arrest had also been equally waived. questioning the legality of his or her arrest.
Comment on the ruling of the trial court. (2017 The voluntary submission of an accused to the
BAR) jurisdiction of the court and his or her active
participation during trial cures any defect or
A: The trial court is correct insofar as Boy Maton is irregularity that may have attended an arrest. The
considered to have waived his objections to the reason for this rule is that "the legality of an arrest
illegality of his arrest. In Villanueva v. People (G.R. affects only the jurisdiction of the court over the
No. 199042, 17 Nov. 2014), the Supreme Court held person of the accused. (Veridiano v. People, G.R. No.
that objections to the irregularity of arrest must be 200370, 07 June 2017)
made before his arraignment. In this case, Boy
Maton made no objection to the irregularity of his Consequences of Illegal Arrests
arrest before his arraignment. Hence, the trial court
is correct when it ruled that Boy Maton had already 1. The court does not acquire jurisdiction over the
waived his right to question the illegality of his person of the accused;
arrest. Any irregularity attending the arrest of an 2. Law enforcers incur criminal liability for the
accused “should be timely raised in a motion to illegal arrest;
quash the information at any time before 3. Any search incident to the arrest becomes
arraignment, failing in which, he is deemed to have invalid rendering the evidence acquired as
waived” his right to question the regularity of his constitutionally inadmissible; (Veridiano v.
arrest. (People v. Cunanan, G.R. No. 198924, 16 Mar. People, G.R. No. 200370, 07 June 2017)
2015) 4. The documents, things or articles seized
following the illegal arrest are inadmissible in
However, the trial court erred when it ruled that evidence;
Boy Maton likewise waived his right to assail the 5. Arresting officer may be held civilly liable for
illegal search. In Villanueva, the Supreme Court the damages under Art. 32, NCC; and
ruled that “a waiver of an illegal arrest is not a 6. He may also be held administratively liable.
waiver of an illegal search.” It further held that
“while the accused has already waived his right to
contest the legality of his arrest, he is not deemed to

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Remedial Law
Q: May authorities resort to warrantless arrest REQUISITES OF A VALID WARRANT OF ARREST

in cases of rebellion?
Warrant of Arrest
A: YES. Since rebellion has been held to be a
continuing crime, authorities may resort to It is a legal process issued by a competent authority,
warrantless arrest of persons suspected of directing the arrest of a person or persons upon the
rebellion, as provided under Sec. 5, Rule 113. grounds stated therein. (Herrera, 2007)
However, this doctrine should be applied to its
proper context – i.e., relating to subversive armed Person who may issue a warrant of arrest
organizations, such as the New People’s Army, the
avowed purpose of which is the armed The 1987 Constitution speaks of “judges” which
overthrowing of the organized and established means judges of all levels. This power may not be
government. Only in such instance should rebellion limited much less withdrawn by Congress. The
be considered a continuing crime. (People v. Suzuki, power to determine the existence of probable cause
G.R. No. 120670, 23 Oct. 2003) to issue a warrant of arrest is a function of the judge
and such power lies in the judge alone. (People v.
BY PRIVATE PERSON (2017 BAR) Inting, G.R. No. 88919, 25 July 1990)
Instances when a private person may make an NOTE: The exception is in case of deportation of
arrest (1999, 2004 BAR) illegal and undesirable aliens, whom the President
or the Commissioner of Immigration may order
1. When, in his presence, the person to be arrested arrested following a final order of deportation for
has committed, is actually committing, or is the purpose of deportation. (Salazar v. Achacoso,
attempting to commit an offense (in flagrante G.R. No. 81510, 14 Mar. 1990)
delicto);
Essential requisites of a valid warrant of arrest
2. When an offense has just been committed and
he has probable cause to believe based on 1. Issued upon probable cause;
personal knowledge of facts or circumstances 2. Probable cause is to be determined personally
that the person to be arrested has committed it by the judge after examination under oath of the
(hot pursuit); and complainant and the witnesses he may
produce;
3. When the person to be arrested is a prisoner
who has escaped from a penal establishment or 3. The judge must personally evaluate the report
place where he is serving final judgment or is of the prosecutor and the evidence adduced
temporarily confined while his case is pending during the preliminary examination (Soliven v.
or has escaped while being transferred from Makasiar, G.R. No. L-82585, 14 Nov. 1988);
one confinement to another.
NOTE: A warrant of arrest issued based only on
NOTE: In cases falling under numbers (1) and (2) the prosecutor’s findings and recommendation
above, the person arrested without a warrant shall like the information and resolution finding a
be forthwith delivered to the nearest police station probable cause, without the court determining
or jail and shall be subjected to an inquest on its own the issue of probable cause based on
proceeding. evidence is null and void (Ho v. People, G.R. No.
106632, 09 Oct. 1997; Pamaran, 2007).
4. The warrant must particularly describe the

person to be arrested; and
5. It must be in connection with specific offense or
crime.

Criminal Procedure
Period of the validity of a warrant of arrest has sufficient ground to issue a warrant of arrest.
(People v. Tan, 608 SCRA 85, 26 July 2010)
No time limit is fixed for the validity of a warrant of
arrest, unlike a search warrant, which is effective It need not be based on clear and convincing
only for 10 days. (Pamaran, 2007) It remains valid evidence of guilt. It simply implies probability of
until arrest is effected or the warrant is lifted. guilt and requires more than bare suspicion but less
(Manangan v. CFI, G.R. No. 82760, 30 Aug. 1990) than evidence which would justify a conviction. (The
Presidential Ad-Hoc Fact-Finding Committee on
Remedy for warrant of arrest Behest Loans v. Desierto, G.R. No. 136225, 23 Apr.
2008).
Where a warrant of arrest was improperly issued,
the proper remedy is a petition to quash it, not a An arrest without a probable cause is an
petition for habeas corpus, since the court in the unreasonable seizure of a person and violates the
latter case may only order his release but not enjoin privacy of persons which ought not to be intruded
the further prosecution or the preliminary by the State. (Borlongan v. Peña, G.R. No. 143591, 05
examination of the accused. (Alimpoos v. CA, G.R. No. May 2010)
L-27331, 30 July 1981)
Probable cause to be determined personally by
Objection on the validity of the warrant the judge
Any objection involving a warrant of arrest or the Under Section 2, Article III of the 1987 Constitution,
procedure for the acquisition by the court of no warrant of arrest shall issue except upon
jurisdiction over the person of the accused must be probable cause “to be determined personally by the
made before he enters his plea; otherwise, the judge after examination under oath or affirmation of
objection is deemed waived. An accused may be the complainant and the witnesses he may
estopped from assailing the illegality of his arrest if produce.” This constitutional provision does not
he fails to move for the quashing of the information mandatorily require the judge to personally examine
against him before his arraignment. And since the the complainant and her witnesses. Instead, he or she
legality of an arrest affects only the jurisdiction of may opt to personally evaluate the report and
the court over the person of the accused, any defect supporting documents submitted by the prosecutor
in the arrest of the accused may be deemed cured or he or she may disregard the prosecutor’s report
when he voluntarily submits to the jurisdiction of and require the submission of supporting affidavits
the trial court. (Lapi v. People, G.R. No. 210731, 13 of witnesses. (AAA v. Carbonell, G.R. No. 171465, 08
Feb. 2019) June 2007)
DETERMINATION OF PROBABLE CAUSE FOR Q: An information for murder was filed against
ISSUANCE OF WARRANT OF ARREST Rapido. The RTC judge, after personally
evaluating the prosecutor's resolution,
Probable Cause documents and parties' affidavits submitted by
the prosecutor, found probable cause and issued
It refers to facts and circumstances which would a warrant of arrest. Rapido's lawyer examined
lead a reasonably discreet and prudent man to the rollo of the case and found that it only
believe that an offense has been committed by the contained the copy of the information, the
person ought to be arrested. It requires neither submissions of the prosecutor and a copy of the
absolute certainty nor clear and convincing warrant of arrest. Immediately, Rapido's
evidence of guilty. The test for issuing a warrant of counsel filed a motion to quash the arrest
arrest is less stringer than that used for establishing warrant for being void, citing as grounds:
guilt of the accused. As long as the evidence shows
prima facie case against the accused, the trial court a. The judge before issuing the warrant did not
personally conduct a searching examination

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Remedial Law
of the prosecution witnesses in violation of accused who should not be subjected to the loss of
his client's constitutionally mandated freedom.
rights;
b. There was no prior order finding probable Thus, the right to bail only accrues when a person is
cause before the judge issued the arrest arrested or deprived of his liberty. The right to bail
warrant. presupposes that the accused is under legal custody.
May the warrant of arrest be quashed on the (Paderanga v. CA, G.R. No. 115407, 28 Aug. 1995)
grounds cited by Rapido's counsel? State your
reason for each ground. (2015 BAR) It would be premature to file a petition for bail for
someone whose freedom has yet to be curtailed.
A: NO. The warrant of arrest may not be quashed on (Alva v. CA, G.R. No. 157331, 12 Apr. 2006)
the grounds cited by Rapido’s counsel.
Constitutional principles on bail
a. The Supreme Court has held in Soliven v.
Makasiar (167 SCRA 393, 14 Nov. 1988) that a. All persons, except those charged with offenses
Section 2 of Art. III of the Constitution does not punishable by reclusion perpetua when
mandatorily require the judge to personally evidence of guilt is strong, shall, before
examine the complainant and his witnesses. conviction, be bailable by sufficient sureties, or
The judge may opt to personally evaluate the be released on recognizance as may be
report and supporting documents submitted by provided by law.
the regarding the existence of probable cause b. The suspension of the privilege of the writ of
and on the basis thereof issue a warrant of habeas corpus does not impair the right to bail.
arrest. c. Excessive bail is not to be required. (Sec. 13,
b. There is no requirement of a prior order by the Article III, 1987 Constitution)
judge finding probable cause. The SC has held
that the judge may rely upon the resolution of The applicant for bail must be in custody
the investigating prosecutor provided that he
personally evaluates the same and the affidavits Bail as defined in Section 1 of Rule 114 is “the
and supporting documents, which he did. security given for the release of a person in custody
(People v. Grey, G.R. No. 180109, 26 July 2010) of the law.” Based on this definition, the accused
must be in custody of the law or otherwise deprived
of his or her liberty to be able to post bail. (Tejano v.
F. BAIL Marigomen, A.M. No. RTJ-17-2492, 26 Sept. 2017) A
(RULE 114) free man, therefore, is not entitled to bail. A fugitive
may not apply for bail unless he gives himself up
first so he may be placed under the custody of law.
(Riano, 2019)
NATURE
A person applying for admission to bail must be in

Bail is the security given for the release of a person
the custody of the law or otherwise deprived of his
in custody of the law, furnished by him or a
liberty. A person who has not submitted himself to
bondsman, to guarantee his appearance before any
the jurisdiction of the court has no right to invoke
court as required under the conditions prescribed
the processes of that court. (Miranda v. Tuliao, G.R.
under the Rules. (Sec. 1, Rule 114, ROC, as amended)
No. 158763, 31 Mar. 2006)
Basis of the right to bail

Effect of mitigating circumstances in
determining the right to bail
The right to bail is a constitutional right which flows
from the presumption of innocence in favor of every
The presence or absence of mitigating
circumstances is not a consideration that the

Criminal Procedure
Constitution deemed worthy. It is, therefore, the 3. The failure of the accused to appear at the trial
maximum penalty provided by the offense that has without justification and despite due notice
bearing and not the possibility of mitigating shall be deemed a waiver of his right to be
circumstances being appreciated in the accused’s present thereat. In such case, the trial may
favor. (Enrile v. Sandiganbayan, G.R. No. 213847, 18 proceed in absentia; and
Aug. 2015)
4. The bondsman shall surrender the accused to
Nature of bail proceedings the court for execution of the final judgment.
The hearing of an application for bail should be
summary in nature or otherwise in the discretion of NOTE: The original papers shall state the full name
the court. and address of the accused, the amount of the
undertaking and the conditions required by this
NOTE: 'Summary hearing' means such brief and section. Photographs (passport size) taken within
speedy method of receiving and considering the the last 6 months showing the face, left and right
evidence of guilt as is practicable and consistent profiles of the accused must be attached to the bail.
with the purpose of the hearing which is merely to (Sec. 2, Rule 114, ROC, as amended)
determine the weight of the evidence for purposes
of bail. (Ocampo v. Bernabe, G.R. No. L-439, 20 Aug. When the court finds that there is likelihood of the
1946) accused jumping bail or committing other harm to
the citizenry, the court may grant other conditions
Purposes of bail in granting bail. (Almeda v. Villaluz, G.R. No. L-31665,
06 Aug. 1975)
1. To relieve an accused from the rigors of
imprisonment until his conviction and yet Bail shall be filed:
secure his appearance at the trial (Almeda v.
Villaluz, G.R. No. L-31665, 06 Aug. 1975); 1. In the court where the case is pending;
2. To honor the presumption of innocence until
his guilt is proven beyond reasonable doubt; 2. In the absence or unavailability of the judge
and thereof, with any RTC judge, MTC judge, or
3. To enable him to prepare his defense without MCTC judge in the province, city, or
being subjected to punishment prior to municipality;
conviction.
NOTE: Where there is no showing that the
Conditions attached to the grant of bail judge of court where the criminal case is
pending is unavailable, another judge who
All kinds of bail are subject to the following entertains a bail application despite knowledge
conditions: of the pendency of the case in another court is
clearly in error. (Savella v. Ines, A.M. No. MTJ-07-
1. The undertaking shall be effective upon 1673, 19 Apr. 2007)
approval, and unless cancelled, shall remain in
force at all stages of the case until promulgation 3. If the accused is arrested in a province, city, or
of the judgment of the Regional Trial Court, municipality other than where the case is
irrespective of whether the case was originally pending, bail may also be filed with any RTC of
filed in or appealed to it; said place, or if no judge thereof is available,
with any MTC judge, MCTC therein; (Sec. 17(a),
2. The accused shall appear before the proper Rule 114, ROC, as amended)
court whenever required by the court or the
Rules; NOTE: When bail is filed with a court other than
where the case is pending, the judge who

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Remedial Law
accepted the bail shall forward it, together with 1. The trial court could ensure the presence of the
the order of release and other supporting accused at the arraignment precisely by
papers, to the court where the case is pending. granting bail and ordering his presence at any
(Sec. 19, Rule 114, ROC, as amended) stage of the proceedings (Sec. 2(b), Rule 114,
4. Any person in custody who is not yet charged in 2. The accused would be placed in a position
court may apply for bail with any court in the where he has to choose between (1) filing a
province, city, or municipality where he is held motion to quash and thus delay his release on
(Sec. 17(c), Rule 114, ROC, as amended); or bail, and (2) foregoing the filing of a motion to
quash so that he can be arraigned at once and
5. Where the grant of bail is a matter of discretion, thereafter be released on bail. (Lavides v. CA,
or the accused seeks to be released on G.R. No. 129670, 01 Feb. 2000)
recognizance, the application may only be filed
in the court where the case is pending, on trial Q: Bobby was charged with plunder before the
or appeal. (Sec. 17(b), Rule 114, as amended by Sandiganbayan. Thereafter, he was arrested by
A.M. No. 05-8-26-SC, 03 Oct. 2005) virtue of a warrant of arrest. He then filed an
application for bail. The Sandiganbayan refused
Q: If an information was filed in the RTC Manila to resolve his application for bail until after his
charging Mike with homicide and he was arraignment. He argues that his arraignment is
arrested in Quezon City, in what court or courts not a pre-condition to his application for bail. Is
may he apply for bail? Explain. (2002 BAR) Bobby correct? Explain.
A: Mike may apply for bail in the RTC Manila where A: YES. The arraignment of an accused is not a
the information was filed or in the RTC Quezon City prerequisite to the conduct of hearings on his
where he was arrested, or if no judge thereof is petition for bail. A person is allowed to petition for
available, with any MTC or MCTC judge therein. (Sec. bail as soon as he is deprived of his liberty by virtue
17(a), Rule 114, ROC, as amended) of his arrest or voluntary surrender. An accused
need not wait for his arraignment before filing a
Q: The accused was arrested lawfully without a petition for bail.
warrant for carnapping and detained at Camp
Crame in Quezon City. He asked for a NOTE: If the court finds in such case that the
preliminary investigation and signed a waiver of accused is entitled to bail because the evidence
the provisions of Art. 125 of the RPC. However, against him is not strong, he may be granted
the assisting judge of the RTC in Marikina provisional liberty even prior to arraignment; for in
approved the bail bond for the accused who was such a situation, bail would be “authorized” under
being held in Quezon City. Was the approval of the circumstances. (Serapio v. Sandiganbayan, G.R.
the bail bond proper? Nos. 148468, 148769, and 149116, 28 Jan. 2003)
A: NO. The bail must be applied for and issued by Law on Juveniles in conflict with the law with
the court in the province, city, or municipality respect to bail of non-capital offenses
where the person arrested is held. In this case, the
bail application should have been filed with a 1. The privileged mitigating circumstances of
Quezon City court which has the authority to grant minority shall be considered. (Sec. 34, R.A. No.
the bail and not Marikina court. (Ruiz v. Beldia, Jr., 9344, Juvenile and Justice Act of 2006)
A.M. No. RTJ-02-1731, 16 Feb. 2005)
2. Where a child is detained, the court shall order
Q: Is arraignment required before the court the:
grants bail? a. Release of the minor on recognizance to
his/her parents and other suitable person;
A: NO. For the following reasons:

Criminal Procedure
b. Release of the child in conflict with the law b. The accused goes to an authorized bonding
on bail; or company and he will pay a premium for the
c. Transfer of the minor to a youth detention service which is a percentage of the total
home or youth rehabilitation center. (Sec. amount of bail. The bonding company will
35, R.A. No. 9344) then go to the court and execute an
undertaking, or "security bond" in the
NOTE: The court shall not order the detention of a amount of the bail bond in behalf of the
child in a jail pending trial or hearing of his/her case. accused, that if the accused is needed, the
(Sec. 35, R.A. No. 9344) bonding company will bring him before the
court;
If minor is unable to furnish bail
c. If the accused jumps bail, the bond will be
The minor shall be, from the time of his arrest, cancelled, and the bonding company will be
committed to the care of the DSWD or the local given sufficient time to locate the
rehabilitation center or upon recommendation of whereabouts of the accused who posted
DSWD or other agencies authorized by the court bail but later on jumps bail. Notice to
may, in its discretion be released on recognizance. bonding company is notice to the accused.
(Sec. 36, R.A. No. 9344) Notice is usually sent to the bonding
company in order to produce the body of
Court martial offenses the accused.
NOTE: Liability of surety or bondsman
The right to bail has traditionally not been covers all three stages: trial, promulgation,
recognized and is not available in the military, as and execution of sentence.
an exception to the general rule embodied in the Bill
of Rights. (Commendador v. De Villa, G.R. No. 93177, 2. Property bond
02 Aug. 1991)
a. The title of the property will be used as
Filing of bail after a final judgment security for the provisional liberty of the
accused which shall constitute a lien over
GR: Bail may not be filed once there is already a final the property;
judgment. (Sec. 24, Rule 114, ROC, as amended)
b. The accused shall cause the annotation of
XPN: Even after conviction by the MTC, bail is still a the lien within 10 days after approval of the
matter of right. bond before the:
NOTE: If before such finality, the accused applies for i. Registry of Deeds if the property is
probation, he may be allowed temporary liberty registered; or
under his bail. In no case shall bail be allowed after ii. Registration Book in the Registry of
the accused has commenced to serve sentence. Deeds of the place where the land lies
and before the provincial, city or
Forms of bail municipal assessor on the
corresponding tax declaration if
1. Corporate surety/ Bail bond property is not registered (Sec. 11,
a. It is an obligation under seal given by the
accused with one or more sureties and c. The person who undertakes the conditions
made payable to the proper officer with the of a regular bond will be the custodian of
condition to be void upon performance by the accused during the time that he is under
the accused of such acts as he may be provisional liberty.
legally required to perform;

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Remedial Law
NOTE: In all cases, the surety of properties court. This is the remedy because no money is
must be worth the amount specified in his own involved in recognizance.
undertaking over and above all just debts,
obligations and properties exempt from Where Recognizance also applies
execution. (Sec. 12, Rule 114, ROC, as amended)
Under R.A. No. 10389, recognizance is not solely
3. Cash deposit or Cash bond allowed or applied to light felonies.
a. It is deposited by the accused himself or Under Sec. 5 of R.A. No. 10389, the release on
any person acting in his behalf; recognizance of any person in custody or detention
b. Cash shall be in the amount fixed by the for the commission of an offense is a matter of right
court or recommended by the prosecutor when the offense is not punishable by death,
who investigated the case; reclusion perpetua, or life imprisonment.
c. It is to be deposited before the: However, the accused must file an application for
such in the following instances:
i. Nearest collector of internal revenue;
ii. Provincial, city or municipal treasurer; a) Before or after conviction by the Metropolitan
or Trial Court, Municipal Trial Court, Municipal
iii. Clerk of court where the case is Trial Court in Cities and Municipal Circuit Trial
pending; Court; and
b) Before conviction by the Regional Trial Court:
d. No further order from the court is Provided, further, That a person in custody for
necessary for the release of the accused if a period equal to or more than the minimum of
the conditions prescribed were complied the principal penalty prescribed for the offense
with (Sec. 14, Rule 114, ROC, as amended); charged, without application of the
e. If the accused does not appear when Indeterminate Sentence Law, or any modifying
required, the whole amount of the cash circumstance, shall be released on the person’s
bond will be forfeited in favor of the recognizance. (Sec. 5, R.A. No. 10389)
government and the accused will now be
arrested. Bail bond vs. Recognizance
4. Recognizance BAIL BOND RECOGNIZANCE

An obligation under
An obligation of record
a. An obligation of record, entered into before seal given by the
entered into before
some court or magistrate duly authorized accused with one or
some court or
to take it with the condition to do some more sureties and
magistrate duly
particular act. It is an undertaking of a made payable to the
authorized to take it
disinterested person with high credibility proper officer with the
with the condition to do
wherein he will execute an affidavit of condition to be void
some particular act, the
recognizance to the effect that when the upon performance by
most usual condition in
presence of the accused is required in the accused of such
criminal cases being the
court, the custodian will bring him to that acts as he may legally
appearance of the
court; be required to
accused for trial.
b. This is allowed for light felonies only. perform.
NOTE: If the accused does not appear despite

notice to the custodian, or the person who
executed the recognizance does not produce
the accused, he may be cited for contempt of

Criminal Procedure
Liability of the surety or bondsmen or life imprisonment. (Enrile v. Sandiganbayan,

G.R. No. 213847, 18 Aug. 2015)
It is inherently civil in nature. The liability of the
bondsmen on the bail bond arises not from the 2. Before conviction by the RTC of an offense not
violation of, or an obligation to comply with, a penal punishable by death, reclusion perpetua or life
provision of law. It emerges instead from a contract, imprisonment (Sec. 4, Rule 114, ROC, as
the bond subscribed jointly by the accused and the amended); and
surety or bondsmen.
3. Before final conviction by all children in conflict
The obligation of the accused on the bond is with the law for an offense not punishable by
different from the surety in that the former can be reclusion perpetua or life imprisonment.
made to suffer a criminal penalty for failure to
comply with the obligations on the bail bond. Q: When the accused is entitled as a matter of
However, the surety is not under a similar pain of right to bail, may the court refuse to grant him
punishment, as its liability on the bail bond would bail on the ground that there exists a high
merely be civil in character. (Reliance Surety and degree of probability that he will abscond or
Insurance Co. v. Amante, Jr., et. al., G.R. No. 150994, 30 escape? Explain. (1999 BAR)
June 2005) A: NO. Where the offense is bailable, the mere
probability that the accused will escape or if he had
NOTE: The court may not impose additional previously escaped while under detention does not
obligations upon the bondsmen other than those deprive him of his right to bail. The remedy is to
provided by law. The obligation imposed upon the increase the amount of bail, provided the amount is
bondsmen cannot be greater nor of a different not excessive. (Sy Guan v. Amparo, G.R. No. L-1771,
character than those imposed upon the accused. 04 Dec. 1947)
(Bandoy v. Judge of CFI of La Laguna, G.R. No. L-5200,
11 Mar. 1909) WHEN A MATTER OF DISCRETION
Effect of filing forged bail bonds Bail as a matter of discretion (2017 BAR)
By filing forged bail bonds, appellants are 1. Upon conviction by the RTC of an offense not
considered not merely to have jumped bail, but for punishable by death, reclusion perpetua or life
all intents and purposes to have escaped from imprisonment;
detention. Hence, their pending appeal should be 2. Regardless of the stage of the criminal
dismissed, subject to the filing of the proper prosecution, a person charged with a capital
criminal cases against the parties responsible offense, or an offense punishable by reclusion
therefor. (People v. Del Rosario, G.R. Nos. 107297-98, perpetua or life imprisonment, when evidence
19 Dec. 2000) of guilt is not strong (Sec. 7, Rule 114, ROC, as
amended); and
WHEN A MATTER OF RIGHT; EXCEPTIONS 3. A child in conflict with the law charged with an
offense punishable by death, reclusion perpetua
Bail as a matter of right or life imprisonment when evidence of guilt is
not strong. (Sec. 28, A.M. No. 02-1-18-SC)
1. Before or after conviction by the MeTC, MTC,
MTCC or MCTC; NOTE: The prosecution cannot adduce evidence for
the denial of bail where it is a matter of right.
NOTE: All criminal cases under their However, where the grant of bail is discretionary,
jurisdiction are bailable as a matter of right the prosecution may show proof to deny the bail.
because these courts have no jurisdiction to try
cases punishable by death, reclusion perpetua, Whether bail is a matter of right or of discretion,
reasonable notice of hearing is required to be given

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Remedial Law
to the prosecutor or fiscal, or at least he must be appeal mean that bail should automatically be
asked for his recommendation. granted absent any of the circumstances
mentioned in the third paragraph of Sec. 5, Rule
Recommendation is necessary because in fixing the 114 of the Rules of Court?
amount of bail, the judge is required to take into
account a number of factors such as the applicant’s A: NO. In an application for bail pending appeal by
character and reputation, forfeiture of other bonds an appellant sentenced for more than six years, the
or whether he is a fugitive from justice. discretionary nature of the grant of bail pending
appeal does not mean that bail should automatically
Remedy of the accused when bail is be granted absent any of the circumstances
discretionary mentioned in the third paragraph of Sec. 5, Rule 114
of the Rules of Court.
When bail is discretionary, the remedy of the
accused is to file a petition for bail. Once a petition The third paragraph of Sec. 5 of Rule 114 applies to
for bail is filed, the court is mandated to set a two scenarios where the penalty imposed on the
hearing to give opportunity to the prosecution to appellant applying for bail is imprisonment
prove that the evidence of guilt is strong. If strong, exceeding 6 years. The first scenario involves the
the bail will be denied. If weak, the bail will be absence of any of the circumstances enumerated in
granted. the said paragraph. The second scenario
contemplates the existence of at least one of the said
Bail upon conviction by the RTC of an offense not circumstances.
punishable by death, reclusion perpetua or life
imprisonment In the first situation, bail is a matter of sound judicial
discretion. This means that, if none of the
The application for bail may be filed and acted upon circumstances mentioned in the third paragraph of
by the trial court despite the filing of a notice of Sec. 5, Rule 114 is present, the appellate court has
appeal, provided it has not transmitted the original the discretion to grant or deny bail. An application
record to the appellate court. However, if the for bail pending appeal may be denied even if the
decision of the trial court convicting the accused bail-negating circumstances in the third paragraph
changed the nature of the offense from non-bailable of Sec. 5, Rule 114 are absent.
to bailable, the application for bail can only be filed
with and resolved by the appellate court. (Sec. 5, On the other hand, on the second situation, the
Rule 114, ROC, as amended) appellate court exercises a more stringent
discretion, that is, to carefully ascertain whether
Q: Charged with murder, Leviste was convicted any of the enumerated circumstances in fact exists.
with the crime of homicide and was sentenced to If it so determines, it has no other option except to
suffer an indeterminate penalty of six years and deny or revoke bail pending appeal. Thus, a finding
one day of prision mayor as minimum to 12 that none of the said circumstances is present will
years and one day of reclusion temporal as not automatically result in the grant of bail. Such
maximum. Pending appeal he applied for bail, finding will simply authorize the court the less
but the same was denied by the CA. Petitioner’s stringent sound discretion approach. (Leviste v. CA,
theory is that, where the penalty imposed by the G.R. No. 189122, 17 Mar. 2010)
trial court is more than 6 years but not more
than 20 years and the circumstances mentioned Q: Enrile and several others were charged with
in the third paragraph of Sec. 5 are absent, bail plunder in the Sandiganbayan on the basis of
must be granted to an appellant pending appeal. their purported involvement in the diversion
In an application for bail pending appeal by an and misuse of appropriations under the Priority
appellant sentenced to a penalty of Development Assistance Fund (PDAF). On the
imprisonment for more than six years, does the same day that the warrant for his arrest was
discretionary nature of the grant of bail pending issued, Enrile voluntarily surrendered.

Criminal Procedure
Consequently, Enrile filed a Motion to Fix Bail Bail may also be availed under any of the
which was likewise denied by the following instances:
Sandiganbayan. Is Enrile entitled to bail?
1. When a person lawfully arrested without a
A: YES. The Sandiganbayan arbitrarily ignored the warrant asks for a preliminary investigation
objective of bail to ensure the appearance of the before the complaint or information is filed in
accused during the trial; and unwarrantedly court, he may apply for bail. (Sec. 6, Rule 112,
disregarded the clear showing of the fragile health ROC, as amended)
and advanced age of Enrile. As such, the
Sandiganbayan gravely abused its discretion in 2. The court may require a witness to post bail if
denying Enrile’s Motion to Fix Bail. The Court is he is a material witness and bail is needed to
further mindful of the Philippines’ responsibility in secure his appearance. When the court is
the international community arising from the satisfied, upon proof or oath, that a material
national commitment under the Universal witness will not testify when required, it may,
Declaration of Human Rights to uphold the upon motion of either party, order the witness
fundamental human rights as well as value the to post bail in such sum as may be deemed
worth and dignity of every person. In the Court’s proper. Upon refusal to post bail, the court shall
view, his social and political standing and his having commit him to prison until he complies or is
immediately surrendered to the authorities upon legally discharged after his testimony is taken.
his being charged in court indicate that the risk of (Sec. 14, Rule 119, ROC, as amended)
his flight or escape from this jurisdiction is highly
unlikely. (Enrile v. Sandiganbayan, G.R. No. 213847, Bail in Extradition Cases
18 Aug. 2015)
1. While our extradition law does not provide for
Grounds for denial of bail if the penalty imposed the grant of bail to an extraditee, however, there
by the trial court exceeds 6 years is no provision prohibiting him or her from
filing a motion for bail, a right to due process
If the penalty imposed by the trial court is under the Constitution.
imprisonment exceeding 6 years, the accused shall
be denied bail, or his bail shall be cancelled upon 2. While extradition is not a criminal proceeding,
showing by the prosecution, with notice to the it still entails a deprivation of liberty on the part
accused, of the following or other similar of the potential extraditee and furthermore, the
circumstances: purpose of extradition is also the machinery of
criminal law.
1. That he is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed the 3. The Universal Declaration of Human Rights
crime aggravated by the circumstance of applies to deportation cases; hence, there is no
reiteration; reason why it cannot be invoked in extradition
2. That he previously escaped from legal cases.
confinement, evaded sentence, or violated the
conditions of his bail without valid justification; 4. The main purpose of arrest and temporary
3. That he committed the offense while under detention in extradition cases is to ensure that
probation, parole, or conditional pardon; the potential extraditee will not abscond.
4. That the circumstances of his case indicate the
probability of flight if released on bail; or 5. Under the principle of pacta sunt servanda, the
5. That there is undue risk that he may commit Philippines must honor the Extradition Treaty
another crime during the pendency of the it entered into with other countries. Hence, as
appeal. (Sec. 5, Rule 114, ROC, as amended) long as the requirements are satisfactorily met,
the extraditee must not be deprived of his right
to bail. (Government of Hong Kong Special

e

Remedial Law
Administrative Region v. Olalia, G.R. No. 153675, reclusion perpetua, or life imprisonment. (Sec. 8,
19 Apr. 2007) Rule 114, ROC, as amended)
NOTE: The required proof of evidence is “clear and In a petition for admission to bail, the judge is under
convincing evidence” and not preponderance of legal obligation to receive evidence from the
evidence nor proof beyond reasonable doubt. The prosecution with the view of determining whether
burden of proof lies with the extraditee. (Ibid.) the evidence of guilt is so strong as to warrant the
denial of bail. For this purpose, therefore a hearing
Bail in deportation proceedings must be conducted to give opportunity for the
prosecution to present evidence that the guilt of the
It is available; however, bail in deportation accused is so strong before resolution of the motion.
proceedings is wholly discretionary. (Hang, etc. et al (Tolentino v. Camano, Jr., AM No. RTJ-00-1522, 20 Jan.
v. Commissioner of Immigration, G.R. No. L-9700, 28 2000)
Feb. 1962)
The fact that the prosecutor interposed no objection
Guidelines regarding the effectivity of bail to the application for bail by the accused did not
relieve respondent judge of the duty to set the
The SC En Banc laid the following policies motion for bail for hearing. (Managuelod v. Paclibon,
concerning the effectivity of the bail of the accused: Jr., A.M. No. RTJ-02-1726, 12 Dec. 2003)
1. When the accused is charged with an offense Capital Offense

which is punishable by a penalty lesser than
reclusion perpetua at the time of the A capital offense is an offense which, under the law
commission of the offense, or the application existing at the time of its commission and of the
for bail and thereafter he is convicted of a application for admission to bail, may be punished
lesser offense than that charged, he may be with death. (Sec. 6, Rule 114, ROC, as amended)
allowed to be released on the same bail he
posted, pending his appeal provided, he does NOTE: The imposition of death penalty was
not fall under any conditions of bail. prohibited by R.A. No. 9346 or “An Act Prohibiting
the Imposition of Death Penalty in the Philippines.”
2. The same rule applies if he is charged with a
capital offense but later on convicted of a Hearing of application for bail in offenses
lesser offense, that is, lower than that charged. punishable by death, reclusion perpetua or life
imprisonment
3. If on the other hand, he is convicted of that
offense which was charged against him, his 1. The hearing of the accused's motion for bail
bail shall be cancelled and he shall thereafter shall be summary; with the prosecution bearing
be placed in confinement. the burden of showing that the evidence of guilt
is strong. The accused may at his option, if he
NOTE: Bail in these circumstances is still not a wants the court to consider his evidence as well,
matter of right but only a matter of sound discretion submit in support of his motion the affidavits of
of the court. (Herrera, 2007) his witnesses attesting to his innocence.
HEARING OF APPLICATION FOR BAIL IN 2. At the hearing of the accused's motion for bail,
CAPITAL OFFENSES the prosecution shall present its witnesses with
the option of examining them on direct or
A hearing of the application for bail is to be adopting the affidavits they executed during the
conducted when a person is in custody for the preliminary investigation as their direct
commission of an offense punishable by death, testimonies.

Criminal Procedure
3. The court shall examine the witnesses on their evidence of the prosecution (Baylon v. Sison,
direct testimonies or affidavits to ascertain if A.M. No. 92-7-360-0, 06 Apr. 1995); and
the evidence of guilt of the accused is strong.
The court's questions need not follow any 4. If the guilt of the accused is not strong,
particular order and may shift from one witness discharge the accused upon the approval of the
to another. The court shall then allow counsels bail bond. Otherwise, petition should be
from both sides to examine the witnesses as denied. (Sec. 19, Rule 114, ROC, as amended)
well. The court shall afterwards hear the oral
arguments of the parties on whether or not the Party with the burden of proof in bail
evidence of guilt is strong. applications
4. Within 48 hours after hearing, the court shall It is the prosecution who has the burden of showing
issue an order containing a brief summary of that evidence of guilt is strong at the hearing of an
the evidence adduced before it, followed by its application for bail filed by a person who is charged
conclusion of whether or not the evidence of with a capital offense or an offense punishable by
guilt is strong. Such conclusion shall not be reclusion perpetua or life imprisonment. (Sec. 8, Rule
regarded as a pre-judgment on the merits of the 114, ROC, as amended)
case that is to be determined only after a full-
blown trial. (Sec. 6, A.M. No. 12-11-2-SC) Effect of a grant of bail
NOTE: The court consistently applies the rule The accused shall be released upon approval of the
that it is a mandatory duty to conduct a hearing bail by the judge. (Sec. 19, Rule 114, ROC, as
even if the prosecution chooses to just file a amended)
comment or leave the application for bail to the
discretion of the court. The purpose is to Remedy of the accused when bail is denied by
determine whether the evidence of guilt is the trial court
strong as to deny the application for bail.
(Goodman vs. De la Victoria, A.M. No. RTJ-99- File a petition for certiorari under Rule 65 based on
1473, 16 Feb. 2000) grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing such order. Such
Duties of the trial judge if an application for bail petition must take into account the hierarchy of
in offenses punishable by reclusion perpetua, courts. In the meantime, however, while the case is
life imprisonment or death pending, the accused may not be released. (Caballes
v. CA, G.R. No. 163108, 23 Feb. 2005)
1. Reasonably notify the prosecutor of the
hearing of the application for bail or require Evidence in bail hearing is automatically
him to submit his recommendation (Sec. 18, reproduced
The evidence presented during the bail hearing
2. Conduct a hearing of the application for bail shall be considered automatically reproduced at the
regardless of whether or not the prosecution trial but, upon motion of either party, the court may
refuses to present evidence to show that the recall any witness for additional examination unless
guilt of the accused is strong for the purpose of the latter is dead, outside the Philippines, or
enabling the court to exercise its sound otherwise unable to testify. (Sec. 8, Rule 114, ROC, as
discretion (Secs. 7 and 8, Rule 114, ROC, as amended)
amended);
3. Decide whether the evidence of guilt of the

accused is strong based on the summary of

e

Remedial Law
GUIDELINES IN FIXING AMOUNT OF BAIL BAIL WHEN NOT REQUIRED
The basic rule in fixing the amount of bail is that Instances when bail is not necessary or when
excessive bail shall not be required. (Sec. 13, Art. III, recognizance is sufficient
Bill of Rights, 1987 Constitution)
1. When the offense charged is for violation of an
In fixing the amount of bail, the amount should be ordinance, a light, or a criminal offense, the
high enough to assure the presence of the accused imposable penalty of which does not exceed 6
when such presence is required, but not higher than months imprisonment and/or Php2,000 fine,
what is reasonably calculated to fulfill the purpose. under circumstances provided under RA 6036
(Villaseñor v. Abano G.R. No. L-23599, 26 Sept. 1967) (An Act providing that bail shall not, with certain
exceptions, be required in cases of violations of
Fixing of the amount of bail municipal or city ordinances and in light
offenses);
Pending the raffle of the case to a regular branch of
the court, the accused may move for the fixing of the 2. Where a person has been in custody for a period
amount of bail, in which event, the executive judge equal to or more than the minimum of the
shall cause the immediate raffle of the case for imposable principal penalty, without
assignment and the hearing of the motion. (Sec. 2, application of the Indeterminate Sentence Law
A.M. No. 12-11-2-SC) or any modifying circumstance, in which case
the court, in its discretion, may allow his release
Duty of the court to fix appropriate bail on a reduced bail or on his own recognizance
The court shall, after finding sufficient cause to hold
the accused for trial, fix the amount of bail that the 3. When a person has been in custody for a period
latter may post for his provisional release, taking equal to or more than the possible maximum
into account the public prosecutor's imprisonment prescribed for the offense
recommendation and any relevant data that the charged, he shall be released immediately,
court may find from the criminal information and without prejudice to the continuation of the
the supporting documents submitted with it, trial or the proceedings on appeal. If the
regarding the following: maximum penalty to which the accused may be
sentenced is destierro, he shall be released after
1. Financial ability of the accused to give bail; 30 days of preventive imprisonment (Sec. 16,
2. Nature and circumstances of the offense; Rule 114, ROC, as amended);
3. Penalty for the offense charged;
4. Character and reputation of the accused; 4. The accused who has been detained for a period
5. Age and health of the accused; at least equal to the minimum of the penalty for
6. Weight of the evidence against the accused; the offense charged against him shall be
7. Probability of the accused appearing in trial; ordered released, motu proprio or on motion
8. Forfeiture of other bonds; and after notice and hearing, on his own
9. The fact that the accused was a fugitive from recognizance without prejudice to the
justice when arrested; and continuation of the proceedings against him
10. Pendency of the cases in which the accused is (Sec. 5, A.M. No. 12- 11-2-SC citing Sec. 16, Rule
under the bond. (Sec. 1, A.M. No. 12-11-2-SC) 114, Rules of Court, as amended and Sec. 5(b),
R.A. No. 10389);
5. Where the accused has applied for probation,

pending the resolution of the case but no bail
was filed or the accused is incapable of filing
one (Sec. 24, Rule 114, ROC, as amended);

Criminal Procedure
6. In case of a youthful offender held for a physical After the inquest proceeding, the public
and mental examination, trial, or appeal, if he is prosecutor filed an information for Violation of
unable to furnish bail and under circumstances R.A. No. 9262 (The VAWC Law) for physical
envisaged in P.D. No. 603 (Child and Youth violence and five separate information for
Welfare Code), as amended; and violation of R.A. No. 7610 (The Child Abuse Law).
Oasis Jung's lawyer filed a motion to be admitted
7. Before final conviction, all juveniles charged to bail but the court issued an order that
with offenses falling under the Revised Rule on approval of his bail bond shall be made only
Summary Procedure shall be released on after his arraignment.
recognizance to the custody of their parents or
other suitable person who shall be responsible a. Did the court properly impose that bail
for the juveniles’ appearance in court whenever condition before arraignment, Oasis Jung's
required. (Sec. 25, A.M. No. 02-1-18-SC) lawyer moved to quash the other four
separate information for violation of the
When bail is not allowed child abuse law invoking the single larceny
rule?
1. A person charged with a capital offense, or an b. Should the motion to quash be granted?
offense punishable by reclusion perpetua or life c. After his release from detention on bail, can
imprisonment, shall not be admitted to bail Oasis Jung still question the validity of his
when evidence of guilt is strong; (Sec. 7, Rule arrest? (2015 BAR)
2. After judgment of conviction has become final; A:
(Sec. 24, Rule 114, ROC, as amended) or a. NO. The court did not properly impose the
3. After the accused has commenced to serve his condition that the approval of the bail bond
sentence. (Ibid.) shall be made only after the arraignment. In a
case involving similar facts, the Supreme Court
Q: Paz was awakened by a commotion coming held that in cases where it is authorized, bail
from a condo unit next to hers. Alarmed, she should be granted before arraignment,
called up the nearby police station. PO1 Remus otherwise the accused may be hindered from
and P02 Romulus proceeded to the condo unit filing a motion to quash since his arraignment
identified by Paz. PO1 Remus knocked at the would necessarily be deferred pending the
door and when a man opened the door, PO1 resolution of the motion to quash. This would
Remus and his companions introduced amount to a substantial dilution of his right to
themselves as police officers. The man readily file a motion to quash. (Lavides v. CA, G.R. No.
identified himself as Oasis Jung and gestured to 129670, 01 Feb. 2000)
them to come in. Inside, the police officers saw a
young lady with her nose bleeding and face b. NO. The motion to quash should not be granted.
swollen. Asked by P02 Romulus what happened, In a case involving similar facts, the Supreme
the lady responded that she was beaten up by Court held that each act of sexual intercourse
Oasis Jung. The police officers arrested Oasis with a minor is a separate and distinct offense
Jung and brought him and the young lady back under R.A. No. 7610. Hence the single larceny or
to the police station. PO1Remus took the young single offense rule is not applicable. (Id.)
lady's statement who identified herself as AA.
She narrated that she is a sixteen-year-old high c. YES. Oasis Jung can still question the validity of
school student; that previous to the incident, she his arrest after his release from detention on
had sexual intercourse with Oasis Jung at least bail. Under the Rules on Criminal Procedure,
five times on different occasions and she was admission to bail shall not bar the accused from
paid P5,000.00 each time and it was the first challenging the validity of his arrest provided
time that Oasis Jung physically hurt her. P02 that he does so before entering his plea. (Sec. 26,
Romulus detained Oasis Jung at the station's jail. Rule 114, ROC, as amended)

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Remedial Law
INCREASE OR REDUCTION OF BAIL Liability of the bondsmen for failure to comply

with their obligations when the accused fails to
After the accused is admitted to bail, the court may, appear when required
upon good cause, either increase or reduce its
amount. When increased, the accused may be A judgment shall be rendered against the
committed to custody if he does not give bail in the bondsmen, jointly and severally, for the amount of
increased amount within a reasonable period. (Sec. the bail. (Sec. 21, Rule 114, ROC, as amended)
20, Rule 114, ROC, as amended) NOTE: The court shall not reduce or mitigate the
liability of the bondsmen, unless the accused has
NOTE: A motion to reduce the amount of bail been surrendered or is acquitted. (Sec. 21, Rule 114,
likewise requires a hearing before it is granted in ROC, as amended)
order to afford the prosecution the chance to
oppose it. (Sec. 18, Rule 114, ROC, as amended) The 30-day period granted to the bondsmen to
comply with the two requisites for the lifting of the
Excessive bail may not be imposed because that is order of forfeiture cannot be shortened by the court
tantamount to denying bail. but may be extended for good cause shown.
When accused does not have financial ability to Bench Warrant

post the bail initially fixed by the court
Aside from the forfeiture, when the accused fails to
The accused may move for its reduction by appear in court despite notice, the court may issue a
submitting documents and affidavits that may bench warrant for his arrest.
warrant his claim for reduction. (Sec. 3, A.M. No. 12-
11-2-SC) It is a writ issued directly by a judge to a law
enforcer, for the arrest of a person who has been
Priority of Hearing for motion for reduction of held in contempt, has disobeyed a subpoena, or has
bail to appear for a hearing or trial. (Magleo v. De Juan-
Quinagoran, A.M. No. RTJ-12-2336, 12 Nov. 2014)
Such motion shall enjoy priority in the hearing of
cases. (Sec. 3, A.M. No. 12-11-2-SC) Cancellation of bail
The order fixing the amount of the bail shall not be 1. Upon the application of the bondsmen, with due
subject to appeal. (Sec. 4, A.M. No. 12-11-2-SC) notice to the prosecutor, the bail may be
cancelled upon:
FORFEITURE AND CANCELLATION OF BAIL
a. Surrender of the accused; or
Effects of the failure of the accused to appear in
court when so required NOTE: In order to cancel bail on the ground
of surrender, the surrender must be
1. The bail shall be declared forfeited; and voluntary. (Esteban v. Alhambra, G.R. No.
2. The bondsmen are given 30 days within which 135012, September 4, 2004)
to:
b. Proof of his death.
a. Produce the body of their principal or give
the reason for his non-production; and 2. The bail shall be deemed automatically
b. Explain why the accused did not appear cancelled upon:
before the court when first required to do
so. (Sec. 21, Rule 114, ROC, as amended) a. Acquittal of the accused;
b. Dismissal of the case; or

Criminal Procedure
c. Execution of the judgment of conviction. motion to quash. The purpose of bail is to obtain the
(Sec. 22, Rule 114, ROC, as amended) provisional liberty of a person charged with an
offense until his conviction while at the same time
NOTE: In all instances of cancellation of bail, securing his appearance at the trial. On the other
automatic or otherwise, it shall be without prejudice hand, a motion to quash an information is the mode
to any liability on the part of the surety. (Sec. 22, Rule by which an accused assails the validity of a criminal
114, ROC, as amended) complaint or information filed against him for
insufficiency on its face in point of law, or for defects
Order of forfeiture vs. Order of cancellation which are apparent on the face of the information.
ORDER OF ORDER OF These two reliefs have objectives which are not
FORFEITURE CANCELLATION necessarily antithetical to each other. The right of an
Not independent of the accused to seek provisional liberty when charged
order of forfeiture. It is a with an offense not punishable by death, reclusion
judgment ultimately perpetua or life imprisonment, or when charged
determining the liability with an offense punishable by such penalties but
Conditional and
of the surety after due hearing, evidence of his guilt is found not
interlocutory. It is not
thereunder and to be strong, does not preclude his right to assail the
appealable.
therefore final. validity of the information charging him with such
offense. It must be conceded, however, that if a
Execution may issue at motion to quash a criminal complaint or
once. information on the ground that the same does not
charge any offense is granted and the case is
APPLICATION NOT A BAR TO OBJECTIONS IN dismissed and the accused is ordered released, the
ILLEGAL ARREST, LACK OF OR IRREGULAR petition for bail of an accused may become moot and
PRELIMINARY INVESTIGATION academic. (Serapio v. Sandiganbayan, G.R. Nos.
148468, 148769, and 149116, 28 Jan. 2003)
Bail not a bar to objections on illegal arrest, lack
of or irregular preliminary investigation HOLD DEPARTURE ORDER
AND BUREAU OF IMMIGRATION WATCHLIST
An application for bail is not a bar to objections in
illegal arrest or irregularity or lack of preliminary An accused released on bail may be re-arrested
investigation, provided that he raises them before without the necessity of a warrant if he attempts to
entering his plea. The court shall resolve the matter depart from the Philippines without permission of
as early as possible, not later than the start of the the court where the case is pending. (Sec 23, Rule
trial on the case. (Sec. 26, Rule 114, ROC, as amended) 114, ROC, as amended)
Q: Paolo was charged with estafa. Thereafter, he Hold Departure Order (HDO)
was arrested by virtue of a warrant of arrest
issued by the RTC. Before arraignment, Paolo It is an order issued by the Secretary of Justice or the
filed an application for bail. Paolo then filed a proper RTC commanding the Commissioner of the
motion to quash information on the ground that Bureau of Immigration to prevent the departure for
it charges more than one offense. RTC denied abroad of Filipinos and/or aliens named therein by
bail to Paolo on the ground that an application including them in the Bureau’s Hold Departure List.
for bail and a motion to quash are inconsistent (DOJ Dept. Order No. 17)
remedies. Is the RTC correct?
NOTE: The proper court may issue an HDO or direct
A: NO. There is no inconsistency in filing an the Department of Foreign Affairs to cancel the
application of an accused for bail and his filing of a passport of the accused. This is a case of a valid
restriction on a person’s right to travel so that he

e

Remedial Law
may be dealt with in accordance with the law. A: YES. DOJ Circular No. 41 was held to be
(Silverio v. CA, G.R. No. 94284, 08 Apr. 1991) unconstitutional. It bears reiterating that the power
to issue HDO is inherent to the courts. The courts
Who may issue an HDO may issue a HDO against an accused in a criminal
case so that he may be dealt with in accordance with
1. The RTC pursuant to SC Circular 39-97; or law. The point is that the DOJ may not justify its
2. The RTC, sitting as a Family Court pursuant to imposition of restriction on the right to travel of the
A.M. No. 02-11-12-SC; subjects of DOJ Circular No. 41 by resorting to an
analogy. Contrary to its claim, it does not have
NOTE: The DOJ Circular No. 41 granting the DOJ the inherent power to issue HDO, unlike the courts, or
power to issue an HDO was held to be to restrict the right to travel in anyway. It is limited
unconstitutional as it is violative of the person’s to the powers expressly granted to it by law and
right to travel as enshrined in our constitution. may not extend the same on its own accord or by
(Genuino v. De Lima, G.R. No. 197930, 17 Apr. 2018) any skewed interpretation of its authority. (Genuino
v. De Lima, G.R. No. 197930, 17 Apr. 2018)
NOTE: SC Circular 39-97 (19 June 1997) limits the
authority to issue HDO to the RTCs. Considering that HDO when issued
only the RTC is mentioned in said Circular and by
applying the rule on legal hermeneutics of express HDO shall be issued only in criminal cases within
mention implied exclusion, courts lower than the the exclusive jurisdiction of the RTCs upon proper
RTC — such as the MeTC, MTC, MTCC and MCTC — motion of the party. (SC Circular 39-97)
has no authority to issue hold departure orders in
criminal cases. (A.M. No. 99-9-141-MTCC, 25 Nov. Effect of the acquittal of the accused or dismissal
1999) of the case to the hold departure order issued by
the RTC
Q: In 2010, Acting DOJ Secretary Agra issued DOJ
Circular No. 41 governing the issuance and Whenever (a) the accused has been acquitted; or (b)
implementation of Hold Departure Orders the case has been dismissed, the judgment of
(HDO), Watchlist Orders (WLO), and Allow acquittal or the order of dismissal shall include
Departure Orders (ADO). In 2011, DOJ Sec. De therein the cancellation of the HDO issued. The
Lima issued a WLO against Former President courts concerned shall furnish the Department of
Arroyo on the ground that criminal charges of Foreign Affairs and the Bureau of Immigration with
plunder, qualified theft and violation of a copy each of the judgment of acquittal
Omnibus Election Code were filed against them. promulgated or the order of dismissal issued within
Arroyo filed a TRO against the issued HDO and 24 hours from the time of promulgation or issuance
WLO of DOJ and seeking relief that they be and likewise through the fastest available means of
allowed to travel to seek medical treatment transmittal.
abroad. The court granted relief sought on a
condition that a bond will be filed, an Permission to leave the country
undertaking that Arroyo will report to the
Philippine Consulate in the countries they are to Permission to leave the country should be filed in
visit and appointing a representative to receive the same court where the case is pending because
legal processes. Instead of following the order of they are in the best position to judge the propriety
the court, DOJ refused to process the travel and implication of the same. (Santiago v. Vasquez,
documents. Genuino filed a petition questioning G.R. No. 99289-90, 27 Jan. 1993)
the constitutionality of the DOJ Circular on the
ground that it infringes the constitutional right
to travel. Is DOJ Circular No. 41 violative of the
constitutional right to travel?

Criminal Procedure
Remedy against HDO or WLO to inform him of the charge and to give him an
opportunity to plead, or to obtain from the accused
HDO or WLO may be assailed by: his answer, in other words, his plea to the
information.
1. Filing a motion for cancellation; or
2. Filing a Motion to Lift Hold Departure Order. NOTE: Arraignment is an indispensable
requirement of due process.
Allow Departure Order (ADO)
How arraignment is made
ADO is a directive that allows the traveler to leave
the territorial jurisdiction of the Philippines. This is The arraignment is made in open court by the judge
issued upon application to the Commissioner of or clerk by furnishing the accused with a copy of the
Immigration and the appropriate government complaint or information, reading the same in the
agency. language or dialect known to him, and asking him
whether he pleads guilty or not guilty. (Sec. 1(a),
Remedy of a person who is not the same person Rule 116, ROC, as amended)
whose name appears in the HDO or WLO
Period of arraignment
Any person who is prevented from leaving the
country because his/her name appears to be the GR: Arraignment shall be made within 30 days from
same as the one that appears in the HDO or WLO the date the court acquires jurisdiction over the
may upon application under oath obtain a person of the accused. (Sec. 1(g), Rule 116, ROC, as
Certification to the effect that said person is not the amended)
same person whose name appears in the issued
HDO or WLO upon submission of the following NOTE: The time of the pendency of a motion to
requirements: quash or for a bill of particulars or other causes
justifying suspension of the arraignment shall be
1. Affidavit of Denial; excluded in computing the period.
2. Photocopy of the page of the passport bearing
the personal details; XPNs:
3. Latest clearance from the National Bureau of 1. When an accused is under preventive
Investigation; and detention, his case should be raffled within 3
4. Clearance from the court or appropriate days from filing and accused shall be arraigned
government agency when applicable. within 10 days from receipt by the judge of the
records of the case (R.A. No. 8493, Speedy Trial
Act);
G. ARRAIGNMENT AND PLEA
RULE 116 3. Where the complainant is about to depart from
the Philippines with no definite date of return,
the accused should be arraigned without delay;
ARRAIGNMENT AND PLEA, HOW MADE

4. Cases under R.A. No. 7610 (Child Abuse Act), the
trial shall be commenced within 3 days from
It is the formal mode of implementing the
arraignment;
constitutional right of the accused to be informed of
the nature of the accusation against him. (People v.
5. Cases under R.A. No. 9165 (Dangerous Drugs
Pangilinan, G.R. No. 171020, 14 Mar. 2007)
Act); and
Arraignment is a proceeding in a criminal case, the

6. Cases under SC AO 104-96 i.e., heinous crimes,
object of which is to fix the identity of the accused,
violations of the Intellectual Property Rights

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Remedial Law
law, these cases must be tried continuously NOTE: The principle that the accused is precluded
until terminated within 60 days from from questioning the legality of the arrest after
commencement of the trial and to be decided arraignment is true only if he voluntarily enters his
within 30 days from the submission of the case. plea and participates during trial, without
previously invoking his objections thereto. The
Procedure of arraignment arraignment of the accused constitutes a waiver of
the right to preliminary investigation or
1. It must be in open court where the complaint or reinvestigation.
information has been filed or assigned for trial;
GR: Judgment is void if accused has not been validly
2. By the judge or clerk of court; arraigned.
3. By furnishing the accused with a copy of the XPN: If accused went into trial without being
complaint or information; arraigned, the procedural defect was cured. The
active participation in hearing is a clear indication
4. Reading it in a language or dialect known to the that the accused is fully aware of the charges against
accused (People v. Albert, G.R. No. 114001, 11 him. (People v. Pangilinan, G.R. No. 171020, March
Dec. 1995); 14, 2007) (People v. Pangilinan, G.R. No. 171020, 14
Mar. 2007) In such case, an arraignment may be
5. Asking accused whether he pleads guilty or not made after the case has been submitted for decision.
guilty (Sec. 1(a), Rule 116, ROC, as amended);
and Absence of arraignment
6. Both arraignment and plea shall be made of NOTE: If the accused has not been arraigned, he
record but failure to enter of record shall not cannot be tried in absentia. (Sec. 14(2), Art. III, 1987
affect the validity of the proceedings. (Sec. 1(b), Constitution)
Presence of the accused during arraignment
NOTE: The accused must be arraigned before the
court where the complaint or information was filed The accused must be present at the arraignment and
or assigned for trial. (Sec. 1(a), Rule 116, ROC, as personally enter his plea. (Sec. 1(b), Rule 116, ROC,
amended) as amended) Counsel cannot enter plea for the
accused.
The accused cannot waive the reading of the
information to him and just enter his plea because it NOTE: Both arraignment and plea shall be made in
is constitutionally required. record but failure to do so shall not affect the
validity of the proceedings. (Sec. 1(b), Rule 116, ROC,
NOTE: Accused is presumed to have been validly as amended)
arraigned in the absence of proof to the contrary.
Presence of the offended party during
Options of the accused before arraignment and arraignment
plea:
The private offended party shall be required to
1. Bill of particulars; appear in the arraignment for the following
2. Suspension of arraignment; purposes:
3. Motion to Quash; or
4. Challenge the validity of arrest or legality of the 1. Plea bargaining;
warrant issued or assail the regularity or 2. Determination of civil liability; and
question the absence of preliminary 3. Other matters requiring his presence. (Sec. 1(f),
investigation of the charge. Rule 116, ROC, as amended)

Criminal Procedure
NOTE: In case the offended party fails to appear WHEN SHOULD PLEA OF NOT GUILTY BE
despite due notice, the court may allow the accused ENTERED
to enter a plea of guilty to a lesser offense which is
necessarily included in the offense charged with the A plea of not guilty shall be entered:
conformity of the trial prosecutor alone. (Sec. 1(f),
Rule 116, ROC, as amended) 1. When the accused so pleaded;
2. When he refuses to plead (Sec. 1(c), Rule 116,
Right to counsel de officio ROC, as amended);
3. When he enters a conditional plea of guilty (Sec.
While the right to be represented by counsel is 1(c), Rule 116, ROC, as amended);
immutable, the option to secure the services of
counsel de parte, however, is not. The court may NOTE: A plea of guilt subject to a proviso that a
restrict the accused’s option to retain a counsel de certain penalty be imposed upon the accused is
parte if the accused insists on an attorney he cannot equivalent to a plea of not guilty and would,
afford or chooses a counsel who is not a member of therefore require a full-blown trial. (People vs.
the bar, or when the attorney declines to represent Magat, G.R. No. 130026, 31 May 2000)
the accused for a valid reason, such as conflict of
interests. (People v. Servo, G.R. No. 119217, 19 Jan. 4. Where after a plea of guilty but presents
2000) exculpatory circumstances, his plea shall be
deemed withdrawn and a plea of not guilt shall
Persons allowed to be appointed as counsel de be entered for him (Sec. 1(d), Rule 116, ROC, as
officio amended); or
5. When the plea is indefinite or ambiguous.
1. Members of the bar in good standing;
2. Has the ability, experience and competence to NOTE: A plea of guilty shall be definite,
defend the accused; and unambiguous, and absolute, otherwise, it shall be
3. In localities where such members of the bar are considered as a plea of not guilty.
not available, the court may appoint any person
who is a resident of such province with good Plea of guilty
repute for probity and ability, to defend the
accused (Sec. 7, Rule 116, ROC, as amended) It is an unconditional plea of guilt which admits the
truth of the material facts and all the attendant (e.g.,
NOTE: Whenever a counsel de officio is appointed aggravating) circumstances alleged in the
by the court, he shall be given reasonable time to information. (People v. Koloh Pohong, G.R. No. L-
consult with the accused as to his plea before 32332, 15 Aug. 1973)
proceeding with arraignment. (Sec. 8, Rule 116, ROC,
as amended) NOTE: It operates to have the penalty imposed at its
minimum period. However, such plea shall not be
Arraignment and Preliminary Investigation considered mitigating in culpable felonies and in
under amended or substituted information crimes punishable by special laws. (Reyes, 2012)
FORMAL SUBSTANTIAL Effect of a plea of guilty

AMENDMENT AMENDMENT
There is no need for It is mandatory 1. Submission to the court’s jurisdiction; and
preliminary because the accused 2. It cures the defect in his arrest.
investigation and has the constitutional
retaking of the plea of right to be informed of Requisites of a voluntary plea of guilty
the accused. the accusation against
him. 1. Spontaneous confession of guilt;
2. It is made in open court;

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Remedial Law
3. It is made prior to the presentation of evidence party will not be required if said party, despite
for prosecution; and due notice, fails to appear during arraignment.
4. Confession of guilt was to the offense charged in (Riano, 2019)
the information.
NOTE: The rule uses the word may in Sec. 2
Reception of evidence in case the accused pleads Rule 116, denoting an exercise of discretion
guilty upon the trial court on whether to allow the
accused to make such plea. (Daan vs
The plea of guilty does not dispense with the Sandiganybayan, G.R. Nos. 163972-77, 28 Mar.
presentation of evidence as it is merely a secondary 2008)
basis of the guilt of the accused.
Effect of plea of guilty without consent of
1. For non-capital offenses - the reception of offended party and prosecutor
evidence is merely discretionary on the part of
the court. (Sec. 4, Rule 116, ROC, as amended) If If accused was convicted, the accused’s subsequent
the information or complaint is sufficient for conviction of the crime charged would not place him
the judge to render judgment on a non-capital in double jeopardy. (Sec. 7(c), Rule 117, ROC, as
offense, he may do so. amended)
2. For capital offense - the reception of evidence Q: Private respondent was charged with
to prove the guilt and degree of culpability of violations of “Comprehensive Drug Act of 2002”,
the accused is mandatory in which case, the as amended by R.A. No. 10640. He then pleaded
accused may present evidence in his behalf and guilty of a lesser offense. Petitioner filed a
the court shall conduct a searching inquiry into petition for certiorari against the trial court
the voluntariness and full comprehension of the with grave abuse of discretion when it granted
consequences of his plea. (Sec. 3, Rule 116, ROC, private respondent's proposal to plead guilty to
as amended) lesser offenses over the prosecution's vigorous
objection. It insisted that the prosecutor's
WHEN MAY ACCUSED ENTER A PLEA OF GUILTY consent in plea bargaining was a condition
TO A LESSER OFFENSE precedent to a valid plea of guilty to a lesser
offense. Is the consent of the prosecutor
The accused, with the consent of the offended party indispensable to a valid plea bargain in drugs
and the prosecutor, may plead guilty to a lesser cases?
offense which is necessarily included in the offense
charged. (Sec. 2, Rule 116, ROC, as amended) A: YES. Sec. 2, Rule 116 of the Revised Rules on
Criminal Procedure ordains that with the consent of
Requisites for a plea of guilty to a lesser offense the offended party and the prosecutor, plea
made at the arraignment bargaining to a lesser offense which is necessarily
included in the offense charged, may be allowed.
1. The lesser offense is necessarily included in the Contrary to the position taken by the trial court and
offense charged; and the Court of Appeals, the conformity of the
prosecutor to the proposed plea bargaining in drugs
NOTE: It is necessarily included when some of cases is not optional, nay, to be disregarded. For the
the essential elements or ingredients of the prosecutor has full control of the prosecution of
crime charge constitute the lesser offense and criminal actions; his duty is to always prosecute the
vice versa. proper offense, not any lesser or graver one, based
on what the evidence on hand can sustain. As
2. The plea must be with the consent of both the guardian of the rights of the people, the State files
offended party and the prosecutor. (Sec. 2, Rule the criminal action in the name of the People of the
116, ROC, as amended) Consent of the offended

Criminal Procedure
Philippines. (People vs Lascano, G.R No. 250295, 15 have sufficient evidence to establish guilt of the
Mar. 2021) crime charged. (People vs. Valderama, G.R. No.
99287, 23 Jun. 1992)
Q: May the accused enter a plea of guilty to a
lower offense? Q: D was charged with theft of an article worth P
15,000. Upon being arraigned he pleaded not
A: YES. guilty to the offense charged. Thereafter, before
trial commenced, he asked the court to allow
1. During arraignment him to change his plea of not guilty to a plea of
a. If the offended party is present, the latter guilty but only to estafa involving P 5,000. Can
must consent with the prosecutor to the the court allow D to change his plea? Why?
plea; and (2002 BAR)
b. That the lesser offense is necessarily
included in the offense charged. A: NO. A plea of guilty to a lesser offense may be
allowed if the lesser offense is necessarily included
2. After arraignment but before trial, provided in the offense charged. (Sec. 2, Rule 116, ROC, as
the following requisites are present: amended) Estafa involving P 5,000 is not necessarily
included in theft of an article worth P 15,000.
a. The plea of guilty is withdrawn;
b. The plea of not guilty and the withdrawal of Plea Bargaining
the previous guilty plea shall be made
before trial; Plea bargaining in criminal cases is a process
c. The lesser offense is necessarily included in whereby the accused and the prosecution work a
the offense charged; and mutually satisfactory disposition of the case subject
d. The plea must have the consent of the to court approval. It usually involves the
prosecutor and the offended party. (Sec. 2, defendant’s pleading guilty to a lesser offense or to
Rule 116, ROC, as amended) only one or some of the counts of a multi-count
indictment in return for a lighter sentence than that
NOTE: No amendment of complaint or for the graver charge. (Daan v. Sandiganbayan, G.R.
information is necessary. (Sec. 2, Rule 116, ROC, No. 163972-77, 28 Mar. 2008)
as amended) A conviction under this plea shall
be equivalent to a conviction of the offense NOTE: It is to be noted that the decision to accept or
charged for purposes of double jeopardy. reject a plea-bargaining agreement is within the
(People v. Magat, G.R. No. 130026, 31 May 2000) sound discretion of the court subject to certain
requirements of statutes or rules. (Amante-
3. During Pre-trial- Under Sec. 1(a), Rule 118, Descallar v. Judge Ramas, A.M. No. RTJ-08-2142 (OCA-
Plea-bargaining is one of the matters to be IPI No. 08-2779-RTJ), 20 Mar. 2009)
considered.
4. After prosecution rests – Allowed only when A plea of guilty to a lesser offense to which he was
the prosecution does not have sufficient convicted of which was made without the consent of
evidence to establish guilt for the crime the prosecution makes the plea bargaining is void,
charged. rendering the judgment by the court void ab initio
and cannot be considered to have attained finality
Period to enter plea of guilty to a lesser offense for the simple reason that a void judgment has no
legality from its inception. (People v. Reafor, G.R. No.
GR: Plea bargaining is made during pre-trial stage of 247575, 16 Nov. 2020)
criminal proceedings.
XPN: The law still allows accused to change his plea

thereafter provided that the prosecution does not

e

Remedial Law
ACCUSED PLEADS GUILTY TO A CAPITAL No collateral attack on plea of guilty

OFFENSE, WHAT THE COURT SHOULD DO
A plea of guilty entered by one who is fully aware of
Duty of the court after the accused pleads guilty the direct consequences, including the actual value
to a capital offense of any commitments made to him by court, the
prosecutor or his own counsel, must stand.
When the accused pleads guilty to a capital offense,
the court shall: NOTE: It is only when the consensual character of
the plea is called into question that the validity of a
1. Conduct a searching inquiry into the: guilty plea may be impaired.
a. Voluntariness of the plea, and
b. Full comprehension of the consequences of SEARCHING INQUIRY
the plea;
Purpose of searching inquiry
2. Require the prosecution to prove guilt and the
precise degree of his culpability; and To determine whether the plea of guilty was made
voluntarily and whether the accused understood
3. Ask the accused if he desires to present fully the consequence of his plea.
evidence in his behalf and allow him to do so if
he desires. Duty of the judge in conducting searching
inquiry
NOTE: The defendant after pleading guilty may
not present evidence as would exonerate him The judge must convince himself that:
completely from criminal liability such as proof
of self-defense. 1. The accused is entering the plea voluntarily and
intelligently;
This procedure is mandatory, and a judge who fails 2. There exists a rational basis for finding of guilt
to observe it commits grave abuse of discretion. The based on accused’s testimony; and
reason for this strictness is to assure that the State 3. Inform the accused of the exact length of
makes no mistake in taking life except the life of the imprisonment and the certainty that he will
guilty. (People v. Diaz, G.R. No. 119073, 13 Mar. 1996) serve it in a national penitentiary.
Purpose of the presentation of evidence after NOTE: The case of People v. Pastor (G.R. No.
the plea of guilty 140208, March 12, 2002) (G.R. No. 140208, 12
Mar. 2002) provided the following guidelines on
To preclude any room for reasonable doubt in the how judges must conduct a “searching inquiry:”
mind of either the trial court or of the Supreme
Court, on review, as to the possibility that there a. Ascertain from the accused himself (i) how
might have been misunderstanding on the part of he was brought into custody of the law; (ii)
the accused as to the nature of the charges to which whether he had the assistance of a
he pleaded guilty; and to ascertain the competent counsel during the custodial
circumstances attendant to the commission of the and preliminary investigations; and (iii)
crime which justify or require the exercise of under what conditions he was detained and
greater or lesser degree of severity in the imposition interrogated during the investigations;
of prescribed penalties. (People v. Busa, G.R. No. L-
32047, 25 Jun. 1973) b. Ask the defense counsel a series of
questions as to whether he had conferred
with, and completely explained to the
accused the meaning and consequences of
a plea of guilty;

Criminal Procedure
c. Elicit information about the personality Period to withdraw an improvident plea

profile of the accused;
The court may permit an improvident plea of guilty
d. Inform the accused of the exact length of to be withdrawn, at any time before the judgment of
imprisonment or nature of the penalty conviction becomes final and be substituted by a plea
under the law and the certainty that he will of not guilty. (Sec. 5, Rule 116, ROC, as amended)
serve such sentence;
NOTE: The withdrawal of a plea of guilty at any time
e. Inquire if the accused knows the crime with before judgment is not a matter of strict right to the
which he is charged and fully explain to him accused but of sound discretion to the trial court.
the elements of the crime; (Sec. 5, Rule 116, ROC, as amended; People v.
Lambino, G.R. No. L-10875, 28 Apr. 1958) The reason
f. All questions posed to the accused should for this is that trial has already begun and the
be in a language known and understood by withdrawal of the plea will change the theory of the
the latter; and case and put all past proceedings to waste.
Moreover, at this point, there is a presumption that
g. The trial judge must satisfy himself that the the plea was made voluntarily.
accused is truly guilty. (Riano, 2019 citing
People v. Pastor, 379 SCRA 181, 189-190; Effect of withdrawal of improvident plea
People v. Mira. 535 SCRA 543, 551-552)
The court shall set aside the judgment of conviction
NOTE: Conduct of a searching inquiry remains the and re-open the case for new trial.
duty of judges, as they are mandated by the rules to
satisfy themselves that the accused had not been NOTE: Convictions based on an improvident plea of
under coercion or duress; mistaken impressions; or guilt are set aside only if such plea is the sole basis
a misunderstanding of the significance, effects, and of the judgment. (People v. Documento, G.R. No.
consequences of their guilty plea. (People v. 188706, 17 Mar. 2010)
Jandalani, et al., G.R. No. 188314, 10 Jan. 2011)
GROUNDS FOR SUSPENSION OF ARRAIGNMENT
IMPROVIDENT PLEA
Upon motion by the proper party, the arraignment
It is a plea without information as to all the shall be suspended in the following cases:
circumstances affecting it. It is based upon a
mistaken assumption or misleading information or 1. The accused appears to be suffering from an
advice. (Black’s Law Dictionary) unsound mental condition which effectively
renders him unable to fully understand the
Instances of improvident plea charge against him and to plead intelligently
thereto;
1. Plea of guilty was compelled by violence or
intimidation; 2. There exists a valid prejudicial question;
2. The accused did not fully understand the
meaning and consequences of his plea; 3. A petition for review of the resolution of the
3. Insufficient information to sustain conviction of prosecutor is pending at the Department of
the offense charged; Justice or the Office of the President (Sec. 11,
4. Information does not charge an offense; or Rule 116, ROC, as amended); and
5. Court has no jurisdiction.
4. There are pending incidents such as:
a. Motion to Quash;
b. Motion for Inhibition; or
c. Motion for Bill of Particulars.

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Remedial Law
NOTE: The period of suspension shall not exceed NOTE: These grounds may be invoked at any stage
sixty (60) days counted from the filing of the of the proceedings.
petition with the reviewing office. (Sec. 11, Rule 116,
ROC, as amended) Who may file
Procedurally speaking, after the filing of the The right to file a motion to quash belongs only to
information, the court is in complete control of the the accused. The court is not authorized to motu
case and any disposition therein is subject to its proprio initiate a motion to quash by issuing an
sound discretion. The decision to suspend order requiring an explanation why the information
arraignment to await the resolution of an appeal should not be quashed. The court, though, has the
with the Secretary of Justice is an exercise of such discretion to dismiss the case if the information is
discretion. (Solar Team Entertainment Inc., v. How, not sufficient or on any ground provided by law, or
G.R. No. 140863, 22 Aug. 2000) to dismiss the information for a different one.
Form and contents of motion to quash

H. MOTION TO QUASH
(RULE 117) The motion to quash shall be:
1. In writing;
2. Signed by the accused or his counsel; and
Purpose of motion to quash
3. Specify distinctly the factual and legal grounds
on which it is based. (Sec. 2, Rule 117, ROC, as
The designated purpose of a motion to quash is to
amended)
assail the validity of the criminal information for
defects or defenses apparent on the face of the
Thus, there can be no oral motion to quash.
information. (Galzole y Soriaga v. Briones and
People, G.R. No. 164682, 14 Sept. 2001)
NOTE: The court shall not consider any other
ground other than those specifically stated in the
NOTE: A motion to quash based on double jeopardy
motion to quash except lack of jurisdiction over the
or extinction of the criminal action or liability, may,
offense charged and when the information does not
by their nature, be based on matters outside of the
charge an offense. (Omnibus Motion Rule, Sec. 2, Rule
allegations of the information or complaint. (Riano,
2019)
GROUNDS (F-O-P-A-C-M-E-L-D)
Period to file motion to quash an information or
complaint
1. The Facts charged do not constitute an offense
2. Lack of jurisdiction over the Offense charged
GR: At any time before entering his plea, the accused
3. Lack of jurisdiction over the Person of the
may move to quash the complaint or information.
accused
4. Lack of Authority of the officer to file
information
XPNs: Instances where a motion to quash may be
5. When the complaint or information does not
filed after entering plea:
Conform substantially to the prescribed form
6. Multiplicity of offenses charged
1. The facts charged do not constitute an offense;
7. Extinction of criminal action or liability
2. Lack of jurisdiction over the offense charged;
8. The complaint or information contains
3. The criminal action or liability has been
averments, which if true, would constitute a
extinguished; and
Legal excuse or justification
4. Double Jeopardy. (Sec. 9, Rule 117, ROC, as
9. Double Jeopardy
amended)

Criminal Procedure
NOTE: The enumeration is exclusive. Effect of failure to move to quash or to allege any
grounds therefor
Q: The information against Roger Alindogan for
the crime of acts of lasciviousness under Article GR: The failure of the accused to assert any ground
336 of the Revised Penal Code avers: of a motion to quash before he pleads to the
complaint or information shall be deemed a waiver
"That on or about 10:30 o'clock in the of any objections.
evening of February 1, 2010 at Barangay
Matalaba, Imus, Cavite and within the XPNs: (F-L-E-D)
jurisdiction of this Honorable Court, the 1. The Facts charged do not constitute an offense;
above-named accused, with lewd and 2. Lack of jurisdiction over the offense charged;
I
unchaste design, through force and 3. Extinguishment of criminal action or liability;
I
intimidation, did then and there, wilfully, and
unlawfully and feloniously commit sexual 4. Double Jeopardy. (Sec. 9, Rule 117, ROC, as
abuse on his daughter, Rose Domingo, a amended)
minor of 11 years old, either by raping her
or committing acts of lasciviousness on DISTINGUISH FROM DEMURRER TO EVIDENCE
her, against her will and consent to her
damage and prejudice. DEMURRER TO
MOTION TO QUASH
EVIDENCE
ACTS CONTRARY TO LAW." Filed before the Filed after the
defendant enters his prosecution has rested
The accused wants to have the case dismissed plea. its case.
because he believes that the charge is confusing, Does not go into the
Based on the ground of
and the information is defective. What ground merits of the case but is
insufficiency of
or grounds can he raise in moving for the anchored on matters
evidence adduced by
quashal of the information? Explain. (2016 BAR) not directly related to
the prosecution in
the question of guilt or
support of the
A: The grounds which the accused can raise in innocence of the
accusation.
moving for the quashal of the information are the accused.
following: Governed by Rule 117 Governed by Rule 119
of the Rules of Court. of the Rules of Court.
a. THE INFORMATION CHARGES MORE THAN May be filed by the
ONE OFFENSE. The information charges two Does not require a accused either with
offenses, that is, rape and sexual abuse. Worse, prior leave of court. leave or without leave
the charges are stated in the alternative, making of court.
it unclear to the accused as to what offense When it is granted,
exactly he is being charged with. dismissal of the case An order granting the
will not necessarily demurrer to evidence
b. THE INFORMATION DOES NOT CONFORM follow. The court may operates as an
SUBSTANTIALLY TO THE REQUIRED even order the filing of acquittal. Any
FORM. The information merely states that the a new complaint or subsequent
accused committed acts of lasciviousness upon information because prosecution of the
the victim without specifying what those acts of an order sustaining the same offense would
lasciviousness were. motion is generally not tantamount to double
a bar to another jeopardy. (People vs.
prosecution, (Sec. 5-6, Laguio, G.R. No.
Rule 116, ROC, as 128587, 16 Mar. 2007)
amended)

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Remedial Law
If the court, in denying A: YES. Art. III, Sec. 21 of the 1987 Constitution
the motion to dismiss provides that "no person shall be twice put in
or motion to quash acts The order denying the jeopardy of punishment for the same offense. If an
without or in excess of motion for leave to file act is punished by a law and an ordinance,
jurisdiction or with a demurrer or the conviction or acquittal under either shall constitute
grave abuse of demurrer itself shall a bar to another prosecution for the same act." This
discretion, then not be reviewable by is what is otherwise known as the right against
certiorari or appeal or by certiorari double jeopardy.
prohibition lies. before judgment. (Sec.
(Lazarte v. 23, Rule 119, ROC, as At the outset, it is important to point out that the
Sandiganbayan, G.R. amended) Court agrees with the CA that the RTC should not
No. 180122, 13 Mar. have granted Raya and Borromeo's Demurrer.
2009) Therefore, even if the RTC clearly erred in acquitting
Raya and Borromeo by granting their Demurrer, the
Where Certiorari may not lie in the denial of CA could not, and should not have, granted the
Demurrer to Evidence petition for certiorari for this was in violation of
their right against double jeopardy.
A petition for certiorari assailing the denial of a
demurrer to evidence will not resolve the merits of The grave abuses of discretion alleged by the People
the case in advance of trial. in its petition for certiorari constituted, in reality,
mere errors of judgment or misapprehension of
The court tasked with resolving the petition for evidence which do not justify the issuance of the
certiorari may only review whether the lower court writ of certiorari. Ultimately, the CA erred in
denied the demurrer to evidence with grave abuse granting the petition for certiorari and reinstating
of discretion. the proceedings against Raya and Borromeo. (Raya
v. People, G.R. No. 237798, 05 May 2021, J. Caguioa)
Filing petitions for certiorari to assail denials of
demurrers to evidence is emphatically discouraged. Procedure when motion to quash is denied
There is clearly a remedy still left to the accused,
which is to continue with trial. (Espinosa v When the motion to quash is denied, the accused
Sandiganbayan, G.R. No. 191834, 04 Mar. 2020) should:
Q: After the prosecution rested its case, the 1. Plead;

defense filed a Motion for Leave to File Attached 2. Go to trial without prejudice to the special
Demurrer to evidence with attached Demurrer defenses he invoked in the motion; and
to Evidence. The RTC then issued a Resolution 3. Appeal from the judgment of conviction, if any,
granting the Demurrer on the ground that based and interpose the denial of the motion as an
on its assessment, the testimonies of the error.
prosecution witnesses were plagued with
inconsistencies. Disagreeing with the RTC, the Q: Is the order denying the motion to quash
OSG filed a petition for certiorari before the CA. appealable?
The CA granted the petition for Certiorari and
reversed the acquittal made by the RTC. The CA A: NO.
thus declared null and void the RTC's Resolution
granting the Demurrer, and ordered the case GR: It is interlocutory and not appealable. Certiorari
reinstated for continuation of the proceedings. and prohibition are not the correct remedies against
Did the CA err in reversing Ray and Borromeo's an order denying a motion to quash. The defendant
acquittal? should instead go to trial and raise the special
defense he had invoked in his motion. And if after
trial on the merits, an adverse decision is rendered,

Criminal Procedure
remedy is to appeal in the manner authorized by was based on the extinction of criminal action
law. (Bulaong v. CA, G.R. No. 78555, 30 Jan. 1990) or liability or when it is based on double
jeopardy, as provided in Section 6 of Rule 117,
XPNs: ROC, as amended.
1. The act has ceased to be an offense;
2. When intervention by higher court is required a. If the order is made, the accused, if in
for te orderly administration of justice in the custody, shall not be discharged unless
interest of both the accused and the public; admitted to bail.
3. It is unfair and unjust to make the accused go to b. If no order is made, or if having been
trial; made, no new information is filed within
4. When the circumstances warrant that the time specified in the order or within
technicalities of procedures should be set aside; such further time as the court may allow
and for good cause, the accused, if in custody,
5. If the court denying the motion to quash acted shall be discharged unless he is also in
without or in excess of jurisdiction or with custody for another charge. (Sec. 5, Rule
grave abuse of discretion. 117, ROC, as amended)
Q: Bimby is charged with illegal possession of 2. If the motion to quash is sustained upon any of
firearms under an Information signed by the the following grounds, the court must state, in
Provincial Prosecutor. After arraignment but its order granting the motion, the release of the
before pre-trial, he found out that the Provincial accused if he is in custody, or the cancellation of
Prosecutor had no authority to sign and file the his bond if he is out on bail:
Information as it was the City Prosecutor who
has such authority. During the pre-trial, Bimby a. That a criminal action or liability has been
moves that the case against him be dismissed on extinguished;
the ground that the information is defective b. That it contains averments which, if true,
because the officer signing it lacked the would constitute a legal excuse or
authority to do so. The Provincial Prosecutor justification; or
opposes the motion on the ground of estoppel as c. That the accused has been previously
Bimby did not move to quash the Information convicted or acquitted of the offense
before arraignment. If you are the counsel for charged.
Bimby, what is your argument to refute the
opposition of the Provincial Prosecutor? (2000 3. If the ground upon which the motion to quash
BAR) was sustained is that the court has no
jurisdiction over the offense charged, the better
A: I would argue that since the Provincial practice is for the court to remand or forward
Prosecutor had no authority to file the information, the case to the proper court, not to quash the
the court did not acquire jurisdiction over the complaint or information.
person of the accused and over the subject matter of
the offense charged. Hence, this ground is not 4. If the motion is based on any of the following
waived if not raised in a motion to quash and could grounds:
be raised at the pre-trial. (People v. Hon. Zeida
Aurora Garfin, G.R. No. 153176, 29 Mar. 2004) a. That the facts charged do not constitute an
offense;
EFFECTS OF SUSTAINING THE MOTION TO b. That the officer who filed the information
QUASH had no authority to do so;
c. That it does not conform substantially to
1. If the motion to quash is sustained, the court the prescribed form; or
may order that another complaint or d. That more than one offense is charged.
information be filed except when the motion

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Remedial Law
The court should order the prosecution to file It protects the accused not against the peril of
another information or an amendment thereof, as second punishment but against being tried again.
the case may be, with a definite period, the order
further stating that in case of failure to comply Finality-of-Acquittal Doctrine
therewith, the accused if he is in custody shall be
discharged, or his bond cancelled if he is bonded. GR: An acquittal rendered by a court of competent
(Pamaran, 2010) jurisdiction after trial on the merits is immediately
final and cannot be appealed. (People vs.
EXCEPTION TO THE RULE THAT SUSTAINING Sandiganbayan, G.R. No. 164068-69, 19 Nov. 2013)
THE MOTION IS NOT A BAR TO ANOTHER
PROSECUTION XPN: When the proceedings were rigged, and a
sham and a mock trial held with pre-determined
GR: An order sustaining the motion to quash is not judgment of acquittal, the proceedings are unlawful
a bar to another prosecution for the same offense. and void ab initio. Double jeopardy then cannot be
invoked in setting aside such judgment because the
XPNs: The motion was based on the grounds of: prosecution was denied of due process. (Galman vs.
Sandiganbayan, G.R. No. 72670, 12 Sept. 1986)
1. Extinction of criminal action or liability; and
2. Double jeopardy (Sec. 6, Rule 117, ROC, as Kinds of double jeopardy
amended)
1. No person shall be put twice in jeopardy for the
DOUBLE JEOPARDY same offense.
(RES JUDICATA IN PRISON GREY)
NOTE: This prohibits double jeopardy of
Double jeopardy, as a criminal law concept, refers to punishment for the same offense.
jeopardy of punishment for the same offense,
suggesting that double jeopardy presupposes two 2. When the act punished by a law and an
criminal prosecutions. (Riano, 2019 citing Garcia v. ordinance, conviction or acquittal under either
Sandiganbayan, 603 SCRA 348, 361) shall be a bar to another prosecution for the
same act. (Sec. 21, Art. III, 1987 Constitution)
A person who has been convicted, acquitted or the
case against him dismissed or otherwise terminated NOTE: This kind prohibits double jeopardy of
without his express consent cannot again be charged punishment for the same act.
with the same or identical offense.
Q: Manuel was charged with violation of a city
The Philippine Constitution does not prohibit ordinance prohibiting the use of unauthorized
placing a person in jeopardy. What it prohibits is installations of electric wirings. The case was
putting the accused in double jeopardy in which he dismissed on the ground of prescription.
is put in danger of conviction and punishment for Subsequently, an information for theft of
the same offense for more than once. (Riano, 2019) electric power was filed against Manuel. May
Manuel properly invoke the principle of double
Purpose of the right against double jeopardy jeopardy?
The purpose is to set the effects of the first A: YES. The immediate physical effect of the
prosecution forever at rest, assuring the accused unauthorized installation was the inward flow of
that he shall not thereafter be subjected to the electric current into Manuel’s ice plant without the
danger and anxiety of a second charge against him corresponding recording thereof in his electric
for the same offense. (Caes v. Intermediate Appellate meter. In other words, the “taking” of electric
Court, G.R. Nos. 74989-90, 06 Nov. 1989) current was integral with the unauthorized
installation of electric wiring and devices. The

Criminal Procedure
dismissal of the information for violation of the local

ordinance amounts to an acquittal of the accused of Q: Is there double jeopardy when the complaint
that offense. (People v. Relova, G.R. No. L-45129, 06 or information was dismissed before the
Mar. 1987) defendant has been arraigned and had pleaded
thereto?
Elements of Double Jeopardy
A: NO. The requirement that the accused must have
1. Conviction or acquittal, or dismissal was made been arraigned and pleaded to the charge rests
without the consent of the accused; upon the idea that it is only from that moment that
2. Conviction or acquittal, or dismissal was made the issues for trial are deemed joined. Before that,
by a court of competent jurisdiction; the accused is not in danger of being validly
3. A valid information sufficient in form and convicted. (People vs. Apostol, 64 Phil. 676)
substance to sustain a conviction of the crime
charged; Q: Dora and Egor were charged with homicide in
4. Accused enters a valid plea; and one information. Before they could be
5. The subsequent prosecution is for an offense arraigned, the prosecution moved to withdraw
which is: the information altogether and its motion was
granted. Can the prosecution re-file the
a. the same as in the former complaint or information although this time for murder?
information; (2002 BAR)
b. frustration of; or
c. for any offense which is necessarily A: YES. The prosecution can re-file the information
included in the offense charged in the for murder in substitution of the information for
former complaint or information. homicide because no double jeopardy has as yet
attached. (Galvez v. Court of Appeals, G.R. No. 114046,
NOTE: The prohibition against double jeopardy 24 Oct. 1994)
refers to the same offense and not to the same act.
The offense charged in the two prosecutions must Q: Juancho entered a plea of guilty when he was
be the same in law and in fact, because the same acts arraigned under an information for homicide.
may be violative of two or more provisions of the To determine the penalty to be imposed, the
criminal law. trial court allowed Juancho to present evidence
proving any mitigating circumstance in his
For a dismissal to be a bar under the jeopardy clause favor. Juancho was able to establish complete
of the Constitution, it must have the effect of an self-defense. Convinced by the evidence
acquittal. (People v. Obsania, G.R. No. L-24447, 29 Jun. adduced by Juancho, the trial court rendered a
1968) verdict of acquittal. May the Prosecution assail
the acquittal without infringing the
Q: Can a person convicted by a court-martial be constitutional guarantee against double
prosecuted again in the civil court? jeopardy in favor of Juancho? Explain your
answer. (2017 BAR)
A: NO. A person convicted by a court-martial cannot,
for the same offense, be prosecuted again in the civil A: YES. A plea of guilty is an “unconditional
court. A court martial is a court, and the prosecution admission of guilt” with respect to the offense
of an accused before it is criminal, not charged. It forecloses the right to defend oneself
administrative; thus, it would be, under certain from said charge and leaves the court with no
conditions, a bar to another prosecution of the alternative but to impose the penalty fixed by law
defendant for the same offense, because the latter under the circumstances. Since the accused was
would place the accused in double jeopardy. only allowed to testify in order to establish
(Marcos v. Chief of Staff, G.R. No. L-4663, 30 May mitigating circumstances, for the purpose fixing the
1951) penalty, the testimony could not be taken as a trial

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Remedial Law
on the merits to determine the guilt or innocence of due to failure to prosecute which amounts to an
the accused. Since the accused asserted self-defense acquittal. (People v. Clobel, G.R. No. L-20314, 31 Aug.
in his testimony, said assertion had the effect of 1964; Esmeñe v. Pogoy, G.R. No. L-54110, 20 Feb.
vacating his plea of guilty. The trial court should 1981)
have required him to plead anew to the charge, or at
least direct that a new plea of not guilty be entered Tests in determining the identity of the offenses
for him and conducted trial on the merits. This was for the purpose of applying the rule on double
not done. It follows that, in effect, there having been jeopardy
no standing plea at the time the court a quo
rendered its judgment of acquittal; there can be no 1. Same offense test – Whether the offense
double jeopardy with respect to the appeal of the charged in the first information is the same
prosecution. (People v. Balicasan, G.R. No. L-26376, offense in the second charge, or whether the
31 Aug. 1966) second offense necessarily includes or is
necessarily included in the first offense charged
Q: Dondon was charged with slight physical in the former complaint or information.
injuries in the MTC. He pleaded not guilty and 2. Same evidence test – Whether the facts alleged
went to trial. After the prosecution has in the second information, if proved, would
presented its evidence, the trial court set the have been sufficient to sustain the former
continuation of the hearing on another date. On information, or from which the accused may
the date scheduled for hearing, the prosecutor have been acquitted or convicted.
failed to appear, whereupon the court, on
motion of Dondon, dismissed the case. A few Identity Rule
minutes later, the prosecutor arrived and
opposed the dismissal of the case. The court GR: There is identity between two offenses not only
reconsidered its order and directed Dondon to when the second offense is exactly the same as the
present his evidence. Before the next date of first, but also when the second offense includes or is
trial came, however, he moved that the last necessarily included in the first offense or an
order be set aside on the ground that the attempt or frustration thereof, or when it
reinstatement of the case had placed him twice necessarily includes or is necessarily included in the
in jeopardy. Acceding to this motion, the court offense charged in the first information.
again dismissed the case. The prosecutor then
filed an information in the RTC, charging XPNs:
Dondon with direct assault based on the same 1. The graver offense developed due to
facts alleged in the information for slight supervening facts arising from the same act or
physical injuries but with the added allegation omission constituting the former charge. (Sec.
that he inflicted the injuries out of resentment 7(a), Rule 117, ROC, as amended);
for what the complainant had done in the 2. The facts constituting the graver offense
performance of his duties as chairman of the became known or were discovered only after a
board of election inspectors. He moved to quash plea was entered in the former complaint or
the second information on the ground that its information (Sec. 7(b), Rule 117, ROC, as
filing had placed him in double jeopardy. How amended); and
should Dondon’s motion to quash be resolved? 3. The plea of guilty to the lesser offense was made
(2002 BAR) without the consent of the prosecutor and the
offended party. (Sec. 7(c), Rule 117, ROC, as
A: Dondon’s motion to quash should be granted on amended);
the ground of double jeopardy because the first
offense charged is necessarily included in the XPN to the XPN: The plea of guilty to a lesser
second offense charged. Although the dismissal of offense was made with the conformity of the
the first case was upon motion of the accused, prosecutor alone because of the failure of the
double jeopardy attached since the dismissal was

Criminal Procedure
offended party to appear at the arraignment despite 5. The dismissal by a competent court motu
due notice. (Sec. 1(f), Rule 116); proprio of a valid information, after the accused
has pleaded not guilty, does not bar further
NOTE: In any of the foregoing cases, where the prosecution for the same offense, if such
accused satisfies or serves in whole or in part the dismissal was made without prejudice to the
judgment, he shall be credited with the same in the refiling of the case in the proper court. (People
event of conviction for the graver offense. (Sec. 7, v. Manlapas, G.R. No. L-17993, 24 Aug. 1962)
6. The rule on double jeopardy does not apply to a
The rule of identity does not also apply when the controversy where one is an administrative
second offense was not in existence at the time of case, and the other is criminal in nature. (Riano,
the first prosecution for the simple reason that in 2019, citing Icasiano v. Sandiganbayan, G.R. No.
such case, there is no possibility for the accused, 95642, 28 May 1992)
during the first prosecution, to be convicted for an
offense that was then inexistent. (Melo v. People, G.R. 7. In People v. Balisacan (G.R. No. L-26376, 31 Aug.
No. L–3580, 22 Mar. 1950) 1966), the accused had first entered a plea of
guilty but subsequently testified, in the course
Instances where double jeopardy will not attach of being allowed to prove mitigating
circumstances, that he acted in complete self-
1. The dismissal of a case during preliminary defense. Said testimony had the effect of
investigation does not constitute double vacating his plea of guilty and the trial court did
jeopardy, preliminary investigation not being not require him to plead anew on the charge, or
part of the trial. (Flores v. Montemayor, G.R. No. at least direct that a new plea of not guilty be
170146, 08 Jun. 2011). entered for him. There having been no standing
plea at the time the trial court rendered its
2. When the Court finds that the “criminal trial judgment of acquittal, there can be no double
was a sham” because the prosecution jeopardy with respect to the appeal in this case.
representing the sovereign people in the
criminal case was denied due process. (Galman 8. An order of dismissal of a criminal case has the
v. Sandiganbayan, G.R. No. 72670, 12 Sept. 1986) effect of such judgment, and if given verbally, is
incomplete and does not have the effect of
3. A void judgment for having been issued without acquitting the accused before it is withdrawn.
jurisdiction. No double jeopardy attaches Hence, the prosecution of the case after such
because a void judgment is, in legal effect, no verbal order of dismissal has been withdrawn
judgment at all. By it, no rights are by the court, does not place the accused in
divested. Through it, no rights can be double jeopardy (Cabarroguis v. Diego, et al.,
attained. Being worthless, all proceedings G.R. No. L-19517, 30 Nov. 1962)
founded upon it are equally worthless. It
neither binds nor bars anyone. (People v. Court Variance doctrine
of Appeals, G.R. No. L-54641, 28 Nov. 1980)
GR: The accused may be convicted only of the crime
4. Dismissal is with the express consent of the with which he is charged. (Riano, 2019)
accused except on the following:
NOTE: A minor variance between the information
a. The dismissal is based on insufficiency of and the evidence does not alter the nature of the
evidence; or offense, nor does it determine or qualify the crime
b. The case is dismissed for violation of the or penalty, so that even if a discrepancy exists, this
accused’s right to speedy trial. (Benares v. cannot be pleaded as a ground for acquittal. (People
Lim, G.R. No. 173421, 14 Dec. 2006) v. Noque, G.R. No. 175319, 15 Jan. 2010)

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Remedial Law
XPN: When there is variance between the offense prosecution, have made the offense graver and the
charge in the complaint or information and that penalty first imposed legally inadequate.” (Double
proved, and the offense as charged is included in or Jeopardy: The Supervening Event Doctrine, 76 SCRA
necessarily includes the offense proved, the accused 469; Melo v. People, G.R. No. L-3580, 22 Mar. 1950)
shall be convicted of the offense proved which is
included in the offense charged, or of the offense NOTE: “It is indispensable that a new fact for which
charged which is included in the offense proved. the defendant is responsible had supervened and
(Sec. 4, Rule 120, ROC, as amended) this new fact changes the character of the crime first
imputed to him so that, together with the facts
1. The accused can be convicted of an offense only previously existing, it constitutes a new and distinct
when it is both charged and proven; offense. (Ibid.)
2. The mere fact that the evidence presented
would indicate that a lesser offense outside the Effect of double jeopardy on the civil aspect of
court’s jurisdiction was committed does not the case
deprive the court of its jurisdiction, which had
vested in it under the allegations in the The offended party or the accused may appeal the
information. (People v. Ocaya, G.R. No. L-47448, civil aspect of the case because the concept of
17 May 1978) double jeopardy evidently has reference only to the
criminal case and has no effect on the civil liability
XPN TO XPN: Where there are facts that of the accused. (Riano, 2019)
supervened after the filing of the information which
change the nature of the offense. Q: Can the public prosecutor appeal the civil
aspect of a criminal case?
Doctrine of Supervening Fact
A: NO. A public prosecutor cannot appeal the civil
Where after the first prosecution a new fact aspect of a decision in a criminal case. The acquittal
supervenes for which the defendant is responsible, of accused ends his work and the case is terminated
which changes the character of the offense and, as far as the prosecutor is concerned. (Cruz v. CA,
together with the facts existing at the time, G.R. No. 123340, 29 Aug. 2002; Salazar v. People, G.R.
constitutes a new and distinct offense, the accused No. 151931, 23 Sept. 2003)
cannot be said to be in second jeopardy, if indicted
for the new offense. (People v. City Court of Manila, Double jeopardy in quasi-offenses
G.R. No. L-36342, 27 Apr. 1983)
Q: As a result of vehicular mishap, petitioner
Q: Accused was charged with and convicted of was charged before the MTC of two separate
less serious physical injuries. The accused had offenses in two information for:
already begun serving his sentence when it was
found out that the complainant’s injuries did not a. Reckless imprudence resulting in slight
heal within the period formerly estimated, and physical injuries; and
so the provincial fiscal filed another information b. Reckless imprudence resulting in homicide
for serious physical injuries. The accused moved and damage to property for the death of the
to quash this second information on the ground husband of the respondent and damage to
of double jeopardy. Is the accused correct? the vehicle.
A: NO. Reversing the trial court’s order granting his Petitioner pleaded guilty to the first information
motion, the SC reiterated the Melo ruling and then and was punished only by public censure.
added: “That rule applies to the present case where, Invoking such conviction, petitioner now moves
after the prosecution for a lesser crime, new facts for the quashal of the other information on the
have supervened which, together with those ground of double jeopardy. Does double
already in existence at the time of the first jeopardy apply to quasi offenses?

Criminal Procedure
A: YES. The two charges arose from the same facts Period when provisional dismissal becomes
and were prosecuted under the same provision of permanent
the RPC, namely Art. 365. The doctrine is that
reckless imprudence under Art. 365 is a single 1. Offenses punishable by imprisonment not
quasi-offense by itself and not merely a means to exceeding 6 years or a fine of any amount, or
commit other crimes. Hence, conviction or acquittal both - shall become permanent 1 year after
of such quasi-offense bars subsequent prosecution issuance of the order without the case having
for the same quasi offense, regardless of its various been revived.
resulting acts. (Ivler v. Modesto- San Pedro, G.R. No. 2. Offenses punishable by imprisonment of
172716, 17 Nov. 2010) more than 6 years – shall become permanent 2
years after issuance of the order without the
Dismissal vs. Acquittal case having been revived. (Sec. 8, Rule 117, ROC,
as amended)
DISMISSAL ACQUITTAL
Does not decide on the Always based on the Time-bar Rule
merits, does not merits. Defendant is
determine the acquitted because guilt If no revival of the case is made within the
defendant’s guilt or was not proven beyond prescribed period, the dismissal shall be removed
innocence. reasonable doubt. from being provisional and shall become
Double jeopardy does Double jeopardy permanent.
not always attach. always attaches.
NOTE: The State may revive a criminal case beyond
Instances where dismissal of the case is the one-year or two-year periods, provided there is
tantamount to an acquittal justifiable necessity for the delay, and subject to the
right of the accused to oppose the same on the
1. Dismissal based on insufficiency of evidence of ground of double jeopardy, or that such revival or
the prosecution (demurrer to evidence); and refiling is barred by the statute of limitations.
2. Dismissal due to violation of right to speedy (People v. Lacson, G.R. No. 149453, 07 Oct. 2003)
trial (even if dismissal was upon motion of the
accused or with his express consent). Revival of the case
Rules on the application of double jeopardy on The case may be revived by the State within the
State witnesses time-bar rule either by the refiling of the
information or by filing of new information for the
An order discharging an accused as a State witness same offense or offense necessarily included
amounts to an acquittal, hence double jeopardy will therein. There would be no need for a new
apply. However, if he fails or refuses to testify preliminary investigation.
against his co-accused in accordance with his sworn
statement, he may be prosecuted again. Requisites of provisional dismissal
PROVISIONAL DISMISSAL 1. The prosecution with the express conformity of

the accused, or the accused, moves for a
It contemplates that the dismissal of the action is provisional (sin perjuicio) dismissal of the case;
not permanent and can be revived within the period or both the prosecution and the accused move
set by the Rules of Court. (Riano, 2019) for a provisional dismissal of the case;
2. The offended party is notified of the motion for

a provisional dismissal of the case;

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Remedial Law
3. The court issues an order granting the motion unknown or cannot be determined and,
and dismissing the case provisionally; and therefore, are subject to exclusion in
determining compliance with the prescribed
4. The public prosecutor is served with a copy of time limits which caused the trial to exceed 180
the order of provisional dismissal of the case. days, the court shall provisionally dismiss the
(People v. Lacson, et al., G.R. No. 149453, 01 Apr. action with the express consent of the detained
2003) accused.
Rule on provisional dismissal of a case 2. When the delays are due to the absence of an
essential witness whose presence cannot be
GR: Where the case was dismissed provisionally obtained by due diligence though his
with the consent of the accused, he cannot invoke whereabouts are known, the court shall
double jeopardy in another prosecution therefor provisionally dismiss the action with the
or where the case was reinstated on a motion for express consent of the detained accused
reconsideration by the prosecution. provided:
XPNs: The dismissal amounts to an acquittal even if a. The hearing in the case has been previously
the dismissal was ordered at the instance of the twice postponed due to the non-
defendant if: appearance of the essential witness and
both the witness and the offended party, if
1. It is based on lack or insufficiency of evidence; they are two different persons, have been
2. It was predicated upon the violation of the right given notice of the setting of the case for
of the accused to a speedy trial, hence, even if third hearing, which notice contains a
the accused gave his express consent to such warning that the case would be dismissed if
dismissal or moved for dismissal, such consent the essential witness continues to be
would be immaterial as such dismissal is absent; and
actually an acquittal; and
3. There is variance between the proof and the b. There is proof of service of the pertinent
allegations in the complaint or information. notices of hearings or subpoenas upon the
essential witness and the offended party at
Express consent their last known postal or e-mail addresses
or mobile phone numbers.
Express consent to a provisional dismissal is given
either orally or in writing. It is a positive, direct, 3. For the above purpose, the public or private
unequivocal consent requiring no inference or prosecutor shall first present during the trial
implication to supplying its meaning. (People v. the essential witness or witnesses to the case
Vergara, G.R. No. 101557-58, 28 Apr. 1993) before anyone else. An essential witness is one
whose testimony dwells on the presence of
The mere inaction or silence of the accused or his some or all of the elements of the crime and
failure to object to a provisional dismissal of the whose testimony is indispensable to the
case does not amount to express consen. (People v. conviction of the accused. (Sec. 10, A.M. No. 12-
Ylagan, G.R. No. L-38443, 25 Nov. 1933) 11-2-SC)
Provisional dismissal under A.M. No. 12-11-2-SC Reckoning period of one- or two-year period for
(Guidelines for Decongesting Holding Jails by revival of criminal case
Enforcing the Rights of Accused Persons to Bail
and to Speedy Trial) The one- or two-year period allowed for reviving a
criminal case that has been provisionally dismissed
1. When the delays are due to the absence of an shall be reckoned from the issuance of the order of
essential witness whose whereabouts are dismissal. The dismissal shall become automatically

Criminal Procedure
permanent if the case is not revived within the 5. Municipal Trial Court; and
required period. Such permanent dismissal shall 6. Municipal Circuit Trial Court (Sec. 1, Rule 118,
amount to an adjudication of the case on the merits. ROC, as amended)
(Sec. 14, A.M. No. 12-11-2-SC)
The holding of a pre-trial conference is mandatory
and failure to do so is inexcusable. When the law or
I. PRE-TRIAL procedure is so elementary, such as the provisions
(RULE 118) of the Rules of Court, not to know it or to act as if one
does not know it constitutes gross ignorance of the
law. Such ignorance of a basic rule in court
procedure, as failing to conduct a pre-trial, sadly
Pre-trial is a procedural device intended to clarify
amounts to gross ignorance and warrants a
and limit the basic issues between the parties and to
corresponding penalty. (National Power
take the trial of cases out of the realm of surprise
Corporations. Adiong (A.M. No. RTJ-072060
and maneuvering. It thus paves the way for a less
[Formerly OCA IPI No. 06-2498-RTJ]), 27 Jul. 2011)
cluttered trial and resolution of the case. (LCK
Industries v. Planters Development Bank, G.R. No.
Matters to be considered during Pre-Trial
170606, 23 Nov. 2007)
1. Plea bargaining;
Period of pre-trial
2. Stipulation of facts;
It shall be held after arraignment and within 30 days
from the date the court acquires jurisdiction over
NOTE: In order for the accused to be bound, it
the person of the accused unless a shorter period is
must be signed by him.
provided for in special laws or circulars of the
Supreme Court. (Sec. 1, Rule 118, ROC, as amended)
3. Marking for identification of evidence of
parties;
If the accused is under preventive detention, the
pre-trial shall be held within 10 days after
NOTE: No evidence shall be allowed to be
arraignment unless a law provides for a shorter
presented and offered during the trial other
period. (A.M. No. 03-1-09-SC, IB(1))
than those identified and marked during the
pre-trial except when allowed by the court for
Under the Revised Guidelines for Continuous Trial
good cause shown. (I-B (2), AM No. 03-1-09-SC)
of Criminal Cases, the arraignment and pre-
trial/preliminary conference are scheduled on the
4. Waiver of objections to admissibility of
same day.
evidence;
5. Modification of the order of the trial if one of the
Furthermore, the Pre-Trial Order shall immediately
accused admits the charge but interposes a
be served upon the parties and counsel on the same
lawful defense (reverse trial); and
day after its termination. (A.M. No. 15-06-10-SC)
6. Such matters as will promote a fair and
expeditious trial of the criminal and civil
Court in which pre-trial is mandatory
aspects of the case. (Sec. 1, Rule 118, ROC, as
amended)
Pre-trial is mandatory in all criminal cases
cognizable by the:
NOTE: If the accused has pleaded not guilty to the
crime charged, he may state whether he interposes
1. Sandiganbayan;
a negative or affirmative defense. A negative
2. RTC;
defense shall require the prosecution to prove the
3. Metropolitan Trial Court;
guilt of the accused beyond reasonable doubt, while
4. Municipal Trial Court in Cities;
an affirmative defense may modify the order of

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Remedial Law
trial and require the accused to prove such defense identified and marked as exhibits in
by clear and convincing evidence. (Sec. 3, R.A. No. determining further admissions of facts,
8493, Speedy Trial Act) documents and in particular as to the following:
Plea bargaining a. The identity of the accused;

b. Court’s territorial jurisdiction relative to
It is the process whereby the accused, the offended the offense/s charged;
party and the prosecution work out a mutually c. Qualification of expert witness;
satisfactory disposition of the case subject to court d. Amount of damages;
approval. It usually involves the defendant’s e. Genuineness and due execution of
pleading guilty to a lesser offense or to only one or documents;
some of the counts of a multi-count indictment in f. The cause of death or injury, in proper
return for a lighter sentence than that for the graver cases;
charge. g. Adoption of any evidence presented during
the preliminary investigation;
In this jurisdiction, plea bargaining has been defined h. Disclosure of defenses of alibi, insanity,
as "a process whereby the accused and the self-defense, exercise of public authority
prosecution work out a mutually satisfactory and justifying or exempting circumstances;
disposition of the case subject to court approval. and
(Estipona Jr. vs. Lobrigo, G.R. No. 226679, 15 Aug. i. Such other matters that would limit the
2017) facts in issue.
It usually involves the defendant’s pleading guilty to 3. Define factual and legal issues;
a lesser offense or to only one or some of the counts
of a multi-count indictment in return for a lighter 4. Ask parties to agree on the specific trial dates
sentence than that for the graver charge. (People vs. and adhere to the flow chart determined by the
Mamarlon, GR. No. 137554, 01 Oct. 2003) court which shall contain the time frames for
the different stages of the proceeding up to
Duty of the judge when plea bargaining is agreed promulgation of decision and use the time
upon frame for each stage in setting the trial dates;
During the pre-trial, the trial judge shall consider 5. Require the parties to submit to the Branch COC
plea-bargaining arrangements, except in cases for the names, addresses and contact numbers of
violations of the Comprehensive Dangerous Drugs witnesses that need to be summoned by
Act regardless of the imposable penalty. (Sec. 23, subpoena; and
R.A. No. 9165)
6. Consider modification of order of trial if the
Duty of the judge when plea bargaining fails accused admits the charge but interposes a
lawful defense. (A.M. No. 03-1-09-SC)
1. Adopt the minutes of preliminary conference as
part of the pre-trial proceedings, confirm Duty of the judge before pre-trial conference
markings of exhibits or substituted photocopies
and admissions on the genuineness and due The judge before pre-trial conference must study
execution of documents and list object and the following:
testimonial evidence;
1. Allegations of the information;
2. Scrutinize every allegation of the information 2. Statements in the affidavits of witnesses; and
and the statements in the affidavits and other 3. Other documents which form part of the record
documents which form part of the record of the of the preliminary investigation. (A.M. No. 03-1-
preliminary investigation and other documents 09-SC)

Criminal Procedure
Duty of the branch clerk of court during the What the court should do when Prosecution and
preliminary conference Offended Party agree to the Plea offered by the
Accused
During the preliminary conference, the branch
clerk of court shall: The court shall:
1. Assist the parties in reaching a settlement of the 1. Issue an order which contains the plea
civil aspect of the case; bargaining arrived at;
2. Mark the documents to be presented as exhibits 2. Proceed to receive evidence on the civil aspect
and copies thereof attached to the records after of the case; and
comparison; 3. Render and promulgate judgment of conviction,
3. Ascertain from the parties the undisputed facts including the civil liability or damages duly
and admissions on the genuineness and due established by the evidence. (A.M. No. 03-1-09-
execution of documents marked as exhibits; SC)
and
4. Consider such other matters as may aid in the PRE-TRIAL AGREEMENT
prompt disposition of the case. (A.M. No. 03-1-
09-SC) All agreements or admissions made or entered into
during the pre-trial conference shall be reduced in
NOTE: The proceedings during the preliminary writing and signed by the accused and counsel;
conference shall be recorded in the minutes of otherwise, the same cannot be used against the
preliminary conference to be signed by both parties accused. (Sec. 2, Rule 118, ROC, as amended) (2004
and counsel. (A.M. No. 03-1-09-SC) BAR)
Order of pre-trial conference NOTE: The court shall approve the agreements
covering the matters in the pre-trial conference.
Order for pre-trial conference must contain orders:
Pre-trial agreement as evidence
1. Requiring the private offended party to appear
thereat for purposes of plea-bargaining and for Requisites before a pre-trial agreement may be used
other matters requiring his presence; as evidence:
2. Referring the case to the branch clerk of court, if 1. It is reduced in writing; and
warranted, for a preliminary conference to be 2. Signed by the accused and his counsel
set at least 3 days prior to the pre-trial to mark
the documents or exhibits to be presented by The agreements in relation to matters referred to in
the parties and copies thereof to be attached to Sec. 1, Rule 118 are subject to the approval of the
the records after comparison and to consider court. (Sec. 2, Rule 118, ROC, as amended) Provided,
other matters as may aid in its prompt that the agreement on the plea of the accused to a
disposition; and lesser offense may only be revised, modified, or
annulled by the court when the same is contrary to
3. Informing the parties that no evidence shall be law, public morals, or public policy. (Sec. 3, R.A. No.
allowed to be presented and offered during the 8493, Speedy Trial Act)
trial other than those identified and marked
during the pre-trial except when allowed by the NOTE: The requirement of Sec. 2, Rule 118 of the
court for good cause shown. In mediatable Revised Rules on Criminal Procedure is intended to
cases, the judge shall refer the parties and their further safeguard the rights of the accused against
counsel to the Philippine Mediation Center unit improvident or unauthorized agreements or
for purposes of mediation if available. (A.M. No. admissions which his counsel may have entered
03-1-09-SC) into, or which any person may have ascribed to the

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Remedial Law
accused without his knowledge, as he may have at the arraignment, promulgation of judgment or
waived his presence at the pre-trial conference. when required to appear for identification.
(People vs. Uy, G.R. No. 128046, 07 Mar. 2000) (Regalado, 2008)
Stipulation of facts during pre-trial is allowed by PRE-TRIAL ORDER

Rule 118 of the Revised Rules of on Criminal
Procedure. Section 2 of Rule 118, meanwhile, Pre-trial order
prescribes that all agreements or admissions made
or entered during the pre-trial conference shall be It is an order issued by the court reciting the actions
reduced in writing and signed by the accused and taken, the facts stipulated, and the evidence marked
counsel, otherwise, they cannot be used against the during the pre-trial conference. (Sec. 4, Rule 118,
accused. In this case, while it appears that the pre- ROC, as amended)
trial agreement was signed only by the prosecution
and defense counsel, the same may nevertheless be Purpose and effect of the pre-trial order
admitted given that the defense failed to object to its
admission. (People v. Likiran, G.R. No. 201858, 04 Jun. The pre-trial order shall:
2014)
1. Bind the parties;
Amendment of pre-trial agreement 2. Limit the trial to those matters not disposed of;
and
Pre-trial may be amended on the grounds of: 3. Control the course of the action during the trial,
unless modified by the court to prevent
1. Agreement; or manifest injustice. (Ibid.; Sec. 5, RA 8493, Speedy
2. Palpable mistake Trial Act)
NON-APPEARANCE DURING PRE-TRIAL NOTE: To prevent manifest injustice, however, the

court, upon its own initiative or at the instance of
Effect of non-appearance of counsel for the any party, may modify the pre-trial order.
accused or the prosecutor during the pre-trial
without valid justification Period for the trial judge to issue a pre-trial
order and its contents
The court may impose proper sanctions or penalties
in the form of reprimand, fines or imprisonment, if It must be issued within 10 days after the
the counsel does not offer an acceptable excuse for termination of the pre-trial. It shall set forth the
his lack of cooperation. (Sec. 3, Rule 118, ROC, as following:
amended; Sec. 5, R.A. No. 8493, Speedy Trial Act)
1. Actions taken during the pre-trial conference;
Rationale of the exclusion of the accused in the 2. Facts stipulated;
mandatory appearance during pre-trial 3. Admissions made;
4. Evidence marked; and
The principal reason why the accused is not 5. Number of witnesses to be presented and the
included in the mandatory appearance is the fear schedule of trial. (Sec. 4, Rule 118, ROC, as
that to include him is to violate his constitutional amended)
right to remain silent. (Sec. 12(1), Art. III, 1987
Constitution)
NOTE: Unless otherwise required by the court,
personal appearance of the accused at the
conference is not indispensable. This is aside from
the consideration that the accused may waive his
presence at all stages of the criminal action, except

Criminal Procedure
Pre-trial in a Civil Case vs. Pre-trial in a Criminal criminal liability as one

Case (1997 BAR) of its purpose. (Ibid.)
The agreements and
All agreements or
PRE-TRIAL IN PRE-TRIAL IN admissions may be
admissions made or
CIVIL CASE CRIMINAL CASE contained in the record
entered during the pre-
Pre-trial is ordered by of pre-trial and pre-
trial conference shall
Pre-trial is preceded by the court and no trial order. The
be reduced in writing
a motion ex parte filed motion to set the case “Minutes of
and signed by both the
by the plaintiff to set for pre-trial is required Preliminary
accused and counsel;
the case for pre-trial. from either the Conference may be
otherwise, they cannot
(Sec. 1, Rule 18, ROC, as prosecution or the signed by either the
be used against the
amended) defense. (Sec. 1, Rule party or his counsel.
accused.
The pre-trial is ordered A pre-trial brief is
by the court after required to be
arraignment and submitted before the
A pre-trial brief is not
within 30 days from court and must be
specifically required.
the date the court served on the adverse
acquires jurisdiction party. (Sec. 6, Rule 18,
over the person of the ROC, as amended)
accused. (Ibid.)
The motion to set the
case for pre-trial is
NOTE: The J. TRIAL
made after the last
arraignment and RULE 119
pleading has been
preliminary
served and filed. (Ibid.)
conference shall be
simultaneously held in
It is the examination before a competent tribunal
mediatable cases
according to the laws of the land, of facts put in issue
subject to the Rule on
in a case for the purpose of determining such issue.
Summary Procedure.
(A.M. No. 15-06-10-SC
When trial shall commence
Resolution, effective
April 25, 2017)
1. The trial shall commence within 30 days from
The “proper sanctions
receipt of pre-trial order. (Sec. 1, Rule 119, ROC,
and penalties” for non-
as amended)
appearance may be
The sanction for non- 2. If the accused is to be tried again pursuant to an
imposed upon the
appearance is imposed order for a new trial, the trial shall commence
counsel or the
upon the non- within 30 days from notice of the order granting
prosecutor in case of
appearing party. (Sec. a new trial. (Sec. 5, Rule 119, ROC, as amended)
failure to offer an
5, Rule 18, ROC, as
acceptable excuse for
amended) NOTE: Period may be extended to one not
lack of cooperation.
exceeding 180 days from notice of order if period
becomes impractical due to unavailability of
as amended)
witness and other factors. (Ibid.)
Considers the Does not include the
possibility of an considering of the
amicable settlement or possibility of amicable
compromise. settlement of a

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Remedial Law
Summary of Periods It is one where the courts are called upon to conduct
the trial with utmost dispatch, with judicial exercise
Arraignment of the court’s power to control the trial to avoid
a. Within 30 days from the date the court delay and for each party to complete the
acquires jurisdiction over the accused, unless presentation of evidence with the trial dates
a shorter period is provided by special law or assigned to him. (Adm. Cir. No. 4, 22 Sep. 1988)
Supreme Court circular. (Sec. 1(g), Rule 116,
ROC, as amended) NOTE: The granting or refusal of an application for
continuance or postponement of the trial lies within
b. When the accused is under preventive the sound discretion of the court and the discretion
detention, the accused shall be arraigned will not be interfered with by mandamus or by
within 10 days from date of raffle. (Sec. 1(e), appeal unless there is grave abuse of discretion.
Pre-trial Purpose of the continuous trial system
a. After arraignment and within 30 days from
the date the court acquires jurisdiction over The purpose of the system is to “expedite the
the person of the accused, unless a shorter decision or resolution of cases in the trial courts”
period is provided by special law or Supreme considering the mandate of Sec. 12, Art. XVIII of the
Court circular. (Sec. 1, Rule 118, ROC, as 1987 Constitution. SC Circular No. 1-89 requires
amended) that the “judge shall conduct the trial with utmost
dispatch, with judicious exercise of the court's
b. If the accused is under preventive detention, power to control the trial to avoid delay” and that “a
the pre-trial shall be held within 10 days after strict policy on postponements shall be observed.”
arraignment. (Sec. 1(e), Rule 116, ROC, as
amended) NOTE: The SC adopted the continuous trial system
Trial as a mode of judicial fact-finding and adjudication
The general period applicable is 30 days from conducted with speed and dispatch so that trials are
receipt of the pre-trial order. (Sec. 1, Rule 119, held on the scheduled dates without postponement,
ROC, as amended) the factual issues for a trial well defined at pre-trial
and the whole proceedings terminated and reason
Hearing or judgment within 90 days from the date of initial
hearing, unless for meritorious reasons an
Hearing is not confined to trial but embraces several extension is permitted.
stages of litigation including the pre-trial stage. A
hearing does not necessarily imply the presentation Duties of the Presiding Judge under the
of oral or documentary evidence in open court but continuous trial system
that the parties are afforded an opportunity to be
heard. (Republic v. Sandiganbayan, G.R. No. 104768, a. Adhere faithfully to the session hours
21 Jul. 2003) prescribed by laws;
b. Maintain full control of the proceedings;
Continuous Trial c. Effectively allocate and use time and court
resources to avoid court delays; and
The trial once commenced, shall continue from day d. Continuous trial on a weekly or other short-
to day as far as practicable until terminated. term trial calendar at earliest possible time.
However, it may be postponed for a reasonable
period of time for good cause. (Sec. 2, Rule 119, ROC,
as amended)

Criminal Procedure
Factors to be considered for granting Exclusions in computation of time within which

continuance trial must commence
Whether or not: 1. Any periods of delay resulting from other

proceedings concerning the accused, including
1. The failure to grant a continuance would likely but not limited to the following:
make a continuation of such proceeding
impossible or result in a miscarriage of justice; a. Examination of the physical and mental
and condition of the accused;
2. The case, as a whole, is so novel, unusual and b. Proceedings with respect to other criminal
complex, due to the number of accused or the charges against the accused;
nature of the prosecution, or that it is c. Extraordinary remedies against
unreasonable to expect adequate preparation interlocutory orders;
within the periods of time established therein. d. Pre-trial proceedings; provided, that the
(Sec. 4, Rule 119, ROC, as amended) delay does not exceed 30 days;
e. Orders of inhibition, or proceedings
Prohibited grounds for a continuance relating to change of venue of cases or
transfer from other courts;
1. Congestion of the court’s calendar; f. A finding of the existence of a prejudicial
2. Lack of diligent preparation; question; or
3. Failure to obtain available witnesses on the part g. Those delays reasonably attributable to
of the prosecutor. (Sec. 4, Rule 119, ROC, as any period, not to exceed 30 days, during
amended) which any proceeding concerning the
accused is actually under advisement.
Time limit for the trial of criminal cases
a. Any period of delay resulting from the absence
GR: Trial shall not exceed 180 days from the first or unavailability of an essential witness;
day of trial. (Sec. 2, Rule 119, ROC, as amended)
NOTE: An essential witness shall be considered
XPNs: absent when his whereabouts are unknown or
1. Those governed by the rules on summary undetermined by due diligence. He shall be
procedure; considered unavailable whenever his whereabouts
2. Those where the penalty prescribed by law are known but his presence for trial cannot be
does not exceed 6 months imprisonment or a obtained by due diligence.
fine of P1,000 or both; and
3. Those authorized by the Chief Justice of the b. Any period of delay resulting from the mental
Supreme Court. (Sec. 6, R.A. No. 8493, Speedy incompetence or physical inability of the
Trial Act) accused to stand trial;
Commencement of trial may be extended based on c. If the information is dismissed upon motion of
the following conditions: the prosecution and thereafter a charge is filed
against the accused for the same offense, any
1. For the 180 days, for the first 12 calendar period of delay from the date the charge was
month period from the effectivity of the law; dismissed to the date the time limitation would
2. 120 days for the second 12-month period; and commence to run as to the subsequent charge
3. 80 days for the third 12-month period. (Sec. 9, had there been no previous charge;
R.A. No. 8493)
d. A reasonable period of delay when the accused
is joined for trial with a co-accused over whom
the court has not acquired jurisdiction, or, as to

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Remedial Law
whom the time for trial has not run and no Acts of the counsel, attorney, or prosecutor
motion for separate trial has been granted; and which would warrant a sanction
e. Any period of delay resulting from a 1. Knowingly allowing the case to be set for trial
continuance granted by any court motu proprio, without disclosing that a necessary witness
or on motion of either the accused or his would be unavailable for trial;
counsel, or the prosecution, if the court granted 2. Files a motion solely for delay, knowing it to be
the continuance on the basis of its findings set frivolous and without merit;
forth in the order that the ends of justice served 3. Makes a statement in order to obtain
by taking such action outweigh the best interest continuance which he knows to be false, and
of the public and the accused in a speedy trial. which is material to the granting of a
(Sec. 3, Rule 119, ROC, as amended) continuance; and
4. Willfully fails to proceed to trial without
Q: In a petition assailing the validity of the order justification. (Sec. 8, Rule 119, ROC, as amended)
of the trial court, the petitioner insists that the
judge acted with grave abuse of discretion when ORDER OF TRIAL IN CRIMINAL CASES
it dismissed the criminal case against the
accused on the ground that that the 30-day time In criminal cases, the trial shall proceed in the
limit set by Rule 119 had been breached. It is following order:
further claimed by the petitioner that their
pending petition for transfer of venue should 1. The prosecution shall present evidence to
interrupt proceedings and, therefore, halt the prove the charge and, in the proper case, the
running of the 30-day time limit. Is the petition civil liability.
meritorious?
NOTE: In Dangerous Drugs Cases, it is the duty
A: NO. The delays that may be excluded from the of the prosecution to present a complete picture
time limit in Sec. 3 of Rule 119 within which trial detailing the buy-bust operation – from the
must commence are those resulting from initial contact between the poseur-buyer and
proceedings concerning the accused. The time the pusher, the offer to purchase, the promise
involved in the proceedings in a petition for transfer or payment of the consideration, until the
of venue can only be excluded from said time limit if consummation of the sale by the delivery of the
it was the accused who instituted the same. Further, illegal subject of sale. (People v. Ong, G.R. No.
the petition for transfer of venue cannot interrupt 175940, 06 Feb. 2008)
proceedings unless a TRO or writ of preliminary
injunction has been issued in accordance with Sec. 7 2. The accused may present evidence to prove his
of Rule 65 as said petition is akin to a petition for defense, and damages, if any, arising from the
certiorari. (Mari vs. Gonzales, G.R. No. 187728, 12 issuance of a provisional remedy in the case.
Sept. 2011)
3. The prosecution may present rebuttal evidence
Remedies of the accused when a prosecuting unless the court, in furtherance of justice,
officer without just cause secures permits them to present additional evidence
postponements of the trial against his protest bearing upon the main issue.
beyond a reasonable period of time: NOTE: Rebuttal evidence is any competent
evidence to explain, repel, counteract or
1. Mandamus to compel a dismissal of the disprove the adversary’s proof. It is receivable
information; or only where new matters have been developed
2. If he is restrained of his liberty, by habeas by the evidence of one of the parties and is
corpus to obtain his freedom. generally limited to a reply to new points.

Criminal Procedure
4. The accused may present rebuttal evidence the proper offense, the accused cannot be convicted
unless the court permits them to present of the offense charged or any other offense
additional evidence bearing upon the main necessarily included therein.
issue.
XPN: The accused shall not be discharged if there
5. Upon admission of the evidence of the parties, appears to be a good cause to detain him. In such
the case shall be deemed submitted for decision case, the court shall commit the accused to answer
unless the court directs them to argue orally or for the proper offense and dismiss the case upon
to submit written memoranda. (Sec. 11, Rule filing of the proper information. (Sec. 19, Rule 119,
119, ROC, as amended) ROC, as amended)
NOTE: The order of the trial may be modified when NOTE: This rule is predicated on the fact that an
the accused admits the act or omission charged in accused has the right to be informed of the nature
the complaint or information but interposes a and cause of the accusation against him.
lawful defense. (Sec. 11(e), Rule 119, ROC, as
amended) Reopening of the proceedings
Q: What is reverse trial and when may it be At anytime before finality of judgment of conviction,
resorted to? Explain briefly. (2012 BAR) the judge may motu proprio or upon motion, with
hearing in either case, reopen the proceedings to
A: When the accused admits the act or omission avoid a miscarriage of justice. The proceedings shall
charged in the complaint or information but be terminated within 30 days from the order
interposes a lawful defense, the trial court may granting it. (Sec. 24, Rule 119, ROC, as amended)
allow the accused to present his defense first and
thereafter give the prosecution an opportunity to The case may be reopened upon the showing of the
present its rebuttal evidence. A departure from the following requirements:
order of the trial is not reversible error as where it
was agreed upon or not seasonably objected to, but 1. The reopening must be before finality of a
not where the change in order of the trial was timely judgment of conviction;
objected by the defense. 2. The order is issued by the judge on his own
initiative or upon motion;
NOTE: Where the order of the trial set forth was not 3. The order is issued only after the hearing is
followed by the court to the extent of denying the conducted;
prosecution an opportunity to present evidence, the 4. The order intends to prevent a miscarriage of
judgment is a nullity. If there is not enough evidence justice; and
to prove the accused’s guilt beyond reasonable 5. The presentation of additional and/or further
doubt, then the defense should file demurrer to evidence should be terminated within thirty
evidence. days from the issuance of the order. (Cabales v.
Maceda, 516 SCRA 303, 20 Feb. 2007)
Case deemed submitted for decision
INSTANCES WHEN PRESENCE OF ACCUSED IS
Upon the admission of the parties’ evidence-in- REQUIRED BY LAW
chief, rebuttal and sur-rebuttal proof, the case is
deemed submitted for decision unless the court In the following instances, the presence of the
directs them to argue their respective memoranda. accused is required:
Mistake in charging the proper offense 1. At arraignment and plea, whether of innocence
or of guilt; (Sec. 1(b), Rule 116, ROC, as amended)
GR: When it becomes manifest at any time before
judgment that a mistake has been made in charging

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Remedial Law
2. During trial whenever necessary for Conduct of trial for several accused
identification purposes; and (Sec. 1(c), Rule 115,
ROC, as amended) GR: When two or more persons are jointly charged
3. At the promulgation of sentence, unless it is for with an offense, they shall be tried jointly. This rule
a light offense, in which case, the accused may is so designed as to preclude a wasteful expenditure
appear by counsel or representative. (Sec. 6, of judicial resources and to promote an orderly and
Rule 120, ROC, as amended) expeditious disposition of criminal prosecutions.
Waiver of Right XPN: The court, in its discretion and upon motion of
the prosecutor or any of the defendants, may order
GR: The accused may waive his presence at the trial a separate trial for one or more accused. (Sec. 16,
pursuant to the stipulations set forth in his bail. Rule 119, ROC, as amended)
(Sec. 1(c), Rule 115, ROC, as amended)
NOTE: In the interest of justice, a separate trial may
XPN: Unless his presence is specifically ordered by be granted even after the prosecution has finished
the court for purposes of identification. (Sec. 1(c), presenting its evidence in chief. (Joseph v. Villaluz,
Rule 115, ROC, as amended) G.R. No. L-45911, 11 Apr. 1979)
Duty of the public attorney when accused is If a separate trial is granted, the testimony of one
imprisoned accused imputing the crime to his co-accused is not
admissible against the latter. In joint trial, it would
It shall be his duty to do the following: be admissible if the latter had an opportunity for
cross-examination.
a. Promptly undertake to obtain the presence of
the prisoner for trial or cause a notice to be REQUISITES BEFORE A TRIAL CAN BE
served on the person having custody of the SUSPENDED ON ACCOUNT OF ABSENCE OF
prisoner requiring such person to so advice the WITNESS
prisoner of his right to demand trial.
To justify delay or suspension of trial by reason of
b. Upon receipt of that notice, the custodian of that the absence of a witness, the following must be
prisoner shall promptly advice the prisoner of present:
the charge and of his right to demand trial. If at
any time thereafter the prisoner informs his 1. Witness is essential and appears to the court to
custodian that he demands such trial, the latter be so;
shall cause notice to that effect to be sent
promptly to the public attorney. NOTE: “Essential” means indispensable,
necessary, or important in the highest degree.
c. Upon receipt of such notice, the public attorney (Riano, 2019)
shall promptly seek to obtain the presence of
the prisoner for trial. 2. His absence is brought by either of the
following:
d. When the custodian of the prisoner receives
from the public attorney a properly supported a. His whereabouts are unknown; or
request for the availability of the prisoner for b. His whereabouts cannot be determined by
purposes of trial, the prisoner shall be made due diligence.
available accordingly. (Sec. 7, Rule 119, ROC, as
amended) NOTE: A witness shall be considered unavailable
even if his whereabouts are known but his presence
for the trial cannot be obtained by due diligence.
(Sec. 3(b), Rule 119, ROC, as amended)

Criminal Procedure
Effect of Absence of Witness will not be able to 2. He has to leave the

attend the trial. Philippines with
Any period of delay resulting from the absence or 2. He resides more no definite date of
unavailability of an essential witness shall be than 100 return. (Sec. 15,
excluded in computing the time within which trial kilometers and has Rule 119, ROC, as
must commence. (Sec. 3, Rule 119, ROC, as amended) no means to attend amended)
the same.
Appearance of material witness 3. Other similar
circumstances
Either party may, upon motion, secure an order exist that would
from the court for a material witness to post bail for make him
such sum as maybe deemed proper, if the court is unavailable or
satisfied upon either proof or oath that a material prevent him from
witness will not testify when required. (Sec. 14, Rule attending trial.
119, ROC, as amended) (Sec. 12, Rule 119,
ROC, as amended)
If the witness refuses to post bail, the court shall 4. May be made if the
commit him to prison until he compiles or is legally witness resides
discharged after his testimony has been taken. more than 100 km
(Ibid.) from the place of
trial. (Secs. 13 and
Some rules on witness’ credibility 15, Rule 119, ROC,
as amended)
1. Affidavits, which are usually taken ex parte, are Conducted before any
Conducted only before
often incomplete and inaccurate. (Resayo v. judge, member of bar
the judge or the court
People, 522 SCRA 391, 27 Apr. 2007) in good standing or
where the case is
2. Truth is established not by the number of before any inferior
pending.
witnesses but by the quality of their court.
testimonies. (Ceniza-Manantan v. People, 531 Right to cross-
SCRA 364, 28 Aug. 2007) examine. Hence such
statements of the
No right to cross
Examination of defense witness vs. Examination prosecution witnesses
examine.
of prosecution witness BEFORE TRIAL may thereafter be
admissible in behalf of
EXAMINATION OF EXAMINATION OF or against the accused.
DEFENSE WITNESS PROSECUTION
WITNESS TRIAL IN ABSENTIA
The accused may have
his witness examined Conducted in the Sec. 14 (2), Art. III of the Constitution provides that
conditionally in his presence of the trial may proceed notwithstanding the absence of
behalf before trial accused unless he the accused provided that he has been duly notified
upon motion with waived his right after and his failure to appear is unjustifiable. (Parada v.
notice to all other reasonable notice. Veneracion, A.M. No. RTJ-96-1353, 11 Mar. 1997)
parties.
Grounds Requisites of trial in absentia:
1. Witness is so sick
1. The witness is too
to afford 1. The accused has already been arraigned;
sick to appear at
reasonable ground 2. He has been duly notified of the trial; and
trial.
to believe that he

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Remedial Law
3. His failure to appear is unjustified. (Sec. 14(2), information may be dismissed on motion of the
Art. III, 1987 Constitution of the Philippines; accused on the ground of denial of his right to
Bernardo v. People, G.R. No. 166980, 04 Apr. speedy trial. (Sec. 9, Rule 119, ROC, as amended)
2007)
NOTE: The dismissal shall be subject to the rules on
Effects of trial in absentia double jeopardy. (Ibid.)
The accused waives the right to present evidence Burden of proving the motion
and cross-examine the witnesses against him. The
accused’s waiver does not mean, however, that the The accused has the burden of proving the motion,
prosecution is deprived of the right to require the but the prosecution shall have the burden of going
presence of the accused for purposes of forward with the evidence to establish the exclusion
identification by the witnesses which is vital for of time under Sec. 3, Rule 117, ROC, as amended.
conviction of the accused, except where he (Ibid.)
unqualifiedly admits in open court after his
arraignment that he is the person named as Failure of the accused to move for dismissal
defendant in the case on trial. prior to trial
Q: Assailing the validity of the decisions of both The failure of the accused shall constitute a waiver
trial and appellate court, the petitioner of the right to dismiss under Sec. 9, Rule 117 of the
questions the decisions of both courts Revised Rules on Criminal Procedure.
convicting him for violation of BP 22 on the
ground that he was denied due process of law as REQUISITES FOR DISCHARGE OF ACCUSED TO
the trial court proceeded with his trial and BECOME A STATE WITNESS
promulgated the assailed decision in absentia. Is
the petition meritorious? State witness
A: NO. The holding of trial in absentia is authorized He is one of two or more persons jointly charged
by law. Under Sec. 14 (2), Art. III of the 1987 with the commission of a crime but who is
Constitution, “after arraignment, trial may proceed discharged with his consent as such accused so that
notwithstanding the absence of the accused he may be a witness for the State. (People v. Ferrer,
provided that he has been duly notified and his G.R. No. 102062, 14 Mar. 1996)
failure to appear is unjustifiable.” The failure of the
accused to appear before the court in spite of notice Requisites before an accused may become a
has been considered a waiver of their right to be State witness:
present at their trial, and the inability of the court to
notify them of the subsequent hearings did not 1. Two or more accused are jointly charged with
prevent it from continuing with their trial. They the commission of an offense;
were deemed to have received notice. Thereafter,
the trial court had the duty to rule on the evidence 2. The motion for discharge is filed by the
presented by the prosecution against all the accused prosecution before it rests its case;
and to render its judgment accordingly. (Bernardo
vs. People, G.R. No. 166980, 04 Apr. 2007) 3. The prosecution is required to present evidence
and the sworn statement of each proposed state
REMEDY WHEN ACCUSED IS NOT BROUGHT TO witness at a hearing in support of the discharge;
TRIAL WITHIN THE PRESCRIBED PERIOD
4. The accused gives his consent to be a state
If the accused is not brought to trial within the time witness; and
limit required by Sec. 1(g), Rule 116, and Section 1,
as extended by Section 6 of this Section 119, the 5. The trial court is satisfied that:

Criminal Procedure
a. There is absolute necessity for the latter were already charged along with the other
testimony of the accused whose accused, including him, before they were
discharge is requested; admitted to the Witness Protection under RA
6981. Petitioner argues that if this were to be
b. There is no other direct evidence available allowed, the same is tantamount to permitting
for the proper prosecution of the offense the prosecution to supplant with its own the
committed, except the testimony of the said court’s exercise of discretion on how a case over
accused; which it has acquired jurisdiction will proceed.
Is the petition meritorious?
c. The testimony of said accused can be
substantially corroborated in its material A: NO. The discharge of an accused under R.A. No.
points; 6981 is separate and distinct from Rule 119. Rule
119 of the Revised Rules on Criminal Procedure
d. Said accused does not appear to be the most does not support the proposition that the power to
guilty; and choose who shall be a state witness is an inherent
judicial prerogative. The Rules of Court have never
e. Said accused has not at any time been been interpreted to be beyond change by legislation
convicted of any offense involving moral designed to improve the administration of our
turpitude. (Sec. 17, Rule 119, ROC, as justice system. R.A. No. 6981 is one of the much-
amended) sought penal reform laws to help government in its
uphill fight against crime. What is only required
When an accused be discharged to become a under R.A. No. 6981 is compliance with Sec. 14 of
state witness Rule 110 requiring that the exclusion of the accused
be made only upon motion by the prosecutor, with
The discharge can be at any time from filing to the notice to the offended party and with leave of court.
time the defense starts to offer any evidence. (Yu v. Judge RTC of Tagaytay City, G.R. No. 142848, 30
(People v. Aninon, G.R. No. L-39083, 06 Mar. 1988) Jun. 2006)
Q: May an accused who has pleaded guilty to an EFFECTS OF DISCHARGE OF ACCUSED AS STATE
offense still be discharged to become a state WITNESS
witness?
GR:
A: YES, for as long as he or she has not yet been 1. Discharge of accused operates as an acquittal
sentenced. The basic reason for the rule is that the and bar to further prosecution for the same
discharge of an accused is a matter of discretion. offense (Sec. 18, Rule 119, ROC, as amended);
(People vs. Ocimar, G.R. No. 94555, 17 Aug. 1992) 2. Evidence adduced in support of the discharge
shall automatically form part of the trial (Sec.
The guidelines however in the discharge of an 17, Rule 119, ROC, as amended); and
accused must be complied with. Another reason is 3. If the court denies the motion to discharge the
that the prosecutor should know better than the accused as State witness, his sworn statement
court and the defense for that matter, as to who shall be inadmissible in evidence. (Sec. 17, Rule
among the accused would best qualify to be 119, ROC, as amended)
discharged to become a state witness. The public
prosecutor knows the evidence in his possession XPNs:
ahead of all the rest. He knows he needs to establish 1. When the accused fails or refuses to testify
his case. (Albano, 2020) against his co-accused in accordance with his
sworn statement constituting the basis of his
Q: Petitioner claims that the public respondent discharge (Sec. 18, Rule 119, ROC, as amended);
judge erred when it ordered the discharge of 2. Failure to testify refers exclusively to
private respondents as state witnesses when the defendant’s will or fault; and

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Remedial Law
3. Where an accused who turns into a state Witness Protection Program vs. Sec. 17, Rule
witness on a promise of immunity but later 119 of the Rules of Court
retracts and fails to keep his part of the
agreement, his confession made under such a WITNESS
promise may be used against him. (People v. PROTECTION RULES OF COURT
Beberino, G.R. No. L-23092, 28 Oct. 1977) PROGRAM
Applicability to Felonies
NOTE: Discharge under this rule is only one of the The offense in which
modes to be a State witness. Other modes are: the testimony is to be
used is limited only to It has no qualification.
1. The Witness Protection Program of R.A. No. grave felony under the It applies to all felonies.
6981; RPC or its equivalent
2. The power of the Ombudsman to grant under special law.
immunity under Sec. 17, R.A. No. 6770; Additional Requirement
3. Immunity under P.D. No. 749 or granting Any member of the
immunity from prosecution to givers of bribes family of the person
and other gifts and to their accomplices in applying for admission
bribery and other graft cases against public within the second civil
officers; degree of
4. Immunity under E.O. 14-A or granting consanguinity or
immunity from criminal prosecution to any affinity is subjected to
person who provides information or testifies in threat of his life or
any investigation conducted by Presidential bodily injury or there is
Commission on Good Governance (PCGG); This is not required.
a likelihood that he will
5. Immunity under the Comprehensive Dangerous be killed, forced,
Drugs Act of 2002, R.A. No. 9165; and intimidated, harassed
6. Immunity and Protection under the Human or corrupted to
Security Act of 2007, R.A. No. 9372. prevent him from
testifying or to testify
Q: Is the discharge of an accused as a state falsely or evasively on
witness necessary before the prosecution can account of his
present him as a prosecution witness? testimony.
Law Enforcement Officer as Witness
A: NO. As there is nothing in the rules that require There is no such
that the accused be discharged first as a state limitation. One can be
witness before he becomes a prosecution witness. The witness applying is
discharged as a
While it is true that an accused cannot be made a not a law enforcement
witness whether he is a
hostile witness for the prosecution, for to do so officer.
law enforcement
would compel him to be a witness against himself, officer or not.
he may, however, testify against a co-defendant Granting of Immunity
where he has agreed to do so, with full knowledge of The immunity is The court grants the
his right and the consequences of his acts. There is a granted by DOJ. immunity.
difference between testifying as state witness and
Entitlement to Certain Rights
testifying as a co-accused. In the first, the proposed
The witness so
state witness has to qualify as a witness for the state,
The witness is discharged must still
after which he is discharged as an accused and
automatically entitled apply for the
exempted from prosecution. In the second, the
to certain rights and enjoyment of said
witness remains an accused and can be made liable
benefits. rights and benefits in
should he be found guilty of the criminal offense.
the DOJ.
(People v. Chaves, G.R. No. 131377, 11 Feb. 2003)

Criminal Procedure
Prior Charge NOTE: Generally, in criminal cases, the grant of a

He is charged in court demurrer is tantamount to an acquittal and the
The witness need not as one of the accused as dismissal order may not be appealed because this
be charged elsewhere. stated in the would place the accused in double
information. jeopardy. Although the dismissal order is not
Effect subject to appeal, it is still reviewable but only
The charges against through certiorari under Rule 65 of the Rules of
No information may Court.
him shall be dropped
thus be filed against
and the same operates
the witness. For the writ to issue, the trial court must be shown
as an acquittal.
to have acted with grave abuse of discretion
NOTE: Both require that there is absolute necessity amounting to lack or excess of jurisdiction such as
for the testimony and that there is no other direct where the prosecution was denied the opportunity
evidence available for the prosecution of the offense to present its case or where the trial was a sham
committed. thus rendering the assailed judgment void. The
burden is on the petitioner to clearly demonstrate
DEMURRER TO EVIDENCE that the trial court blatantly abused its authority to
a point so grave as to deprive it of its very power to
It is an objection by one of the parties in an action to dispense justice. (People v. Sandiganbayan, G.R. No.
the effect that the evidence which his adversary 174504, 21 Mar. 2011)
produced is insufficient in point of law to make out
a case or sustain the issue. (Nicolas v. Effect of filing a demurrer with leave of court vs.
Sandiganbayan, G.R. Nos. 175930-31, 11 Feb. 2008) Filing a demurrer without leave
NOTE: A demurrer to evidence is actually a motion DEMURRER WITH DEMURRER

to dismiss that is filed by the accused after the LEAVE OF COURT WITHOUT LEAVE OF
prosecution has rested its case. COURT
Denial of Demurrer
To be considered sufficient, the evidence must It is tantamount to a
prove: waiver of the accused’s
right to present
The accused may
1. The commission of the crime; and evidence and as a
proceed with the
2. The precise degree of participation therein by consequence the case
presentation of his
the accused. (Singian, Jr. v. Sandiganbayan, G.R. will be submitted for
evidence.
No. 195011-19, 30 Sept. 2013) judgment on the basis
of the evidence for the
RULES ON DEMURRER TO EVIDENCE prosecution.
How made 1. Court on its own initiative; or Grant of Demurrer
2. Upon filing of the accused for The case is dismissed, and the effect is an
demurrer of evidence: acquittal.
a. With leave of court; or Motion for Leave of Court
b. Without leave of court. The motion for leave of
When made After the prosecution rests its court to file a demurrer
case. to evidence shall
Ground Insufficiency of evidence specifically state its
Effect The court may dismiss the case. grounds and shall be
(Sec. 23, Rule 119, ROC, as filed within a non-
amended) extendible period of 5
days after the

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Remedial Law
prosecution rests its NOTE: In order to determine whether the pleading

case. The prosecution filed is demurrer to evidence or a motion to dismiss,
may oppose the the Court must consider:
motion within a non-
extendible period of 5 a. the allegations in it made in good faith;
days from its receipt. b. the stage of proceeding at which it is filed;
If leave of court is and
granted, the accused c. the primary objective of the party filing it.
may file the demurrer (Cabador v. People, GR No. 186001, 02 Oct.
to evidence within 10 2009)
days. The prosecution
may however, oppose Demurrer to Evidence in a Civil Case vs.
the demurrer to Demurrer to Evidence in a Criminal Case
evidence within a non-
extendible period of 10 DEMURRER TO DEMURRER TO
days from the receipt EVIDENCE IN A CIVIL EVIDENCE IN A
of the demurrer. (Sec. CASE CRIMINAL CASE
23, Rule 119, ROC, as Leave of Court
amended) Leave of Court is not A demurrer is filed
required before the with or without a
Purpose of leave of court filing of a demurrer. leave of court.
Appeal
The purpose of leave of court is to determine Order of dismissal is Order of dismissal is
whether or not the defendant in a criminal case has appealable, if the not appealable
filed the demurrer merely to stall the proceedings. dismissal is reversed, because of the
(People v. Mahinay, G.R. No. 109613, July 17, 1995) the defendant is Constitutional policy
deemed to have waived against double
Demurrer to evidence vs. Motion to dismiss his right to present his jeopardy. (People v.
evidence. (Sec. 1, Rule Tan, G.R. No. 167526,
DEMURRER TO MOTION TO DISMISS 33, ROC, as amended) 26 Jan. 2010)
EVIDENCE Effect of Denial
It is based on the The accused may
denial of the accused’s adduce his evidence in
Assumes that the
right to speedy trial his evidence only
prosecution has already
characterized by when the demurrer
rested its case filed by
unreasonable, that was denied was
the accused with or
vexatious and If the demurrer is filed with leave of
without leave of court
oppressive delay denied, the defendant court.
and submits the case for
without fault of the may proceed to present
judgment on the
accused, or by his evidence. (Sec. 1, When filed without
evidence of the
unjustified statements Rule 33, ROC, as leave of court and the
prosecution.
that unreasonably amended) He or she demurrer is denied,
prolonged the trial. does not lose his right the accused waives his
It may be filed in good It is filed without leave to present evidence. right to present
faith with or without of court and before the evidence and submits
leave of court. prosecution has the case for judgment
rested its case. on the basis of the
evidence for the
prosecution. (Sec. 23,

Criminal Procedure
Rule 119, ROC, as 4. Contains clearly and distinctly a statement of

amended) the facts and the law upon which it is based.
Jurisdictional requirements before a judgment

Basis may be rendered
A demurrer to evidence
in a civil a case is A demurrer in a 1. Jurisdiction over the subject matter;
anchored upon the criminal case is 2. Jurisdiction over the territory; and
failure of the plaintiff to predicated upon 3. Jurisdiction over the person of the
show that upon the insufficiency of accused. (Antiporda, Jr. v. Garchitorena,
facts and the law, he is evidence. G.R. No. 133289, 23 Dec. 1999)
entitled to relief.
Motu Proprio CONTENTS OF JUDGMENT
The court cannot move
at its own instance. The court may move at The judgment must state:
Motion from the its own instance.
defendant is required. 1. If of conviction:
a. Legal qualification of the offense
constituted by the acts committed by the
accused, and the aggravating or mitigating
K. JUDGMENT
circumstances attending its commission;
(RULE 120)
b. Participation of the accused whether as
principal, accomplice or accessory;
c. Penalty imposed upon the accused; and
Judgment is the adjudication by the court that the d. Civil liability or damages caused by the
accused is guilty or not guilty of the offense charged wrongful act or omission unless a separate
and the imposition of the proper penalty and civil civil action has been reserved or waived.
liability, if any. (Sec. 1, Rule 120, ROC, as amended) (Sec. 2, Rule 120, ROC, as amended)
REQUISITES OF A JUDGMENT 2. If of acquittal:

a. Whether the evidence of the prosecution
Formal requisites absolutely failed to prove the guilt of the
accused or merely failed to prove his guilt
1. Written in official language; beyond reasonable doubt; and
b. In either case, the judgment shall
NOTE: If given verbally, it is incomplete. (People determine if the act or omission from which
v. Catolico, G.R. No. L-31260, 29 Feb. 1972) An the civil liability might arise did exist. (Sec.
oral dismissal of a criminal case does not attain 2, Rule 120, ROC, as amended)
the effect of judgment of acquittal. So that it is
still within the powers of the judge to set aside Penalties in the alternative
and enter another order. This is so because the
order of dismissal must be written and signed Q: Can the courts impose penalties in the
by the judge. (Abay, Sr. v. Garcia, G.R. No. L- alternative?
66132, 27 June 1988)
A: NO. It is true that under many of the provisions of
2. Personally and directly prepared by the judge; the penal law, the court has the discretion or
3. Signed by the judge; and alternative of imposing one or another of different
penalties; but certainly it cannot be argued that,
because the judge has the discretion of fixing one or

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Remedial Law
another penalty, he can impose both in the the transcript. It does not violate due process.
alternative. He must fix positively and with (People v. Badon, G.R. No. 126143, 10 June 1999)
certainty the particular penalty. (U.S. vs. Chong Ting,
G.R. No. 7259, 02 Sept. 1912) Variance doctrine
Award of indemnity to offended party in spite of GR: An accused can be convicted of an offense only
acquittal when it is both charged and proved.
In case of acquittal, unless there is a clear showing XPN: When the offense as charged is included in or
that the act from which the civil liability might arise necessarily includes the offense proved, the accused
did not exist, the judgment must make a finding on shall be convicted of the offense proved which is
the civil liability of the accused in favor of the included in the offense charged, or of the offense
offended party. (Sec. 2, par. 2, Rule 120, ROC, as charged which is included in the offense proved.
amended) (Sec. 4, Rule 120, ROC, as amended)
Remedies when the judgment fails to award civil NOTE: The accused can be convicted of an offense
liability: only when it is both charged and proven.
1. Appeal; The mere fact that the evidence presented would

2. Certiorari; or indicate that a lesser offense outside the court’s
3. Mandamus. jurisdiction was committed does not deprive the
court of its jurisdiction, which had vested in it under
Duplicitous complaint or information the allegations in the information. (People v. Ocaya,
G.R. No. L-47448, 17 May 1987)
When two or more offenses are charged in a single
complaint or information but the accused fails to Q: When does an offense include or is included
object to it before trial, the court may convict him of in another?
as many offenses as are charged and proved, and
impose on him the penalty of each offense, setting A: An offense charged necessarily includes that
out separately the findings of the fact and law in which is proved when some of the essential
each offense. (Sec. 3, Rule 120, ROC, as amended) The elements or ingredients of the former, as this is
failure to object is tantamount to a waiver. alleged in the complaint or information, constitutes
the latter. An offense charged is necessarily
Judgment rendered by judge who did not hear included in the offense proved, when the essential
the case ingredients of the former constitute or form a part
of those constituting the latter. (Sec. 5, Rule 120,
The SC clarified that the fact that the trial judge who ROC, as amended)
rendered judgment was not the one who had the
occasion to observe the demeanor of the witnesses Q: The information alleges “force and
during trial, but merely relied on the records of the intimidation” as the mode of commission, while
case, does not render the judgment erroneous, the victim testified during the trial that she was
especially where the evidence on record, is asleep at the time it happened and only awoke
sufficient to support its conclusions. (People v. to find the male organ of the accused inside her
Alfredo, G.R. No. 188560, 15 Dec. 2010) mouth. Is the variance fatal to the conviction of
the accused for rape by sexual assault?
The judge who presided over the entire trial would
be in a better position to ascertain the truth or A: NO. A variance in the mode of conviction of the
falsity of the testimonies. But the judge who only offense is binding upon the accused if he fails to
took over can render a valid decision by relying on object the evidence showing that the crime was
committed in a different manner than what was

Criminal Procedure
alleged. In this case, the accused did not object to the Difference between a judgment and a ratio
presentation of evidence showing that the crime decidendi
was committed in a different manner than what was
stated in the information. The variance is not bar to A judgment pronounces the disposition of the case;
his conviction of the crime charged in the while a ratio decidendi provides the basic reason
information. (People v. Corpuz, G.R. No. 168101, 13 for such determination.
Feb. 2006)
Final Order vs. Interlocutory Order
Effect of the judgment of conviction upon a
minor FINAL ORDER INTERLOCUTORY
ORDER
GR: The courts shall promulgate the sentence and It disposes of the It is issued by the court
ascertain any civil liability which the accused may whole subject matter when the proceeding is
have incurred. The sentence, however, shall be or terminates a not yet terminated
suspended without need of application pursuant to particular issue because not all matters
PD 603 or the Child and Youth Welfare Code. In leaving nothing to be of the proceedings have
which case, the child shall have been committed done but to enforce been finished.
under the care of the DSWD or any other accredited by execution what
government institution until he reaches the age of has been determined.
21 or until the court so determines. (Sec. 40, R.A. No.
8344, Juvenile Justice and Welfare Act of 2006) PROMULGATION OF JUDGMENT; INSTANCES OF
PROMULGATION OF JUDGMENT IN ABSENTIA
XPNs: There is no suspension of sentence when
such minor offender: Promulgation of judgment
1. Has enjoyed previous suspension of sentence; It is the official proclamation or announcement of

2. Is convicted of a crime punishable by death or judgment. It is promulgated by reading it in the
life imprisonment; presence of the accused and any judge of the court
3. Is convicted by a military tribunal; or which it was rendered, or when the judgment is one
4. Is already of age at the time of sentencing even of conviction for a light offense, in the presence of
if he was a minor at the time of the commission the accused’s counsel or representative. (Sec. 6, Rule
of the crime. (Declarador v. Gubaton, G.R. No. 120)
159208, 18 Aug. 2006)
Authority to promulgate the judgment
Rule if the minor already reached the age of
majority upon the promulgation of his sentence GR: The judge of the court who renders the
judgment.
He is no longer entitled to the suspension of
sentence. However, the time he spent during the XPNs:
period of his confinement shall be credited to his 1. When the judge is absent or outside the
actual service of sentence. Furthermore, he shall province or city – Judgment may be
still be entitled to the privileged mitigating promulgated by the clerk of court; and
circumstance of minority. (People v. Francisco, G.R. 2. When the accused is confined or detained in
No. 102976, 25 Oct. 1995; R.A. No. 9344, Juvenile another province or city – Judgment may be
Justice and Welfare Act of 2006) promulgated by the executive judge of the RTC
having jurisdiction over the place of
confinement or detention. (Sec. 6, Rule 120, ROC,
as amended)

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Remedial Law
NOTE: When it is not merely physical absence of the However, the accused may surrender and file a
judge who penned the decision, but the cessation or motion for leave of court to avail of these remedies
termination of his incumbency as such judge, there within 15 days from the promulgation of judgment.
is no judgment validly entered in such a case. (Ong If such motion is granted, he may avail of these
Siu vs. Paredes, G.R. No. L-21638, 26 July 1966) remedies within 15 days from notice of such order
granting the motion. (Sec. 6, Rule 120, ROC, as
Sin perjuicio judgment amended) He must however, state the reasons for
his absence at the promulgation and prove that his
It is a judgment without a statement of the facts in absence was for a justifiable cause.
support of its conclusion to be later supplemented
by the final judgment. This practice is discouraged Instances when judgment may be promulgated
by the courts. (Dizon v. Lopez, A.M. No. RTJ-96-1338, even if the accused is not present
05 Sept. 1997) This is a practice which should not be
followed and cannot be looked upon with favor. 1. A judgment of acquittal; and
(Director of Lands v. Sanz, 45 Phil. 117, 31 Aug. 1923) 2. Judgment is for a light offense, in which case
judgment may be promulgated in the presence
Notice of promulgation to the accused of the counsel for the accused or a
representative
The proper clerk of court shall give notice to the
accused requiring him or to be present at the Modification of judgment
promulgation of the decision:
A judgment of conviction may, upon motion of the
1. personally; accused, be modified or set aside before it becomes
2. through his bondsman or warden and counsel; final or before appeal is perfected. (Sec. 7, Rule 120)
or
3. notice shall be served at his or her last known Thus, a modification of the judgment must be upon
address, if the accused tried in absentia because motion of the accused. It cannot be done on the
he jumped bail or escaped from prison court’s own motion.
How promulgation is made when the accused is NOTE: A judgment of acquittal becomes final
absent despite notice immediately after promulgation and cannot be
recalled for correction or amendment. (People v.
The promulgation shall still be made by: Sison, G.R. No. L-11669, 30 Jan. 1959)
1. Recording such judgment in the criminal INSTANCES WHEN JUDGMENT BECOMES FINAL
docket; and
2. Serving him a copy thereof at his last known A judgment becomes final:
address or through his counsel.
1. After the lapse of time for perfecting an appeal;
Effects of the absence of the accused in the
promulgation of judgment; remedies NOTE: In case the death penalty is imposed, the
CA shall automatically review the judgment
If judgment is one of conviction and the accused is before it becomes final.
absent without justifiable cause, the court shall
order his arrest and he shall lose the remedies 2. When the sentence has been partially or totally
available in the rules against the judgment and his satisfied;
bail shall be forfeited. 3. When the accused has expressly waived in
writing his right to appeal; or
4. When the accused has applied for probation.

Criminal Procedure
NOTE: Applying for probation is necessarily

deemed a waiver of one’s right to appeal. L. MOTION FOR NEW TRIAL OR
Appeal and probation are mutually exclusive RECONSIDERATION
remedies. Implicit in an application for (RULE 121)
probation is an admission of guilt. (Enrique
Almero v. People, G.R. No. 188191, 12 Mar. 2014)
(2012 BAR)
Period to file a Motion for New Trial or Motion
for Reconsideration
Entry of Judgment
It should be filed with the trial court within 15 days

The recording of the judgment or order in the book
from the promulgation of the judgment. If an appeal
of entries of judgments shall constitute its entry.
has already been perfected, a motion for new trial
The record shall contain the dispositive part of the
on the ground of newly discovered evidence maybe
judgment order and shall be signed by the clerk,
filed in the appellate court.
with a certificate that such judgment or order has
become final and executory. (Sec. 2, Rule 36, ROC, as
A new trial or reconsideration may be granted at
amended)
any time before the judgment of conviction becomes
final:
Finality of judgment vs. Entry of judgment
1. On motion of the accused; or
The finality of the judgment is entirely distinct from
2. On motion of the court but with consent of the
its entry and the delay in the latter does not affect
accused.
the effectivity of the former, which is counted from
the expiration of the period to appeal. (Munnez vs.
Form of a motion for new trial or
CA, G.R. No. L-46040, 23 July 1987)
reconsideration
Remedies before the judgment of conviction

The motion must:
becomes final
1. Be in writing;
Before the judgment of conviction becomes final,
2. Be filed in court;
the convicted accused may avail of certain remedies,
3. State the grounds on which it is based; and
to wit:
4. If the motion for new trial is based on newly
discovered evidence, it must be supported by
a. Modification of judgment (Sec. 7, Rule 120, ROC,
the affidavits of the witness by whom such
as amended)
evidence is expected to be given or duly
b. Reopening of the proceedings (Sec. 24, Rule 119,
authenticated copies of documents which it is
Rules of Court)
proposed to introduce in evidence. (Sec. 4, Rule
c. Motion for New Trial (Sec. 1, Rule 121, ROC, as
amended)
d. Motion for Reconsideration (Sec. 1, Rule 120,
NOTE: While the rule requires that an affidavit of
ROC, as amended)
merit be attached to support a motion for new trial
e. Appeal from the judgment (Rule 122, ROC, as
based on newly discovered evidence, the rule also
amended)
allows that the defect of lack of affidavit of merit
may be cured by the testimony under oath of the
defendant at the hearing of the motion. (Paredes v.
Borja, G.R. No. L-15559, 29 Nov. 1961)

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Remedial Law
Notice of the motion for new trial or reconsideration NOTE: The principle underlying this rule is to afford
shall be given to the prosecutor. (Sec. 4, Rule 121, the trial court the opportunity to correct its own
ROC, as amended) mistakes and to avoid unnecessary appeals from
being taken.
GROUNDS FOR NEW TRIAL
REQUISITES BEFORE A NEW TRIAL MAY BE
New trial GRANTED ON GROUND OF NEWLY DISCOVERED
EVIDENCE (Berry Rule)
Rehearing of a case already decided but before the
judgment of conviction therein rendered has 1. The evidence was discovered after trial;
become final, whereby errors of law or 2. Such evidence could not have been discovered
irregularities are expunged from the record or new and produced at the trial even with the exercise
evidence is introduced, or both steps are taken. of reasonable diligence;
3. It is new and material, not merely cumulative,
NOTE: A hearing shall be conducted when the corroborative or impeaching; and
motion for new trial calls for a resolution of a 4. The evidence is of such a weight that it would
question of fact. The court may hear evidence on the probably change the judgment if admitted.
motion by affidavits or otherwise. (Sec. 5, Rule 121, (Tadeja v. People, G.R. No. 145336, 20 Feb. 2013)
ROC, as amended)
NOTE: The most important requisite is that the
Grounds evidence could not have been discovered and
produced at the trial even with reasonable
1. Errors of law have been committed during the diligence; hence, the term “newly discovered.”
trial; (Ibid.)
2. Irregularities prejudicial to the substantial
rights of the accused have been committed It must be of weighty influence and will affect
during the trial; or the result of the trial. (People v. Alfaro, G.R. Nos.
3. New and material evidence has been 136742-43, 30 Sept. 2003)
discovered which the accused could not, with
reasonable diligence, have discovered and Q: May errors or ignorance of counsel be a
produced at the trial and which if introduced ground for new trial or reconsideration?
and admitted would probably change the
judgment. (Sec. 2, Rule 121, ROC, as amended) A: GR: Mistakes or errors of counsel in the conduct
of his case are not grounds for new trial. This rule is
GROUNDS FOR RECONSIDERATION the same whether the mistakes are the result of
ignorance, inexperience, or incompetence.
Reconsideration
XPN: If the incompetence, ignorance or
May be filed in order to correct errors of law or fact inexperience of counsel is so great and the error
in the judgment. It does not require any further committed as a result thereof is so serious that the
proceeding. client, who otherwise has a good cause, is
prejudiced and denied his day in court, the litigation
Grounds may be reopened to give the client another chance
to present his case. (Abrajano v. CA, G.R. No. 120787,
1. Errors of law in the judgment which requires no 13 Oct. 2000)
further proceedings; or
2. Errors of fact in the judgment which requires no A motion for a new trial may be granted on a ground
further proceedings. (Sec. 3, Rule 121, ROC, as not specifically provided in the rules, provided that
amended) it is sought in the interest of justice. The relief of a
new trial may be granted to client who has suffered

Criminal Procedure
by reason of his/her counsel’s gross mistake and EFFECTS OF GRANTING A NEW TRIAL OR
negligence. (People v. Almendras, G.R. No. 145915, 24 RECONSIDERATION
Apr. 2003)
In all cases, when the court grants a new trial or
Recantation vs. Desistance reconsideration, the original judgment shall be set
aside or vacated and a new judgment rendered
RECANTATION AFFIDAVIT OF accordingly.
DESISTANCE
A witness who The complainant The other effects would depend upon the ground
previously gave a states that he did not availed of in granting the new trial or
testimony subsequently really intend to reconsideration, thus:
declares that his institute the case and
statements are untrue he is no longer 1. Errors of law or irregularities committed
publicly. (People v. interested in during the trial
Ballabare, G.R. No. testifying or
108871, 19 Nov. 1996) prosecuting. a. All proceedings and evidence not affected
It is not by itself a by such errors and irregularities shall
ground for dismissal stand;
GR: It is not a ground for
of the action. (People b. Those affected shall be set aside and taken
granting a new trial and
v. Ramirez, G.R. Nos. anew; and
are hardly given weight
150079-80, 10 June c. In the interest of justice, the court may
2004) allow the introduction of additional
XPN: When there is no
evidence.
evidence sustaining the
It is merely an
judgment of conviction
additional ground to 2. Newly discovered evidence
other than the
buttress the defense
testimony of the
and not a sole a. The evidence already taken shall stand; and
recanting witness. (Tan
consideration for b. Newly discovered and other evidence as
Ang Bun v. CA, G.R. No. L-
acquittal. (People v. the court may, in the interest of justice,
47747, 15 Feb. 1990)
Ballabare, G.R. No. allow to be introduced, shall be taken and
108871, 19 Nov. 1996) considered together with the evidence
already in the record. (Sec. 6, Rule 121, ROC,
New trial vs. Reopening of the case as amended)
NEW TRIAL RE-OPENING OF THE NOTE: The effect of granting a new trial is not to
CASE acquit the accused of the crime of which the
Filed after judgment is Made by the court judgment finds him guilty but precisely to set aside
rendered but before before the judgment is said judgment so that the case may be tried de novo
the finality thereof. rendered in the as if no trial had been had before.
exercise of sound
discretion. APPLICATION OF NEYPES DOCTRINE IN
Made by the court on Does not require the CRIMINAL CASE
motion of the accused consent of the accused;
or at its own instance may be at the instance The Neypes rule (Fresh Period Rule)
but with the consent of of either party who can
the accused. thereafter present The period for appeal is not only within 15 days
additional evidence. from notice of the judgment but also within 15 days
from notice of the final order appealed from.

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Remedial Law
NOTE: A fresh period of 15 days to appeal is counted Search warrant

from the denial of the motion for reconsideration or
new trial. (Neypes v. CA, G.R. No. 141524, 14 Sept. 1. An order in writing issued in the name of the
2005) People of the Philippines;
2. Signed by a judge; and
The raison d’être for the "fresh period rule" is to 3. Directed to a peace officer, commanding him to:
standardize the appeal period provided in the Rules
and do away with the confusion as to when the 15- a. Search for personal property described
day appeal period should be counted. therein; and
b. Bring it before the court. (Sec. 1, Rule 126,
The new rule aims to regiment or make the appeal ROC, as amended)
period uniform, to be counted from the receipt or
the order denying the motion for new trial, motion The power to issue such search warrants is
for reconsideration (whether full or partial) or any exclusively vested with the trial judges in the exercise
final order of resolution. (Neypes v. Court of Appeals, of their judicial functions. (Skechers, USA v. Inter
G.R. No. 141524, 14 Sept. 2005) Pacific Industrial Trading Corporation, G.R. No.
164321, 30 Nov. 2006)
M. SEARCH AND SEIZURE NOTE: The warrant must name the person upon
(RULE 126) whom it is to be served except in those cases where
it contains a descriptio personae such as will enable
the officer to identify the person. The description
must be sufficient to indicate clearly the proper
NATURE OF SEARCH WARRANT
person upon whom it is to be served. (People v.
Veloso, G.R. No. L-23051, 20 Oct. 1925)
It is in the nature of a criminal process and may be
General warrant
invoked only in furtherance of public prosecutions.
Search warrants have no relation to civil process or
A general warrant is defined as a search or arrest
trials and are not available to individuals in the
warrant that is not particular as to the person to be
course of civil proceedings, nor for the maintenance
arrested or the property to be seized. It allows the
of a mere private right. It is interlocutory in
seizure of one thing under a warrant describing
character because it leaves something more to be
another and gives the officer executing the warrant
done, which is the determination of the guilt of the
the discretion over which items to take.
accused.
Such discretion is abhorrent, as it makes the person,

It is not a proceeding against a person but is solely
against whom the warrant is issued, vulnerable to
for the discovery and to get possession of personal
abuses. The Constitution guarantees our right
property. It is a special and peculiar remedy, drastic
against unreasonable searches and seizures, and
in nature, and made necessary because of public
safeguards have been put in place to ensure that
necessity. It resembles in some respects with what
people and their properties are searched only for
is commonly known as John Doe proceedings.
the most compelling and lawful reasons.
(Riano, 2019, citing Worldwide Web Corporation v.
(Worldwide Web Corporation v. People, G.R. No.
People, G.R. No. 161106, 13 Jan. 2014)
161106, 13 Jan. 2014)
An application for a search warrant is not a criminal

NOTE: A search warrant need not describe the
action. Hence, any aggrieved party may question an
items to be seized in precise and minute detail. The
order quashing the same without need for the
warrant is valid when it enables the police officers
conformity of the public prosecutor. (Riano, 2019)
to readily identify the properties to be seized and
leaves them with no discretion regarding the
articles to be seized. (Ibid)

Criminal Procedure
Scatter-shot search warrant Time of Service

To be served only in
It is a warrant issued for more than one offense. daytime unless the
May be served on any
(Retired SP04 Laud v. People, G.R. No. 199032, 19 Nov. affidavit alleges that the
day and at any time of
2014) It is invalid because it violates what the law property is on the
day or night.
requires in a warrant of arrest. person or in the place to
be searched.
NOTE: There must be strict compliance with the Necessity of Searching Examination
constitutional and statutory requirements. The judge must
Otherwise, it is void. No presumptions of regularity Searching examination personally conduct an
are to be invoked in aid of the process when an of witnesses is not examination of the
officer undertakes to justify it. (People v. Veloso, G.R. necessary. complainant and the
No. 23051, 20 Oct. 1925) It will always be construed witnesses.
strictly without going the full length of requiring Manner of Examination
technical accuracy. Examination must be
Judge is merely called
probing. Not enough to
Duration of the validity of a search warrant upon to examine and
merely adopt the
evaluate the report of
questions and answers
A search warrant is valid for 10 days from the date the prosecutor and the
asked by a previous
of its issue. After such time, it is void. (Sec. 10, Rule evidence.
investigator.
126, ROC, as amended) Persons/Objects to the Seized
Concerned with the
A search warrant can be used only once, thereafter Concerned with the
seizure of personal
it becomes functus officio, except when the search seizure of a person so
property subject of the
conducted on one day was interrupted, in which he may be made to
offense, stolen or
case the same may be continued under the same answer for the
embezzled property,
warrant the following day if not beyond the 10-day commission of an
fruits of the offense, or
period. offense. It involves
those intended to be
taking of a person into
used to commit an
DISTINCTIONS BETWEEN WARRANT OF custody.
offense.
ARREST AND SEARCH WARRANT Existence of a Pending Criminal Case
Does not require the
WARRANT OF SEARCH WARRANT Presupposes the
existence of a criminal
ARREST existence of a pending
case. It may be issued
Content criminal case that gave
prior to the filing of the
rise to the warrant.
Order directed to the Order in writing in the case.
peace officer to execute name of the People of
the warrant by taking the Philippines signed Distinguish search from seizure
the person stated by the judge and
therein into custody so directed to the peace Search is an examination of a man’s house or other
that he may be bound to officer to search buildings or premises or of his person for the
answer for the personal property discovery of contraband or illicit or stolen property
commission of the described therein and or some evidence of guilt to be used in the
offense. to bring it to court. prosecution of a criminal action for some offense
with which he is charged. (People v. Norris, 262 Cal.
Period of Validity App. 2d Supp. 898, 01 Apr. 1968)
Does not become stale. Valid for 10 days only. Seizure, on the other hand, is the physical taking of
a thing into custody. (Riano, 2019)

e

Remedial Law
APPLICATION FOR SEARCH WARRANT, the property or things to be seized as prescribed in

WHERE FILED the Rules of Court. The Executive Judges and the
Vice-Executive Judges concerned shall issue the
Court where an application for a search warrant warrants if justified, which may be served outside
is filed the territorial jurisdiction of said courts. (Sps.
Marimla v. People, G.R. No. 158467, 16 Oct. 2009)
GR: It should be filed with a court within whose
territorial jurisdiction the crime was committed. Q: A search warrant was issued by the RTC-La
(Sec. 2(a), Rule 126, ROC, as amended) Trinidad against Baguio Gas, whose business
presence is in Baguio, City and not in La
XPNs: Trinidad. Can RTC-La Trinidad issue said
1. For compelling reasons, any court within the warrant considering that the offenses imputed
judicial region where the crime was committed against Baguio Gas were committed outside its
if the place of the commission of the crime is territorial jurisdiction?
known, or any court within the judicial region
where the warrant shall be enforced; A: YES. The court held that power to issue search
warrant is inherent in all courts, such that the power
NOTE: Filing in such courts requires of courts to issue it where the place to be searched
compelling reasons stated in the application. is within the jurisdiction is not intended to exclude
The rule is of a mandatory nature. (Pilipinas other courts from exercising the same power.
Shell Petroleum Corporation v. Romars
International Gases Corporation, G.R. No. Section 2 of Rule 126 of the Rules of Court provides
189669, 16 Feb. 2015) that generally, the search warrant application must
be filed with the court which has territorial
2. However, if the criminal action has been filed, jurisdiction over the place where the offence was
the application shall only be made in the court alleged to be committed. However, for compelling
where the criminal action is pending (Sec. 2, reasons, which must be expressly stated in the
Rule 126, ROC, as amended); and application, it can be filed in a court other than the
one having jurisdiction. (Petron Gasul LPG Dealers
3. In case of search warrant involving heinous Association, et. al, v. Elena Lao, et. al, G.R. No. 205010,
crimes, illegal gambling, illegal possession of 18 July 2016)
firearms and ammunitions as well as violations
of the Comprehensive Dangerous Drugs Act of Ex parte application for a search warrant
2002, the Intellectual Property Code, the Anti-
Money Laundering Act of 2001, the Tariff and An application for a search warrant is heard ex
Customs Code, the Executive judges and parte. It is neither a trial nor a part of the trial.
whenever they are on official leave of absence Action on these applications must be expedited for
or are not physically present in the station, the time is of the essence. Great reliance has to be
Vice-Judges of RTCs of Manila and Quezon City accorded by the judge to the testimonies under oath
shall have the authority to act on the application of the complainant and the witnesses. (Santos v.
filed by the NBI, PNP and the Anti-Crime Task Pryce Gases, 538 SCRA 474, 487 citing Chemise
Force (ACTAF), Presidential Anti-Organized Lacoste, S.A. v. Fernandez, 214 Phil. 332)
Crime Task Force (PAOC-TF), and the Reaction
Against Crime Task Force (REACT-TF). Requisites before a search warrant may be
(Administrative Matter No. 99-10-09-SC; Sps. issued (P-O-D-E-P2-S)
Marimla v. People, G.R. No. 158467, 16 Oct. 2009)
1. It must be issued upon Probable cause;
NOTE: The application shall be personally endorsed 2. It must be in connection with One specific
by the heads of such agencies and shall particularly offense;
describe therein the places to be searched and/or

Criminal Procedure
3. Probable cause must be Determined by the writing and attach them to the record. (Mata v.
issuing judge personally; Bayona, G.R. No. L-50720, 26 Mar. 1984)
4. The judge must have personally Examined, in
the form of searching questions and answers, Q: The Municipal Police Station of M'lang, North
the applicant and his witnesses; Cotabato received a radio message about a
5. The search warrant must Particularly describe silver-gray Isuzu pickup—with plate number
or identify the property to be seized as far as the 619 and carrying three (3) people—that was
circumstances will ordinarily allow; transporting marijuana from Pikit. At around
6. The warrant issued must Particularly describe 9:30 a.m., the tipped vehicle reached the
the place to be searched and the persons or checkpoint and was stopped by the team of
things to be seized; and police officers on standby. The team leader
7. The Sworn statements together with the asked the driver about inspecting the vehicle.
affidavits submitted by witnesses must be The driver alighted and, at an officer's prodding,
attached to the record. (Prudente v. Dayrit, G.R. opened the pickup's hood. Two (2) sacks of
No. 82870, December 14, 1989) marijuana were discovered beside the engine.
An Information was filed against Sison, Yanson,
NOTE: The warrant must not have been issued and Bautista before the RTC of Cotabato City,
more than 10 days prior to the search made charging them with violation of Section 4 of the
pursuant thereto. (Sec. 10, Rule 126, ROC, as Dangerous Drugs Act of 1972. Is the search and
amended) seizure made valid?
PROBABLE CAUSE FOR THE ISSUANCE OF A: NO. Article III, Section 2 of the 1987 Constitution
SEARCH WARRANT requires a warrant to be issued by a judge before a
search can be validly effected. While there are
Probable cause, as a condition for the issuance of a exceptions to this rule, warrantless searches can
search warrant, is such reasons supported by facts only be carried out when founded on probable
and circumstances as will warrant a cautious man to cause, or “a reasonable ground of
believe that his action and the means taken in suspicion supported by circumstances sufficiently
prosecuting it are legally just and proper. (HPS strong in themselves to warrant a cautious man to
Software and Communications Corporation v. PLDT, believe that the person accused is guilty of the
G.R. No. 170217, 10 Dec. 2012) offense with which he is charged.” There must be a
confluence of several suspicious circumstances. A
It requires facts and circumstances that would lead solitary tip hardly suffices as probable cause; items
a reasonably prudent man to believe that an offense seized during warrantless searches based on
has been committed and that the object sought in solitary tips are inadmissible as evidence. (People v
connection with that offense are in the place to be Sison, G.R. No. 238453, 31 July 2019)
searched. (Ibid)
Q: Are facts discovered during surveillance
Basis of probable cause operations conducted by the authorities on the
basis of information and evidence provided by
The basis must be the personal knowledge of the the complainants constitute personal
complainant or the witnesses he may produce and knowledge which could form the basis for the
not mere hearsay. The test of sufficiency of a issuance of a search warrant?
deposition or affidavit is whether it has been drawn
in a manner that perjury could be charged thereon A: YES. The facts discovered during surveillance
and the affiant be held liable for damage caused. conducted by the NBI agents- on the basis of
information and evidence provided by petitioners -
Mere affidavits of the complainant and his witnesses constitute personal knowledge, which could form
are not sufficient. The judge has to take the the basis for the issuance of a search warrant. The
depositions of the complainant and the witnesses in surveillance and investigation conducted by an

e

Remedial Law
agent of the NBI obtained from confidential has been committed and that it was committed by
information supplied to him enabled him to gain the offender. (World Wide Web Corporation v.
personal knowledge of the illegal activities People, G.R. No. 161106, 13 Jan. 2014)
complained of. The validity of the search warrant is
sustained. (Petron LPG Dealers Association, et al. v. Q: Does the absence of probable cause on a
Nena Ang, et al., G.R. No. 199371, 03 Feb. 2016) particular article invalidate the entire search
warrant?
Factors to consider for the determination of
probable cause A: NO. Such particular article may be severed from
the rest of the search warrant, provided that the
1. Time of the application in relation to the alleged remaining parts meet the requirements of probable
offense committed. The nearer the time at cause and particularity.
which the observation of the offense is alleged
to have been made, the more reasonable the NOTE: The determination of probable cause does
conclusion of establishment of probable cause. not call for the application of rules and standards of
(Asian Surety Insurance v. Herrera, G.R. No. L- proof that a judgment of conviction requires after
25232, 20 Dec. 1973); and trial on the merits. Probable cause is concerned with
probability, not absolute or even moral certainty.
2. There must be competent proof of particular The prosecution need not present at this stage proof
acts or specific omissions but only the best beyond reasonable doubt. The standards of
evidence under the circumstances is required. judgment are those of a reasonably prudent man,
(People v. Judge Estrada, G.R. No. 124461, 26 not the exacting calibrations of a judge after a full-
Sept. 1998) blown trial. (Century Chinese Medicine Co. v. People,
G.R. No. 188526, 11 Nov. 2013)
Probable cause to arrest vs. probable cause to
search PERSONAL EXAMINATION BY JUDGE OF THE
APPLICANT AND WITNESSES
PROBABLE CAUSE TO PROBABLE CAUSE TO
ARREST SEARCH How the examination shall be conducted by the
In determining judge
probable cause to
arrest, the judge must Probable cause to search 1. Must be personally conducted by the judge;
have sufficient facts in requires facts to show 2. Must be in the form of searching questions and
his hands that would that particular things answers;
tend to show that a connected with a crime 3. The complainant and the witnesses shall be
crime has been are found in a specific examined on those facts personally known to
committed and that a location. them;
particular person 4. The statements must be in writing and under
committed it. oath; and
5. The sworn statements of the complainant and
No exact test for the determination of probable the witnesses, together with the affidavits
cause submitted, shall be attached to the record. (Sec.
There is no exact test for the determination of
probable cause in the issuance of search warrants. “Personal determination” does not mean that
It is a matter wholly dependent on the finding of judges are obliged to conduct the personal
trial judges in the process of exercising their judicial examination themselves
function. They determine probable cause based on
evidence showing that, more likely than not, a crime “Personal determination” does not mean that judges
are obliged to conduct the personal examination of

Criminal Procedure
the complainant and his witnesses themselves. To Standard for determining the legality of a
require thus would be to unduly laden them with warrant against a person
preliminary examinations and investigations of
criminal complaints instead of concentrating on The standard is whether the person has been
hearing and deciding cases filed before them. sufficiently described with particularity sufficient to
Rather, what is emphasized merely is the exclusive identify him with reasonable certainty. Even if the
and personal responsibility of the issuing judge to name is unknown or erroneously written, the
satisfy himself as to the existence of probable cause. description of the person with certainty to identify
(Borlongan v. Peña, G.R. No. 143591, 05 May 2010) him and set him apart from others is enough to lend
validity to a warrant. (United States v. Ferrone, 438
To this end, the judge may: (a) personally evaluate F.2d 381, 3d Cir. 1971)
the report and the supporting documents submitted
by the prosecutor regarding the existence of Standard for determining the legality of a
probable cause and, on the basis thereof, issue a warrant against a place to be searched
warrant of arrest; or (b) if on the basis thereof he
finds no probable cause, disregard the prosecutor’s The warrant must sufficiently describe the premises
report and require the submission of supporting to be searched so that the officer executing the
affidavits of witnesses to aid him in determining his warrant may, with reasonable effort, ascertain and
existence. What he is never allowed to do is to follow identify the place intended. (People v. Peck, 1974, 38
blindly the prosecutor’s bare certification as to the CA 3d 993, 1000, 113 CR 806)
existence of probable cause. (Ibid)
Description of a place to be searched is sufficient if
PARTICULARITY OF PLACE TO BE SEARCHED the officer with the warrant can, with reasonable
AND THINGS TO BE SEIZED effort, ascertain and identify the place intended and
distinguish it from other places in the community.
Tests to determine particularity of the place to Any designation or description known to the
be searched locality that points out the place to the exclusion of
all others, and on inquiry leads the officers
1. When the description therein is as specific as unerringly to it, satisfies the constitutional
the ordinary circumstance will allow (People v. requirement. (Retired SP04 Laud v. People, G.R. No.
Rubio, G.R. No. L-35500, 27 Oct. 1932); 199032, 19 Nov. 2014)
2. When the description expresses a conclusion of
fact, not of law which the warrant officer may Rule with respect to the time of making a search
be guided in making the search and seizure; and
3. When the things described therein are limited GR: A search warrant must be served at daytime.
to those which bear direct relation to the
offense for which the warrant is being issued. XPN: A search warrant may be made at night when
it is positively asserted in the affidavit that the
Importance of describing with particularity the property is on the person or in the place ordered to
place to be searched and the persons or things be searched. The affidavit making such assertion
to be seized must itself be sufficient as to the fact so asserted, for
if the same is based upon hearsay, the general rule
The purpose of the rule is to leave the officers of the shall apply. A search warrant conducted at night
law with no discretion regarding what articles they without direction to that effect is an unlawful
shall seize, to the end that “unreasonable searches search. The same rule applies where the warrant
and seizures” may not be made that abuses may not left blank the “time” for making the search.
be committed. (Stonehill v. Diokno, G.R. No. L-19550,
19 June 1967) Where a search is to be made during the nighttime,
the authority for executing the same at that time
should appear in the directive on the face of the

e

Remedial Law
search warrant. (Asian Surety v. Herrera, G.R. No. L- 3. In their absence, in the presence of 2 witnesses
25232, 20 Dec. 1973) of sufficient age and discretion residing in the
same locality. (Sec. 8, Rule 126, ROC, as
Q: May the implementation of the search amended)
warrant be done on different days?
NOTE: A public officer or employee who exceeds his
A: YES. It could be served at any time within its 10- authority or uses unnecessary severity in executing
day lifetime, and if its object or purpose cannot be the warrant is liable under Art. 129, RPC.
accomplished in one day, the same may not be used
for a different purpose on each day. After the Search in presence of two witnesses
articles for which the warrant was issued have been
seized, the same warrant cannot be utilized as No search of a house, room, or any other premises
authority to make another search. (Gorospe, 2006, shall be made except in the presence of the lawful
citing Uy Kheytin v. Villareal, 42 Phil. 886) occupant thereof or any member of his family or in
the absence of the latter, two witnesses of sufficient
The time must not be one which is intrusive or age and discretion residing in the same locality. (Sec.
violative of one’s privacy, like at the middle of the 8, Rule 126, ROC, as amended)
night. Then, too, depending on the locality, what
may be reasonable time in one place would not be Right to break door or window to effect search
so in some other cases. (Gorospe, 2006)
The officer, if refused admittance to the place of
Service of the search warrant directed search after giving notice of his purpose
and authority, may break open any outer or inner
Generally, officers executing a search must do the door or window of a house or any part of a house or
following acts: anything therein to execute the warrant to liberate
himself or any person lawfully aiding him when
1. Announce their presence; unlawfully detained therein. (Sec. 7, Rule 126, ROC,
2. Identify themselves to the accused and to the as amended)
persons who rightfully have possession of the
premises to be searched; “Knock and announce” principle
3. Show to them the search warrant; and
4. Explain the warrant in a language or dialect An officer should knock, introduce himself and
known and understood by them. (People v. announce his purpose and only in exceptional cases
Huang Zen Hua, G.R. No. 139301, 29 Sept. 2004) may he forego the same, like when his safety is in
danger of being jeopardized or when evidence is
Rules to be observed in case of search of a house about to be destroyed. (Wilkinson v. Arkansas, 514
or room U.S. 927)
In order to ensure that the execution of the warrant A lawful entry is the indispensable predicate of a
will be fair and reasonable, and in order to insure reasonable search. A search would violate the
that the officer conducting the search shall not constitutional guarantee against unreasonable
exceed his authority or use unnecessary severity in search and seizure if the entry was illegal, whether
executing the search warrant, as well as for the accomplished by force, or by threat or show of force
officer’s own protection against unjust accusations, or obtained by stealth, or coercion.
it is required that the search be conducted in the
presence of the:
1. Lawful occupant of the place to be searched;

2. Any member of his family; or

Criminal Procedure
Instances when an unannounced intrusion into transported from place to place are deemed to be
the premises is permissible personal property. Considering that human remains
can generally be transported from place to place,
1. A party whose premises or is entitled to the considering further that they qualify under the
possession thereof refuses, upon demand, to phrase “subject of the offense” given that they prove
open it; the crime’s corpus delicti, it follows that they may be
2. Such person in the premises already knew of valid subjects of a search warrant. (Laud v People,
the identity of the officers and of their authority G.R. No. 199032, 19 Nov. 2014)
and persons;
3. The officers are justified in the honest belief EXCEPTIONS TO SEARCH WARRANT
that there is an imminent peril to life or limb; or REQUIREMENT
4. Those in the premises, aware of the presence of
someone outside, are then engaged in activity GR: The procurement of a warrant is required
which justifies the officers to believe that an before a law enforcer can validly conduct a search
escape or the destruction of evidence is being and seizure.
attempted.
XPNs: Instances of a valid warrantless search
NOTE: The exceptions above are not exclusive or
conclusive. There is no formula for the 1. Search incident to lawful arrest;
determination of reasonableness. Each case is to be 2. Consented search (waiver of right);
decided on its own facts and circumstances. (People 3. Search of moving vehicle (Caroll doctrine);
v. Huang Zhen Hua, G.R. No. 139301, 29 Sept. 2004) 4. Checkpoints; body checks in airports;
5. Plain view doctrine;
PERSONAL PROPERTY TO BE SEIZED 6. Stop and frisk situations (Terry doctrine);
7. Enforcement of custom laws;
The property subject of a search warrant is personal 8. Immediate control test;
property. A search warrant may be issued for search 9. Exigent and emergency circumstances; and
and seizure of the following: 10. Inspection of buildings and other premises for
the enforcement of fire, sanitary, and building
1. Personal property subject of the offense; regulations.
2. Personal property stolen or embezzled and
other proceeds, or fruits of the offense; or 1. Search incident to lawful arrest
3. Personal property used or intended to be used
as a means of committing an offense. This includes searching the person who is arrested,
in order to find and seize the things connected with
NOTE: It is not required that the property to be the crime as fruits or as the means by which it was
seized should be owned by the person against committed.
whom the search warrant is directed. It is sufficient
that the person against whom the warrant is NOTE: In searches incident to lawful arrest, the
directed has control or possession of the property arrest must precede the search and the process
sought to be seized. (Burgos v. Chief of Staff, G.R. No. cannot be reversed, unless, the police officers have
L-65332, 26 Dec. 1984) probable cause to make the arrest at the outset of
the search. (People v. Nuevas, G.R. No. 170233, 22
Human remains as subject of a search warrant Feb. 2007)
Human remains can be a subject of a search Parameters of a search incident to a lawful

warrant, since “personal property” refers to the arrest; immediate reach and control rule
thing’s mobility, and not its capacity to be owned or
alienated by a particular person. Article 416 of the Sec. 13 of Rule 126 of the Revised Rules on Criminal
Civil Code states that all things which can be Procedure specially enumerates the allowable

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Remedial Law
scope of a search incident to a lawful arrest. The Use of thermal imaging device
provision limits the search to the following:
“Where the government uses a device that is not in
1. Dangerous weapons; general public use, to explore details of a private
2. Anything which may have been used in the home that would previously have been unknowable
commission of an offense; and without physical intrusion, the surveillance is a
3. Anything which constitute proof in the Fourth Amendment “search,” and is presumptively
commission of an offense. unreasonable without a warrant.” (Kyllo v. U.S., 533
U.S. 27, 11 June 2001)
Purpose
3. Search of moving vehicle; Carroll Doctrine
1. To ensure the officer’s safety;
2. To prevent the frustration of the arrest itself; Search of moving vehicles or Carroll Doctrine can be
and validly made without a search warrant. A search
3. To prevent the concealment or destruction of warrant may readily be obtained when the search is
the evidence. made in a store, dwelling house or other immobile
structure. But it is impracticable to obtain a warrant
2. Consented Search when the search is conducted on a mobile ship, on
an aircraft, or in other motor vehicles since they can
Consent cannot be presumed simply because the quickly be moved out of the locality or jurisdiction
accused failed to object to the search. To constitute where the warrant must be sought. (People v.
a waiver, the following requisites must concur: Mariacos, G.R. No. 188611, 16 June 2010)
1. The right exists; Peace officers in such cases, however, are limited to
2. The person involved had knowledge, actual or routine checks where the examination of the vehicle
constructive, of the existence of such rights; and is limited to visual inspection. When a vehicle is
3. Actual intention to relinquish such rights. stopped and subjected to an extensive search, such
(People v. Burgos, G.R. No. 92739, 02 Aug. 1991) would be constitutionally permissible only if the
officers made it upon probable cause, i.e., upon a
NOTE: A peaceful submission to a search or seizure belief, reasonably arising out of circumstances
is not consent or an invitation thereto but is merely known to the seizing officer, that an automobile or
a demonstration of regard for the supremacy of the other vehicle contains as item, article or object
law. (People vs. Nuevas, G.R. No. 170233, 22 Feb. which by law is subject to seizure and destruction.
2007) (People v. Libnao, G.R. No. 136860, 20 Jan. 2003)
Canine/Dog sniff test Q: A police officer received an information from

an asset regarding the alleged purchase of shabu
The canine sniff test was applied by the Supreme by suspected drug dealers Evardo and Algozo,
Court of the United States differently depending on who were already in the police watch list and
the place where the sniff was done as when the were the subject of prior police operations. The
same was conducted in a private resident, airport, police officers set up their checkpoint. In the
highway or in routine traffic stops. course thereof, the team flagged down a tricycle,
with Evardo and Algozo seated at the tricycle’s
The government’s use of trained dogs to investigate sidecar. Thereafter, the officer allegedly saw
the home and its surroundings is a “search” within Algozo place something in the rolled-up rain
the meaning of the Fourth Amendment. (Riano, cover of the sidecar. He then went to retrieve it
2019) and recovered seven plastic sachets containing
a white crystalline substance. Subsequently,
Evardo and Algozo were asked to disembark.
The police asked for Algozo’s wallet, which

Criminal Procedure
Algozo gave, and frisked him after. Upon luggage are routinely subjected to x-ray scans.
frisking, they found 11 more plastic sachets Should these procedures suggest the presence of
containing a white crystalline substance inside suspicious objects, physical searches are conducted
his wallet. While Evardo was alighting as to determine what the objects are. (People v.
instructed, a police officer saw another sachet Johnson, G.R. No. 138881, 18 Dec. 2000)
tucked at the edge of the garter of Evardo’s
underwear. Thereafter, the accused were There is little question that such searches are
arrested. Were the search, seizure, and arrest reasonable, given their minimal intrusiveness, the
conducted by the police officers at the gravity of the safety interests involved, and the
checkpoint valid? reduced privacy expectations associated with
airline travel. Indeed, travelers are often notified
A: NO. A warrantless search of a moving vehicle through airport public address systems, signs, and
cannot be premised solely on an initial tip. It must notices in their airline tickets that they are subject
be found on probable cause where “there must be a to search and, if any prohibited materials or
confluence of several suspicious circumstances.” As substances are found, such would be subject to
for the cause of the search, each such circumstance seizure. These announcements place passengers on
must occur before the search is commenced. notice that ordinary constitutional protections
Further, they must each be independently against warrantless searches and seizures do not
suspicious. Thus, when law officers are predisposed apply to routine airport procedures. (Ibid)
to perceive guilt – as when specific persons are
targets of checkpoints, patrols, and similar 5. Plain view doctrine
operations – their subjective perception cannot
anchor probable cause. Objects falling in the plain view of an officer has a
right to be in the position to have that view are
Moreover, independently of the tip conveyed to a subject to seizure and may be presented as
police officer, there was no “confluence of several evidence.
suspicious circumstances” that were “sufficiently
strong in themselves” to justify a search more For the doctrine to apply, the following requisites
intensive than a mere visual survey. Any item must be met:
subsequently obtained cannot be the basis of any
further legal act, including arrest, prosecution, and 1. Prior valid intrusion based on the valid
conviction for criminal liability. (Virgilio Evardo y warrantless arrest in which the police are
Lopena v. People, G.R. No. 234317, 10 May 2021) legally present in the pursuit of their official
duties;
4. Checkpoints; body checks in airports 2. Evidence was inadvertently discovered by the
police who had the right to be where they are;
Searches conducted in checkpoints are valid for as 3. Evidence must be immediately apparent; and
long as they are warranted by the exigencies of 4. “Plain view” justified mere seizure of evidence
public order and are conducted in a way least without further search. (People v. Mariacos, G.R.
intrusive to motorists. For as long as the vehicle is No. 188611, 21 June 2010)
neither searched nor its occupants subjected to a
body search, and the inspection of the vehicle is The ‘Inadvertence’ requirement under the plain
limited to a visual search, said routine checks cannot view doctrine
be regarded as violative of an individual’s right
against unreasonable search. (People v. Vinecario, It means that the officer must not have known in
G.R. No. 141137, 20 Jan. 2004) advance of the location of the evidence and intend
to seize it. Discovery should not be anticipated.
In body checks in airports, passengers attempting to (United Laboratories v. Isip, G.R. No. 163858. 28 June
board an aircraft routinely pass through metal 2005)
detectors; their carry-on baggage as well as checked

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Remedial Law
The plain view doctrine does not apply where Terry Doctrine
officers did not just accidentally discover the
evidence but actually searched for it. The plain view A valid “stop” by an officer requires that he has a
doctrine may not be used to launch unbridled reasonable and articulable belief that criminal
searches and indiscriminate seizures or to extend a activity has happened or is about to happen. The
general exploratory search made solely to find “frisk” made after the “stop” must be done because
evidence of defendant’s guilt. (Valeroso v. CA, G.R. of a reasonable belief that the person stopped is in
No. 164815, 03 Sept. 2009) possession of a weapon that will pose danger to the
officer and others. The “frisk” must be a mere pat
In the course of the lawful intrusion, the officer down outside the person’s outer garment and not
came inadvertently across a piece of evidence unreasonably intrusive. (Riano, 2019)
incriminating the accused. The object must be open
to eye and hand and its discovery inadvertent. Existence of a genuine reason under the Terry
(Miclat v. People, G.R. No. 176077, 31 Aug. 2011; Doctrine
People v. Chi Chan Liu, G.R. No. 189272, 21 Jan. 2015)
What is essential is that a genuine reason must exist,
The “Immediately apparent” requirement under in light of the police officer’s experience and
the plain view doctrine surrounding conditions, to warrant the belief that
the person who manifests unusual suspicious
To be immediately apparent, the rule does not conduct has weapons or contraband concealed
require an unduly high degree of certainty as to the about him. (Esquillo v. People, G.R. No. 182010, 25
incriminating character of the evidence. “It requires Aug. 2010)
merely that the seizure be presumptively
reasonable assuming that there is probable cause to Dual purpose of the stop-and-frisk principle
associate the property with criminal activity; that a
nexus exists between a viewed object and criminal The “stop-and-frisk” practice serves a dual purpose:
activity.” (United Laboratories v. Isip, G.R. No.
163858, 28 June 2005) 1. the general interest of effective crime
prevention and detection; and
6. Stop and frisk operations 2. the more pressing interest of safety and self-
preservation which permit the police officer to
This is a limited protective search of the outer take steps to assure himself that the person
clothing of a person to determine the presence of with whom he deals is not armed with a deadly
weapons. Probable cause is not required, but a weapon that could be used against him.
genuine reason (not mere suspicion) must exist, in (Esquillo v. People, G.R. No. 182010, 25 Aug.
the light of the officer’s experience and surrounding 2010)
circumstances, to warrant the belief that the
persons has concealed weapons. (Malacat v. Court of NOTE: The officer may search the outer clothing of
Appeals, G.R. No. 123595, 12 Dec. 1997) the person in an attempt to discover weapons which
might be used to assault him. (Manalili v. CA, G.R. No.
Its object is either to: 113447, 09 Oct. 1997)
1. Determine the identity of a suspicious Q: The search warrant authorized the seizure of
individual; or “undetermined quantity of shabu.” During the
2. Maintain the status quo momentarily while the service of the search warrant, the raiding team
police officer seeks to obtain more information. also recovered a kilo of dried marijuana leaves
wrapped in newsprint. The accused moved to
suppress the marijuana leaves as evidence for
the violation of Sec. 11 of the Comprehensive
Dangerous Drugs Act of 2002 since they were

Criminal Procedure
not covered by the search warrant. The State office/building was precipitated by an
justified the seizure of the marijuana leaves intelligence report that said office was being
under the “plain view” doctrine. There was no used as headquarters by the RAM. Also, the
indication of whether the marijuana leaves were surveillance team, before the raid, was fired
discovered and seized before or after the upon by the people inside. The raiding team had
seizure of the shabu. If you are the judge, how no opportunity to apply for warrant as the court
would you rule the motion to suppress? (2008 then was closed. (People v. de Gracia, G.R. Nos.
BAR) 102009-10, 06 July 1994)
A: It should be granted. The search warrant violates b. Buy-bust operation - This is a form of
the constitutional and statutory requirement that entrapment legally employed by peace officers
should particularly describe the person or things to as an effective way of apprehending drug
be seized. (Sec. 2, Art. III, 1987 Constitution; Sec. 2, dealers in committing an offense. There is no
Rule 126, ROC, as amended) need for a search warrant because the accused
is caught in flagrante delicto.
The “plain view” doctrine cannot be invoked
because the marijuana leaves were wrapped in c. Private searches – In a case where the
newsprint. Besides the marijuana leaves are not the evidence was obtained by a private person
subject of the search warrant. There was no acting in a private capacity, while performing
evidence as to whether the marijuana leaves were company standard operating procedures and
discovered and seized before or after the seizure of without state participation and intervention. It
the shabu. If they were discovered after the seizure was held that the constitutional rights cannot
of the shabu, then they could not have been seized be invoked when there is no government
in plain view. The confiscation of the marijuana interference. (People v. Marti, G.R. No. 81561, 18
leaves must not be upheld, hence rendering the Jan. 1991)
same inadmissible in evidence against the accused.
d. Immediate control test – search incidental to
7. Enforcement of custom laws a lawful warrantless arrest may extend beyond
the person where the exigencies of the situation
The Collector of Customs is authorized to effect justify a warrantless search for dangerous
searches and seizure for the enforcement of weapons and to prevent the arrestee from
customs duties and tariff laws. (General Travel destroying evidence of the crime within reach.
Services v. David, G.R. No. L-19259, 23 Sept. 1966) (People v. Musa, G.R. No. 95329, 27 Jan. 1993)
The RTCs are devoid of any competence to pass Effect of an illegal search and seizure (Fruit of
upon the validity or regularity of seizure and the poisonous tree doctrine)
forfeiture proceedings conducted by the Bureau of
Customs and to enjoin or otherwise interfere with Any evidence obtained in violation of this or the
these proceedings. It is the Collector of Customs, preceding section shall be inadmissible for any
sitting in seizure and forfeiture proceedings, who purpose in any proceeding. (Sec. 3[2], Art. 3, 1987
has exclusive jurisdiction to hear and determine all Constitution)
questions touching on the seizure and forfeiture of
dutiable goods. (Asian Terminals, Inc. v. Bautista- The effect of an illegal search and seizure is the
Ricafort, G.R. No. 166901, 27 Oct. 2006) exclusion of the evidence obtained from being used
against the person whose rights were violated by
8. Other exceptions the search.
a. Exigent and emergency circumstances - a The exclusionary rule prevents, upon proper
prevailing general chaos and disorder because motion or objection, the admission of evidence
of an ongoing coup, and the raid of the illegally obtained. Thus, the most important effect of

e

Remedial Law
an illegal search and seizure is the exclusion of the is subsequently filed in another court, the
evidence obtained from being used against the motion shall be resolved by the latter court.
person whose rights were violated by the search, (Sec. 14, Rule 126, ROC, as amended)
the evidence being the proverbial and
jurisprudential “fruit of the poisonous tree.” The Rule with respect to waiver of legality and
violation of the individual’s rights also inevitably admissibility of a search warrant
results into civil, criminal, and administrative
charges against the officer responsible for the Objection to the legality of the search warrant, or as
violation. (Riano, 2019) to the admissibility of the evidence obtained is
deemed waived where no objection of the search
REMEDIES FROM UNLAWFUL SEARCH AND warrant was raised during the trial of the case nor
SEIZURE to the admissibility of the evidence obtained
through said warrant. (Demaisip v. CA, G.R. No.
Parties who may question the validity of search 89393, 25 Jan. 1991)
and seizure
Q: Boy Maton, a neighborhood tough guy, was
It can be contested only by the party whose rights arrested by a police officer on suspicion that he
have been impaired thereby, and that the objection was keeping prohibited drugs in his clutch bag.
to an unlawful search and seizure is purely personal When Boy Maton was searched immediately
and cannot be availed by third parties. (Stonehill v. after the arrest, the officer found and recovered
Diokno, G.R. L-19550, 19 June 1967) 10 sachets of shabu neatly tucked in the inner
linings of the clutch bag. At the time of his arrest,
Remedies against an unlawful search Boy Maton was watching a basketball game
being played in the town plaza, and he was
1. Motion to quash the search warrant; cheering for his favorite team. He was
2. Motion to suppress as evidence the objects subsequently charged with illegal possession of
illegally taken; dangerous drugs, and he entered a plea of not
3. Replevin, if the objects are legally possessed; guilty when he was arraigned.
and
4. Certiorari, where the search warrant is a patent During the trial, Boy Maton moved for the
nullity. dismissal of the information on the ground that
the facts revealed that he had been illegally
NOTE: The remedies are alternative. If a motion to arrested. He further moved for the suppression
quash is denied, a motion to suppress cannot be of the evidence confiscated from him as being
availed consequently. The illegality of the search the consequence of the illegal arrest, hence,
warrant does not call for the return of the things the fruit of the poisonous tree. The trial court, in
seized, the possession of which is prohibited by law. denying the motions of Boy Maton, explained
However, those personal properties seized in that at the time the motions were filed Boy
violation of the constitutional immunity whose Maton had already waived the right to raise the
possession is not illegal or unlawful per se ought to issue of the legality of the arrest. The trial court
be returned to their rightful owner or possessor. observed that, pursuant to the Rules of
Court, Boy Maton, as the accused, should have
Venue of filing a motion to quash search warrant assailed the validity of the arrest before
entering his plea to the information. Hence, the
1. It may be filed and acted upon only by the court trial court opined that any adverse consequence
where the action has been instituted; or of the alleged illegal arrest had also been equally
2. If no criminal action has been instituted, it may waived.
be filed in and resolved by the court that issued
the search warrant. However, if such court Comment on the ruling of the trial court. (2017
failed to resolve the motion and a criminal case BAR)

Criminal Procedure
A: The ruling of the court denying the motion for warrant against an inmate in a government-
dismissal of the information on the ground of illegal controlled detention facility proper?
arrest is proper. Under the Rules of Criminal
Procedure, the accused’s failure to file a motion to A: YES. A comprehensive analysis of searches that
quash before plea is a waiver of the objection to lack may be conducted in a penal institution by
of personal jurisdiction or of the objection to an correctional officers and those that may be
illegal arrest. implemented by law enforcers other than
correctional officers in charge of the detention
Here, Boy Maton entered a plea without filing a facility reveal their manifest differences in terms of
motion to quash on the ground of lack of personal purpose, frequency, and scope.
jurisdiction. Hence, he is deemed to have waived the
ground of illegal arrest which is subsumed under In a search conducted by jail guards, the search is
lack of personal jurisdiction. routinary and is intended to preserve internal order
and security in the entire detention facility. A search
However, the ruling denying the motion to suppress conducted as a protective measure in prison
evidence is not correct. The SC has held that a management is noncriminal in nature and does not
waiver of an illegal, warrantless arrest does not require a finding of probable cause.
carry with it a waiver of the inadmissibility of
evidence seized during an illegal warrantless arrest. Meanwhile, a search carried out as an incident to a
A waiver of an illegal arrest is not a waiver of an criminal investigation and intended to uncover
illegal search. evidence of a crime may be narrower in scope and
may be limited only to a specific jail cell and articles
The Constitution provides that evidence seized in specified in the warrant, as in the case. As a rule, a
violation of the right against illegal search is warrant is still necessary to execute a search in a
inadmissible in evidence. controlled detention facility in relation to a criminal
investigation. Strict compliance with governing
Here, the evidence seized was by virtue of an illegal laws, rules, and procedures on the issuance of
search since the arrest was illegal. Thus, such search warrants and implementation of the search
evidence may be suppressed. in a controlled detention facility is required to carry
out a valid search. (Re: Rolando Espinosa, Sr., A.M.
Q: Judge Sabarre and Judge Cabalona issued No. RTJ-17-2494 & A.M. No. RTJ-19-2557, 26 Jan.
search warrants against Mayor Espinosa and 2021)
Yap who are detainees inside the Baybay Sub-
Provincial Jail, a facility under the control of the
government. The OCA opined that the issuance N. PROVISIONAL REMEDIES IN CRIMINAL CASES
of search warrants to search jail facilities of the (RULE 127)
government can be considered as gross
ignorance of the law for which judges can be
held liable. In Senate Committee Report No. 46,
NATURE
the Committee on Public Order and Dangerous
Drugs and the Committee on Justice and Human
They are those to which parties may resort for the
Rights stated that there is no need to issue
preservation or protection of their rights or
search warrants because there is no reasonable
interests and for no other purposes during the
expectation of privacy inside Baybay Sub-
pendency of the action.
Provincial Jail. Applications should have been
denied because the proper action in this case
They are applied to a pending litigation for the
should have been coordination with the jail
purpose of securing the judgment or preserving the
guards or the PNP personnel augmented inside
status quo; and in some cases, after judgment, for
the jail premises. Is the issuance of a search
the purpose of preserving or disposing of the

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Remedial Law
subject matter. (Cala v. Roldan, G.R. No. L-252, 30 Cases wherein attachment is made available
Mar. 1946)
1. When the accused is about to abscond from the
Availability of Provisional Remedies Philippines;
2. When the criminal action is based on a claim for
The provisional remedies in civil actions, insofar as money or property embezzled or fraudulently
they are applicable, may be availed of in connection misapplied or converted to the use of the
with the civil action deemed instituted with the accused who is a public officer, or any officer of
criminal action. (Sec. 1, Rule 127, ROC, as amended) a corporation, or an attorney, factor, broker,
agent, or clerk, in the course of his employment
KINDS OF PROVISIONAL REMEDIES as such, or by any person in a fiduciary capacity,
or for a willful violation of a duty;
Kinds of Provisional Remedies available in 3. When the accused has concealed, removed or
criminal cases disposed of his property or is about to do so;
and
1. Attachment (Rule 57, ROC, as amended); 4. When the accused resides outside the
2. Preliminary injunction (Sec. 58, ROC, as Philippines. (Sec. 2, Rule 127, ROC, as amended)
amended);
3. Receivership (Rule 59, ROC, as amended); 2. Preliminary Injunction
4. Replevin (Rule 60, ROC, as amended); and
5. Support pendente lite (Rule 61, ROC, as It is an order of the court to perform or refrain from
amended) performing a particular act or acts.
1. Attachment 3. Receivership
It is a remedy afforded to the offended party to have It requires the appointment of a receiver aimed at
the property of the accused attached as security for the preservation of and securing the property or
satisfaction of any judgment that may be recovered fund subject of the litigation.
from the accused.
4. Replevin
It is a provisional remedy by which the property of
an adverse party is taken into legal custody, either It is a procedure whereby seized goods may be
at the commencement of an action or at any time provisionally restored to their owner pending the
thereafter, as a security for the satisfaction of any outcome of an action.
judgment that may be recovered by the plaintiff or
any proper party. (Northern Islands Company, Inc. v. 5. Support Pendente Lite
Spouses Garcia, G.R. No. 203240, 18 Mar. 2015)
It is an order against the accused to provide
Party who may apply for attachment support pendente lite to the child born to the
offended party allegedly because of the crime. The
The plaintiff or any proper party may have the application therefor may be filed successively by the
property of the adverse party attached. (Sec. 1, Rule offended party, her parents, grandparents or
57, ROC, as amended) Hence, the aggrieved party in guardian and the State in the corresponding
whose behalf the civil aspect of the criminal action criminal case during its pendency. (Sec. 6, Rule 61,
is prosecuted may apply for the issuance of a writ of ROC, as amended)
preliminary attachment, he being the person
primarily and directly interested thereby. The
prosecutor in the criminal action may make such an
application in behalf of or for the protection of the
interest of the offended party.

Criminal Procedure
arraignment without need of comment and/ or

O. REVISED GUIDELINES FOR CONTINUOUS opposition.
TRIAL OF CRIMINAL CASES
(A.M. 15-06-10-SC) The following motions are prohibited:
(JuDe-P-Re-Q-Bi-Su-Su-Po)
a. Motion for Judicial determination of

Applicability
probable cause.
The Revised Guidelines for Continuous Trial of
b. Motion for Preliminary investigation filed
Criminal Cases (Revised Guidelines) shall apply to:
beyond the five (5)-day reglementary
period in inquest proceedings under Sec. 6,
1. All newly filed criminal cases in the First and
Rule 112, or when preliminary
Second Level Courts, the Sandiganbayan and
investigation is required under Sec. 8, Rule
the Court of Tax Appeals, as of effectivity date;
112, or allowed in inquest proceedings and
2. All newly filed criminal cases governed by
the accused failed to participate in the
Special Laws and Rules, as of effectivity date;
preliminary investigation despite due
and
notice.
3. Pending criminal cases with respect to the
remainder of the proceedings.
c. Motion for Reinvestigation of the
prosecutor recommending the filing of
NOTE: Unless otherwise specifically provided
information once the information has been
herein, the Revised Guidelines shall not apply to
filed before the court
criminal cases filed under the Rule on Summary
Procedure.
i. if the motion is filed without prior
leave of court;
Procedure
ii. when preliminary investigation is not
required under Sec. 8, Rule 112; and
Trial shall be held from Monday to Thursday, and
iii. when the regular preliminary
courts shall call the cases at exactly 8:30 A.M. and
investigation is required and has been
2:00 P.M., pursuant to Administrative Circular No.
actually conducted, and the grounds
3-99. Hearing on motions, arraignment and pre-
relied upon in the motion are not
trial, and promulgation of decisions shall be held in
meritorious, such as issues of
the morning of Fridays, pursuant to Sec. 7, Rule 15
credibility, admissibility of evidence,
of the Rules of Court.
innocence of the accused, or lack of due
process when the accused was actually
All courts shall ensure the posting of their court
notified, among others.
calendars outside their courtrooms at least one (1)
day before the scheduled hearings, pursuant to OCA
d. Motion to Quash information when the
Circular No. 250-2015.
ground is not one of those stated in Sec. 3,
Rule 117, ROC, as amended.
Motions
e. Motion for Bill of particulars that does not

1. Motion for Inhibition - Motions for inhibition
conform to Sec. 9, Rule 116 ROC, as
based on grounds provided for under Rule 137
amended.
of the Rules of Court shall be resolved
immediately or within two (2) calendar days
f. Motion to Suspend the arraignment based
from date of their filing.
on grounds not stated under Sec. 11, Rule
2. Prohibited Motions - Prohibited motions shall
116 ROC, as amended.
be denied outright before the scheduled

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Remedial Law
g. Petition to Suspend the criminal action on h. Motion to dismiss on the ground that the
the ground of prejudicial question, when no criminal case is a Strategic Lawsuit Against
civil case has been filed, pursuant to Sec. 7, Public Participation (SLAPP) under Rule 6
Rule 111 ROC, as amended. of the Rules of Procedure for
Environmental Cases.
h. Motion for Postponement, except if it is
based on acts of God, force majeure or Rules on Motion for Postponement
physical inability of the witness to appear
and testify. 1. A motion for postponement may be written or
oral;
3. Meritorious Motions - Motions that allege 2. It shall be at all times accompanied by the
plausible grounds supported by relevant original receipt from the Office of the Clerk of
documents and/ or competent evidence, except Court evidencing payment of the postponement
those that are already covered by the Revised fee under Sec. 21 (b), Rule 141 of the Rules of
Guidelines, are meritorious motions, such as: Court;
3. The original receipt of payment shall be
a. Motion to withdraw information, or to submitted to either at the time of the filing of
downgrade the charge in the original said motion or not later than the next hearing
information, or to exclude an accused date; and
originally charged therein, filed by the 4. The Clerk of Court shall not accept the motion
prosecution as a result of a reinvestigation, unless accompanied by the original receipt.
reconsideration, and review;
GR: Motion for postponement is prohibited
b. Motion to quash warrant of arrest;
XPN: If it is based on acts of God, force majeure or
c. Motion to suspend arraignment on the physical inability of the witness to appear and
ground of an unsound mental condition testify.
(Sec. 11 [a], Rule 116, ROC, as amended);
NOTE: If the motion is granted based on such
d. Motion to suspend proceedings on the exceptions, the moving party shall be warned that
ground of a prejudicial question where a the presentation of its evidence must still be
civil case was filed prior to the criminal finished on the dates previously agreed upon.
case (Sec. 11 [b], Rule 116, ROC, as
amended); Free Legal Assistance
e. Motion to quash information on the If a party fails to qualify to avail of the services of the
grounds that the facts charged do not Public Attorney's Office:
constitute an offense, lack of jurisdiction,
extinction of criminal action or liability, or 1. The Integrated Bar of the Philippines Local
double jeopardy (Sec. 3, pars. [a], [b], [g], Chapter shall provide free legal assistance to
and [i] Rule 117, ROC, as amended); said party;
2. The IBP Local Chapter shall submit to the
f. Motion to discharge accused as a state Executive Judges a list of IBP-local lawyers who
witness (Sec. 17, Rule 119, ROC, as may be appointed by the courts to act as counsel
amended); de officio in such cases; and
3. The lists shall be disseminated among all the
g. Motion to quash search warrant under (Sec. trial courts in the station. (Par. 3, A.M. No. 15-06-
14, Rule 126, ROC, as amended) or motion to 10-SC)
suppress evidence; and

Criminal Procedure
NOTE: The IBP Local Chapter is also duty bound to raffle to only one court which shall then resolve
submit the names of local lawyers to the Executive said motion for consolidation, preferably on the
Judge who may be appointed as counsel de officio. date of the arraignment and in the presence of
(Notes and Cases on the Revised Guidelines on the accused and counsel.
Continuous Trial in Criminal Cases by Atty. Moya,
2018) 2. Pending Cases with Multiple Accused - In
cases involving multiple accused where a
Private Prosecutor subsequent information is filed involving an
accused who has been subjected to further
In cases where only the civil liability is being investigation by the Office of the Prosecutor
prosecuted by a private prosecutor, the head of the over an incident which has the same subject
prosecution office must issue in favor of the private matter as a prior information/s against
prosecutor a written authority to try the case even different accused, said subsequent case when
in the absence of the public prosecutor. The written filed accompanied by a motion for
authority must be submitted to the court prior to consolidation from the Office of the Prosecutor
the presentation of evidence by the private shall no longer be raffled.
prosecutor in accordance with Sec. 5, Rule 110 of
the Revised Rules on Criminal Procedure. The subsequent case shall be assigned directly
by the Executive Judge to the court where the
With this authority on record, the court may set the earlier case is pending. If the earlier case is
trial in the case and in other cases tried by private already at the trial stage and witnesses have
prosecutors with delegated authority on separate been presented, the parties may be allowed to
days when the presence of the public prosecutor adopt the evidence so far presented, without
may be dispensed with. (Par. 4, A.M. No. 15-06-10- prejudice to additional direct examination
SC) questions and cross-examination questions.
(Par. 5, A.M. No. 15-06-10-SC)
The prosecution of crimes lies with the executive
department of the government whose principal Archiving of Cases
power and responsibility is to see that the laws of
the land are faithfully executed. A necessary The archiving of cases shall be done within the
component of this power to execute the laws is the period prescribed under the Guidelines in the
right to prosecute their violators. (Punzalan v. Plata, Archiving of Cases under SC Administrative Circular
G.R. No. 160316, 02 Sept. 2013) No. 7-A-92, as restated in OCA Circular No. 89-2004.
A criminal case shall be archived only if, after the
The above mandate is founded on the theory that a issuance of the warrant of arrest, the accused
crime is a breach of the security and peace of the remains at large for six (6) months from the delivery
people at large, an outrage against the very of the warrant to the proper peace officer.
sovereignty of the state. It follows that a
representative of the State shall direct and control Such case shall likewise be archived when
the prosecution of the offense. (Tan v. Gallardo, G.R. proceedings therein are ordered suspended for an
No. L-41213-14, 05 Oct. 1976) indefinite period because:
Consolidations 1. The accused appears to be suffering from an

unsound mental condition which effectively
1. Newly-filed Cases - When newly-filed criminal renders him unable to fully understand the
cases involving offenses based on the same facts charge against him and to plead intelligently, or
or forming part of a series of offenses of similar to undergo trial, and he has to be committed to
character, are accompanied by a motion for a mental hospital;
consolidation filed by the Office of the
Prosecutor, the Executive Judge shall cause the

e

Remedial Law
2. A valid prejudicial question in a civil action is Arraignment and Pre-trial

invoked during the pendency of the criminal
case, unless the civil and criminal cases are 1. Schedule of Arraignment and Pre-trial
consolidated;
Once the court has acquired jurisdiction over
3. An interlocutory order or incident in the the person of the accused, the arraignment of
criminal case is elevated to, and is pending the accused and the pre-trial shall be set within
resolution/decision for an indefinite period ten (10) calendar days from date of the court's
before a higher court which has issued a receipt of the case for a detained accused, and
temporary restraining order or writ of within thirty (30) calendar days from the date
preliminary injunction; and the court acquires jurisdiction (either by arrest
or voluntary surrender) over a non-detained
4. When the accused has jumped bail before accused, unless a shorter period is provided by
arraignment and cannot be arrested by the special law or Supreme Court circular.
bondsman. (Par. 6, A.M. No. 15-06-10-SC)
The court must set the arraignment of the
Revival of Provisionally Dismissed Cases accused in the commitment order, in the case of
detained accused, or in the order of approval of
Revival of provisionally dismissed cases shall bail, in any other case.
conform to the requisites and the periods provided
for under Sec. 8, Rule 117 of the Revised Rules on For this purpose, where the Executive Judge
Criminal Procedure. Provisional dismissal of and Pairing Judges act on bail applications in
offenses punishable by imprisonment not exceeding cases assigned to other courts, they shall
six (6) years or a fine of any amount or both shall coordinate with the courts to which the cases
become permanent one (1) year after issuance of are actually assigned for scheduling purposes.
the order without the case having been revived.
Once the court has acquired jurisdiction over
Provisional dismissal of offenses punishable by the person of the accused:
imprisonment of more than six (6) years, shall
become permanent two (2) years after the issuance 2. Notice of Arraignment and Pre-Trial
of the order without the case having been revived.
(Par. 7, A.M. No. 15-06-10-SC) Notice of arraignment and pre-trial shall be sent
to the accused, his/her counsel, private
Requisites: complainant or complaining law enforcement
agent, public prosecutor, and witnesses whose
1. The prosecution with the express conformity of names appear in the information for purposes
the accused, or the accused, moves for a of plea-bargaining, arraignment and pre-trial.
provisional dismissal (sin perjuicio) of his case;
or both the prosecution and the accused moved 3. Waiver of Reading of the Information
for its provisional dismissal
2. The offended party is notified of the motion for In multiple cases, the court, upon personal
a provisional dismissal of the case; examination of the accused, may allow a waiver
3. The court issues an order granting the motion of the reading of the information upon the full
and dismissing the case provisionally; and understanding and express consent of the
4. The public prosecutor is served with a copy of accused and his/her counsel, which consent
the order of provisional dismissal of the case. shall be expressly stated in both the minutes/
(Bonsubre, Jr v. Pedro, G.R. No. 205952, 11 Feb. certificate of arraign1nent and the order of
2015) arraignment. The court shall explain the waiver
to the accused in the language or dialect known
to him/her, and ensure the accused's full

Criminal Procedure
understanding of the consequences of the The schedule of the trial dates, for both the
waiver before approving the same. prosecution and the accused, shall be
continuous and within the periods
In multiple cases, the court, upon personal provided in the Regular Rules/ Special
examination of the accused, may allow a waiver Rules. The trial dates may be shortened
of the reading of the information upon the full depending on the number of witnesses to
understanding and express consent of the be presented. In this regard, a flowchart
accused and his/her counsel, which consent shall be prepared by the court which shall
shall be expressly stated in both the minutes/ serve as the final schedule of hearings.
certificate of arraign1nent and the order of
arraignment. The court shall explain the waiver 5. Arraignment and Preliminary Conference of
to the accused in the language or dialect known Mediatable Cases subject to the Rule on
to him/her, and ensure the accused's full Summary Procedure
understanding of the consequences of the
waiver before approving the same. The arraignment and preliminary conference
shall be simultaneously held, and the court shall
4. Arraignment Proper take up all the matters required under Sec. 14,
Rule on Summary Procedure during the
a. Plea Bargaining Except in Drug Cases - preliminary conference.
Plea bargaining shall immediately proceed
if: a. If the accused pleads guilty to the crime
charged in the information, subheading
i. The accused desires to enter a plea of Plea of Guilty to the Crime Charged in the
guilty to a lesser offense; Information shall be followed.
ii. The private offended party in private b. If the accused pleads guilty to a lesser
crimes, or the arresting officer in offense, subheading III, Plea Bargaining
victimless crimes, is present to give except in Drug Cases shall be followed.
his/her consent with the conformity of c. If the accused does not enter a plea of
the public prosecutor to the plea guilty, whether to a lesser offense or to the
bargaining. offense charged in the information, the
court shall immediately proceed with the
Thereafter, judgment shall be immediately arraignment and the preliminary
rendered in the same proceedings. conference, and thereafter refer the case to
mediation.
b. Plea of Guilty to the Crime Charged in
the Information - If the accused pleads 6. Conduct of Pre-trial
guilty to the crime charged in the
information, judgment shall be a. Absence of parties. - The court shall
immediately rendered, except in those proceed with the pre-trial despite the
cases involving capital punishment. absence of the accused and/ or private
complainant, provided they were duly
c. Where No Plea Bargaining or Plea of notified of the same, and the counsel for the
Guilty Takes Place - If the accused does accused, as well as the public prosecutor,
not enter a plea of guilty, whether to a are present.
lesser offense or to the offense charged in b. Stipulations. - Proposals for stipulations
the information, the court shall shall be done with the active participation
immediately proceed with the arraignment of the court itself and shall not be left alone
and the pre-trial, in accordance with the to the counsels.
succeeding provisions on pre-trial.

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Remedial Law
c. Marking of evidence. - The documentary i. Libel by means of writings or similar

evidence of the prosecution and the means under Art. 355, RPC;
accused shall be marked. ii. Threatening to publish and offer to
d. Pre-trial Order. - The Pre-trial Order shall present such publication for a
immediately be served upon the parties compensation under Art. 356, RPC;
and counsel on the sa1ne day after the iii. Prohibited publication of acts ref
termination of the pre-trial. erred to in the course of official
e. Compliance with Rules. - Courts must proceedings under Art. 357, RPC;
strictly comply with the Guidelines to be iv. Grave Slander (Grave Oral
Observed in the Conduct of Pre-Trial under Defamation) of serious and insulting
A.M. No. 03-1-09-SC. nature under Art. 358, par. 1, RPC;
v. Simple Slander (Oral Defamation) -
Mediation not of a serious and insulting nature
under Art. 358, par. 2, RPC;
1. The following cases shall be referred to vi. Grave Slander by Deed - of a serious
mediation on the civil liability unless a nature under Art. 359, par. 1, RPC;
settlement is reached earlier in the pre- vii. Simple Slander by Deed - not of a
trial/preliminary conference: serious nature under Art. 359, par. 2,
RPC;
a. Crimes where payment may prevent viii. Incriminating innocent person
criminal prosecution or may extinguish under Art. 363, RPC;
criminal liability, such as violations of: ix. Intriguing against honor under Art.
364, RPC;
i. B.P. Blg. 22;
ii. SSS Law (R.A. No. 1161, as d. Libel under R.A. 10175 (Cybercrime
amended by R.A No. 8282); and Prevention Act of 2012) where the liability
iii. PAG-IBIG Law. (R.A. No. 9679) may be civil in nature;
e. Criminal negligence under Title 14, RPC,
b. Crimes against property under Title 10 where the liability may be civil in nature;
of the Revised Penal Code (RPC), where and
the obligation may be civil in nature, f. Intellectual property rights cases where the
such as: liability may be civil in nature.
i. Theft under Art. 308, RPC, 2. The referral of the case for mediation to the
cognizable by the first level courts; Philippine Mediation Center (PMC) Unit shall be
ii. Estafa under Art. 315(1), RPC, except made only after the conduct of the arraignment
estafa under Art. 315 (2) and (3); and the pre-trial/preliminary conference.
iii. Other forms of swindling under Art.
316, RPC; The court shall serve the Order of Referral to
iv. Swindling of a minor under Art. 317, the PMC Unit immediately after the
RPC; arraignment and the pre-trial/preliminary
v. Other deceits under Art. 318, RPC; conference.
and
vi. Malicious mischief under Art. 327, The mediation shall be terminated within a
RPC. non-extendible period of thirty (30) calendar
days from the date of referral by the court to the
c. Crimes against honor under Title 13, RPC, PMC Unit. After the lapse of the mediation
where the liability may be civil in nature, period or if mediation fails, trial shall proceed.
such as:

Criminal Procedure
Except those cases mentioned above, criminal Form of Testimony

cases subject to the Rule on Summary
Procedure shall not be referred to mediation. a. For First Level Courts
Bail In all criminal cases, including those covered by

the Rule on Summary Procedure, the
a. Petition for bail testimonies of witnesses shall consist of the
duly subscribed written statements given to
Petition for bail filed after the filing of the law enforcement or peace officers or the
information shall be set for summary hearing affidavits or counter-affidavits submitted
after arraignment and pre-trial. Testimony of a before the investigating prosecutor, and if such
witness in petition for bail may be in the form are not available, testimonies shall be in the
allowed, provided that the demeanor of the form of judicial affidavits, subject to additional
witness is not essential in determining his/her direct and cross-examination questions.
credibility.
The trial prosecutor may dispense with the
Petition for bail shall be heard and resolved sworn written statements submitted to the law
within a non-extendible period of thirty (30) enforcement or peace officers and prepare the
calendar days from date of the first hearing, judicial affidavits of the affiants or modify or
except in drug cases which shall be heard and revise the said sworn statements before
resolved within twenty (20) calendar days, presenting it as evidence.
without need of oral argument and submission
of memoranda, consistent with the summary b. For Second Level Courts, Sandiganbayan and
nature of the proceedings. Court of Tax Appeals
Motion for reconsideration on the resolution of In criminal cases where the demeanor of the
petition for bail shall be resolved within a non- witness is not essential in determining the
extendible period of ten (10) calendar days credibility of said witness, such as forensic
from date of submission of the motion. chemists, medico-legal officers, investigators,
auditors, accountants, engineers, custodians,
b. Evidence in petition for bail expert witnesses and other similar witnesses,
who will testify on the authenticity, due
The resolution of petition for bail shall be based execution and the contents of public documents
solely on the evidence presented during the bail and reports, and in criminal cases that are
proceedings by the prosecution. The transactional in character, such as falsification,
prosecution shall present only pieces of malversation, estafa, or other crimes where the
evidence that are essential in establishing that culpability or innocence of the accused can be
the evidence of guilt is strong. The accused need established through documents, the
not present evidence to contradict or rebut the testimonies of the witnesses shall be the duly
prosecution's evidence. subscribed written statements given to law
enforcement or peace officers or the affidavits
c. Non-suspension of the presentation of or counter-affidavits submitted before the
evidence investigating prosecutor, and if such are not
available, testimonies shall be in the form of
The court shall not suspend the presentation of judicial affidavits, subject to additional direct
the evidence in chief while awaiting resolution and cross-examination questions.
of the petition for bail or the motion for
reconsideration. In all other cases where the culpability or the
innocence of the accused is based on the
testimonies of the alleged eyewitnesses, the

e

Remedial Law
testimonies of these witnesses shall be in oral 2. For the prosecution - Sec. 15, Rule 119 of
form. the Rules of Court on the conditional
examination of witness for the prosecution.
NOTE: Mere relationship of the witness with the
victim does not necessarily tarnish the witness’ b. Absence of counsel de parte - In the absence
testimony. When there is no showing of improper of the counsel de parte, the hearing shall
motive on the part of the witness in testifying proceed upon appointment by the court of a
against the accused, her relationship with the victim counsel de officio.
does not render her testimony less worthy of
credence. In fact, relationship itself could even c. Offer of evidence - The offer of evidence, the
strengthen credibility in a particular case, for it is comment/ objection thereto, and the court
highly unnatural for an aggrieved relative to falsely ruling thereto shall be made orally. A party is
accuse someone other than the actual culprit. required to make his/her oral offer of evidence
(People v. Solar y Dumbrique, G.R. No. 225595, 06 on the same day after the presentation of
Aug. 2019, J. Caguioa) his/her last witness, and the opposing party is
required to immediately interpose his/her oral
Stipulations comment/objection thereto. Thereafter, the
court shall make a ruling on the offer of
During pre-trial/preliminary conference, the court evidence in open court.
shall require the parties to enter into stipulations on
the subject of both direct and cross-examinations of In making the offer, the counsel shall cite the
witnesses who have no personal knowledge of the specific page numbers of the court record
material facts constituting the crimes, such as where the exhibits being offered are found, if
forensic chemists, medico-legal officers, attached thereto. The court shall ensure that all
investigators, auditors, accountants, engineers, exhibits offered are submitted to it on the same
custodians, expert witnesses and other similar day of the offer.
witnesses, who will testify on the authenticity, due
execution and the contents of public documents and If the exhibits are not attached to the record, the
reports; corroborative witnesses; and those who party making the offer must submit the same
will testify on the civil liability. during the offer of evidence in open court.
This rule is without prejudice to allowing additional d. Demurrer to Evidence - After the prosecution
direct and cross-examination questions. has rested its case, the court shall inquire from
the accused if he/she desires to move for leave
If stipulations cannot be had in full, where the of court to file a demurrer to evidence, or to
adverse party does not waive the right to cross- proceed with the presentation of his/her
examination, the subject of the direct testimony of evidence.
these witnesses should be stipulated upon, without
prejudice to additional direct and cross- If the accused orally moves for leave of court to
examination questions. file a demurrer to evidence, the court shall
orally resolve the same. If the motion for leave
Trial is denied, the court shall issue an order for the
accused to present and terminate his/her
a. The court shall encourage the accused and the evidence on the dates previously scheduled and
prosecution to avail of: agreed upon, and to orally offer and rest his/her
case on the day his/her last witness is
1. For the accused - Secs. 12 and 13, Rule 119 presented.
of the Rules of Court on the application for
examination of witness for accused before If despite the denial of the motion for leave, the
trial and how it is made; and accused insists on filing the demurrer to

Criminal Procedure
evidence, the previously scheduled dates for the f. One-day examination of witness rule - The
accused to present evidence shall be cancelled. court shall strictly adhere to the rule that a
witness has to be fully examined in one (1) day.
The demurrer to evidence shall be filed within
a non-extendible period of ten (10) calendar Memoranda
days from the date leave of court is granted, and
the corresponding comment shall be filed The submission of memoranda is discretionary on
within a non-extendible period of ten (10) the part of the court, which in no case shall exceed
calendar days counted from date of receipt of twenty-five (25) pages in length, single-spaced, on
the demurrer to evidence. The demurrer shall legal size paper, using size 14 font. The period to
be resolved by the court within a non- submit memoranda shall be non-extendible and
extendible period of thirty (30) calendar days shall not suspend the running of the period of
from date of the filing of the comment or lapse promulgation of the decision; thus, with or without
of the ten (10)-day period to file the same. memoranda, the promulgation shall push through
as scheduled.
If the motion for leave of court to file demurrer
to evidence is granted, and the subsequent Lack of Stenographic Notes
demurrer to evidence is denied, the accused
shall likewise present and terminate his/her Judges who conducted the trial and heard the
evidence (one day apart, morning and testimonies of some or all of the witnesses shall not
afternoon) and shall orally offer and rest defer the submission of the case for decision on the
his/her case on the day his/her last witness is ground of incomplete or missing transcript of
presented. The court shall rule on the oral offer stenographic notes. If the case was heard
of evidence of the accused and the comment or completely by another judge, not the judge tasked to
objection of the prosecution on the same day of write the decision, the latter shall direct the
the offer. If the court denies the motion to stenographers concerned to submit the complete
present rebuttal evidence because it is no transcripts within a period of thirty (30) calendar
longer necessary, it shall consider the case days from date of his/her assumption to office.
submitted for decision.
Promulgation
e. Presentation of Rebuttal and Sur-rebuttal
Evidence - If the court grants the motion to Schedule of promulgation - The court shall
present rebuttal evidence, the prosecution shall announce in open court and include in the order
immediately proceed with its presentation after submitting the case for decision, the date of the
the accused had rested his/her case, and orally promulgation of its decision which shall not be more
rest its case in rebuttal after the presentation of than ninety (90) calendar days from the date the
its last rebuttal witness. Thereafter, the accused case is submitted for decision., except when the case
shall immediately present sur-rebuttal is covered by Special Rules and other laws which
evidence, if there is any, and orally rest the case provide for a shorter period.
in sur-rebuttal after the presentation of its last
sur-rebuttal witness. Thereafter, the court shall Resolution of motion for reconsideration of
submit the case for decision. judgment of conviction or motion for new trial - A
motion for reconsideration of judgment of
NOTE: If the court denies the motion to present conviction or motion for new trial under Rule 121
rebuttal evidence because it is no longer filed within the reglementary period of fifteen (15)
necessary, it shall consider the case submitted days from promulgation shall be resolved within a
for decision. non-extendible period of ten (10) calendar days
from the submission of the comment of the
prosecution. With or without comment, the court

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Remedial Law
shall resolve the motion within the ten (10)-day center manned by special investigators to
period. exclusively handle cases involving violations of this
Act. (Sec. 10, R.A. No. 10175)
Effect of Non-Compliance
It must be noted, however, that the phrase “to
Non-compliance with the Revised Guidelines, exclusively handle cases involving violation of this
including failure to observe the timelines and Act” does not confer the NBI Cyber Crime Division
deadlines herein provided, is a ground for (CCD) and PNP Anti-Cybercrime Group (ACG) the
disciplinary action. sole authority and competence to investigate cases
involving violations of R.A. No. 10975. Rather, the
exclusivity phrase provides a limitation on the type
P. THE RULE ON CYBERCRIME WARRANTS of cases that may be handled by the NBI-CCD and
(A.M. No. 17-11-03-SC) PNP-ACG, thus, bolstering their status as specialized
units.
The intent of the law is to create specialized

Scope and Applicability
cybercrime units that will only handle cybercrime
and cyber-related cases. However, this does not
This rule sets forth the procedure for the application
preclude other investigative units or agencies in
and grant of warrants and related orders involving
handling cyber-related offenses or those offenses
the preservation, disclosure, interception, search,
involving electronic evidence. (DOJ Advisory Opinion
seizure, and/or examination, as well as the custody,
No. 1, Series of 2018)
and destruction of computer data, as provided
under, R.A. 10175, otherwise known as the
Where to apply for an Application for a Warrant
“Cybercrime Prevention Act of 2012.”
It shall be filed by the law enforcement authorities

Venue
before any of the designated cybercrime courts of
the province or the city where the offense or any of
The venue for criminal actions for violation of Secs.
its elements:
4 (Cybercrime offenses) and 5 (Other offenses) of
R.A. 10175, shall be filed before the designated
1. has been committed;
cybercrime court of the province or city:
2. is being committed;
3. is about to be committed; or
1. Where the offense or any of its elements is
4. where any part of the computer system used is
committed OR
situated, or where any of the damage caused to
2. Where any part of the computer system used
a natural or juridical person took place.
is situated, OR
3. Where any of the damage caused to a natural
However, the cybercrime courts in Quezon City, the
or juridical person took place:
City of Manila, Makati City, Pasig City, Cebu City,
Iloilo City, Davao City and Cagayan De Oro City shall
Provided, that the court where the criminal action is
have the special authority to act on applications and
first filed shall acquire jurisdiction to the exclusion
issue warrants which shall be enforceable
of the other courts. (Sec. 2.1, A.M. No. 17-11-03-SC)
nationwide and outside the Philippines.
The National Bureau of Investigation (NBI) and the

An application for a warrant under this Rule for
Philippine National Police (PNP) shall be
violation of crimes defined and penalized by the
responsible for the efficient and effective law
Revised Penal Code, as amended, and other special
enforcement of the provisions of this Act. The NBI
laws, if committed by, through, and with the use of
and the PNP shall organize a cybercrime unit or
Information and Communications Technology (ICT)
shall be filed by the law enforcement authorities

Criminal Procedure
with the regular or other specialized regional trial Warrant to Disclose Computer Data (W-I-S-A)
courts, as the case may be, within its territorial
jurisdiction. (Sec. 2.2, A.M. No. 17-11-03-SC) 1. An order in Writing;
2. Issued in the name of the People of the
Effective Period of Warrants Philippines;
3. Signed by a judge, upon application of law
Any warrant issued under this Rule shall only be enforcement authorities (LEA);
effective for the length of time as determined by the 4. Authorizing the LEA to issue an order to
court, which shall not exceed a period of ten (10) disclose and accordingly, require any person or
days from its issuance. The court issuing the service provider to disclose or submit
warrant may, upon motion, extend its effectivity subscriber's information, traffic data, or
based only on justifiable reasons for a period not relevant data in his/her or its possession or
exceeding ten (10) days from the expiration of the control. (Sec. 4.2, A.M. No. 17-11-03-SC)
original period. (Sec. 2.5, A.M. No. 17-11-03-SC)
Contents of WDCD (Po-RN-N-I-Pa-PLa-M-O)
Contempt (D-I-S-S-E)
1. The Probable Offense involved;
Failure to timely file the returns for any of the issued
warrants under this Rule or to duly turn-over to the 2. Relevance and Necessity of the computer data
court's custody any of the items Disclosed, or subscriber's information sought to be
Intercepted, Searched, Seized, and/or Examined as disclosed for the purpose of the investigation;
prescribed hereunder, shall subject the responsible
law enforcement authorities to an action for 3. Names of the Individual or entities whose
contempt, which procedures shall be governed by computer data or subscriber's information are
Rule 71 of the Revised Rules on Civil Procedure, sought to be disclosed, including the names of
insofar as they are applicable. (Sec. 2.6, A.M. No. 17- the individuals or entities who have control,
11-03-SC) possession or access thereto, if available;
Preservation of Computer Data 4. Particular description of the computer data or

subscriber's information sought to be
The integrity of traffic data and subscriber’s disclosed;
information shall be kept, retained, and preserved
by a service provider for a minimum period of six 5. Place where the disclosure of computer data or
(6) months from the date of the transaction. subscriber's information is to be enforced, if
available;
On the other hand, content data shall be preserved
for six (6) months from the date of the receipt 6. Manner or method by which the disclosure of
order from law enforcement authorities requiring the computer data or subscriber's information
its preservation. (Sec. 3.1, A.M. No. 17-11-03-SC) is to be carried out, if available; and
NOTE: Law enforcement authorities requiring its 7. Other relevant information that will persuade
preservation may order a one-time extension for the court that there is a probable cause to issue
another six (6) months: Provided, that once a WDCD. (Sec. 4.3, A.M. No. 17-11-03-SC)
computer data is preserved, transmitted or stored
by a service provider is used as evidence in a case, Return on the WDCD
the receipt by the service provider of a copy of the
transmittal document to the Office of the Prosecutor Within forty-eight (48) hours from
shall be deemed a notification to preserve the implementation OR after the expiration of the
computer data until final termination of the case effectivity of the WDCD, whichever comes first, the
and/or as ordered by the court, as the case may be. authorized law enforcement officer shall submit a

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Remedial Law
return on the WDCD to the court that issued it and d. Surveillance of the content of
simultaneously turn over the custody of the communications, including procuring of
disclosed computer data or subscriber's the content of computer data, either
information thereto. directly, through access and use of a
computer system or indirectly, through the
NOTE: It is the duty of the issuing judge to ascertain use of electronic eavesdropping or tapping
if the return has been made, and if none, to summon devices, at the same time that the
the law enforcement officer to whom the WDCD was communication is occurring. (Sec. 5.2, A.M.
issued and require him to explain why no return 17-11-03-SC)
was made, without prejudice to any action for
contempt. (Sec. 4.5, A.M. No. 17-11-03-SC) NOTE: The verified application for a WICD, as well
as the supporting affidavits, shall state the essential
Law Enforcement Authorities are allowed to facts similar to those in Section 4.3 of this Rule,
retain a copy of the disclosed computer data or except that the subject matter is the communication
subscriber's information subject of the WDCD or computer data sought to be intercepted. (Sec. 5.3,
which may be utilized for case build-up or A.M. No. 17-11-03-SC)
preliminary investigation purposes, without the
need of any court intervention; Provided, that the Return of the WICD
details thereof are kept strictly confidential and that
the retained copy shall be labelled as such. Within forty-eight (48) hours from
implementation OR after the expiration of the
The retained copy shall be turned over upon the effectivity of the WICD, whichever comes first, the
filing of a criminal action involving the disclosed authorized law enforcement officers shall submit a
computer data or subscriber's information to the return on the WICD to the court that issued it and
court where such action has been instituted, or if no simultaneously turn-over the custody of the
criminal action has been filed, upon order of the intercepted communication or computer data.
issuing court under the procedure set forth in
paragraph 3 of Section 8.2 of this Rule. It is the duty of the issuing judge to ascertain if the
return has been made, and if none, to summon the
Upon its turn-over, the retained copy shall always law enforcement officer to whom the WICD was
be kept, destroyed, and/or returned together with issued and require him to explain why no return
the computer data or subscriber's information that was made, without prejudice to any action for
was originally turned over to the issuing court. (Sec. contempt. (Sec. 5.5, A.M. No. 17-11-03-SC)
4.5, A.M. No. 17-11-03-SC)
Notice after Filing of Return
Warrant to Intercept Computer Data (WICD)
(W-I-S-A-L-Re-M-S) Within thirty (30) days from the filing of the
It is an order: return, or, if no return is filed, from the lapse of the
forty-eight (48) hour period to file the return,
1. In Writing; the authorized law enforcement officer has the duty
2. Issued in the name of the People of the to notify the person whose communications or
Philippines; computer data have been intercepted of the
3. Signed by a judge, upon application of law activities conducted pursuant to the WICD. If a
enforcement authorities; return has been filed, a copy of the same shall be
4. Authorizing the latter to carry out any or all of attached to the notice. On the other hand, if no
the following activities: return has been filed, the notice shall state the
details of the interception activities, including the
a. Listening to; contents of the intercepted communication or
b. Recording; computer data.
c. Monitoring; or

Criminal Procedure
Within ten (10) days from notice, the person as limit their search to the place specified in the
whose communications or computer data have been warrant.
intercepted may challenge, by motion, the legality of
the interception before the issuing court. (Sec. 5.6, Otherwise, an off-site search may be conducted,
A.M. No. 17-11-03-SC) provided that a forensic image is, nevertheless,
made, and that the reasons for the said search are
Warrant to Search, Seize and Examine Computer stated in the initial return. (Sec. 6.4, A.M. No. 17-11-
Data (WSSECD) 03-SC)
It is an order in writing issued in the name of the Return of Items seized Off-site
People of the Philippines, signed by a judge, upon
application of law enforcement authorities, A person whose computer devices or computer
authorizing the latter to search the particular place system have been searched and seized off-site may,
for items to be seized and/or examined. (Sec. 6.1, upon motion, seek the return of the said items from
A.M. No. 17-11-03-SC) the court issuing the WSSECD:
Contents for Application of WSSECD Provided, that a forensic image of the computer data
subject of the WSSECD has already been made. The
The verified application for a WSSECD, as well as the court may grant the motion upon its determination
supporting affidavits, shall state the essential facts that no lawful ground exists to otherwise withhold
similar to those in Section 4.3 of this Rule, except the return of such items to him. (Sec. 6.4, A.M. No. 17-
that the subject matter is the computer data sought 11-03-SC)
to be searched, seized, and examined, and all other
items related thereto. Allowable Activities during the Implementation
of the WSSECD
In addition, the application shall contain:
The interception of communications and computer
1. An explanation of the search and seizure data may be conducted during the implementation
strategy to be implemented; of the WSSECD, provided that:
2. Including a projection of whether or not an off-
site or on-site search will be conducted, taking 1. The interception activities shall only be limited
into account the nature of the computer data to communications and computer data that are
involved, the computer or computer system's reasonably related to the subject matter of the
security features, and/or other relevant WSSECD; and
circumstances, if such information is available.
(Sec. 6.2, A.M. No. 17-11-03-SC) 2. The said activities are fully disclosed, and the
foregoing relation duly explained in the initial
Issuance of WSSECD return.
If the judge is satisfied that there is probable cause LEAs may order any person, who has knowledge
to believe that the facts upon which the application about the functioning of the computer system and
for WSSECD exists, he shall issue the WSSECD. (Sec. the measures to protect and preserve the computer
6.3, A.M. No. 17-11-03-SC) data therein, to provide, as is reasonable, the
necessary information to enable the undertaking of
Off-site and On-site Principle the search, seizure and examination. (Sec. 6.5, A.M.
No. 17-11-03-SC)
Law enforcement authorities shall, if the
circumstances so allow, endeavor to first make a
forensic image of the computer data on-site as well

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Initial Return of the WSSECD 6. A reasonable estimation of how long the

examination of the items seized will be
Within ten (10) days from the issuance of the concluded and the justification therefor.
WSSECD, the authorized law enforcement officers
shall submit an initial return that contains the NOTE: It is the duty of the issuing judge to ascertain
following information: if the initial return has been made, and if none, to
summon the law enforcement authority to whom
1. A list of all the items that were seized, with a the WSSECD was issued and require him to explain
detailed identification of: why no initial return was made, without prejudice
to any action for contempt. (Sec. 6.6, A.M. No. 17-11-
a. the devices of the computer system seized, 03-SC)
including the name, make, brand, serial
numbers, or any other mode of Period to examine and Order for Return
identification, if available; and
After the initial return is submitted to the court
b. the hash value of the computer data and/or pursuant to the WSSECD, the court shall issue an
the seized computer device or computer order fixing the period to conclude the examination
system containing such data. of all the items seized, which period may be
extended not exceeding thirty (30) days, upon
2. A statement on whether a forensic image of the motion, for justifiable reasons. (Sec. 6.7, A.M. No. 17-
computer data was made on-site, and if not, the 11-03-SC)
reasons for making the forensic image off-site;
Final Return of the WSSECD
3. A statement on whether the search was
conducted on-site, and if not, the reasons for Within forty-eight (48) hours after the expiration
conducting the search and seizure off-site; of the period to examine as provided under Section
6.7 of this Rule, the authorized law enforcement
4. A statement on whether interception was officers shall submit a final return on the WSSECD
conducted during the implementation of the to the court that issued it, and simultaneously turn-
WSSECD, together with: over the custody of the seized computer data, as
well as all other items seized and/or the
a. A detailed identification of all the communications or computer data intercepted in
interception activities that were relation thereto, following the procedure under
conducted; Section 7.1 of this Rule.
b. The hash value/s of the communications It is the duty of the issuing judge to ascertain if the
or computer data intercepted; and final return has been made, and if none, to summon
the law enforcement officer to whom the WSSECD
c. An explanation of the said items' was issued and require him to explain why no final
reasonable relation to the computer data return was made, without prejudice to any action
subject of the WSSECD. for contempt. (Sec. 6.8, A.M. No. 17-11-03-SC)
5. List of all the actions taken to enforce the Warrant to Examine Computer Data (WECD)
WSSECD, from the time the law enforcement
officers reached the place to be seized until they It is issued upon acquiring possession of a computer
left the premises with the seized items and device or computer system via a lawful warrantless
reached the place where the items seized were arrest, or by any other lawful method, BUT law
stored and secured for examination; and enforcement authorities shall first apply for a
warrant (WECD) before searching the said
computer device or computer system for the

Criminal Procedure
purpose of obtaining for forensic examination the the computer data from the time of its
computer data contained therein. seizure until the termination of the
examination but prior to depositing it with
The verified application for a WECD, as well as the the court, and the names of officers who
supporting affidavits, shall state the essential facts will be delivering the seized items to the
similar to those in Section 4.3 of this Rule, except court;
that the subject matter is the computer data sought
to be examined. In addition, the application shall 6. The name of the law enforcement officer
disclose the circumstances surrounding the lawful who may be allowed access to the
acquisition of the computer device or computer deposited data. When the said officer dies,
system containing the said computer data. (Sec. 6.9, resigns of severs tie with the office, his/her
A.M. No. 17-11-03-SC) successor may, upon motion, be granted
access to the deposit; and
Deposit and Custody of the Computer Data
7. A certification that no duplicates or copies
Upon the filing of the return for a WDCD or WICD, or of the whole or any part thereof have been
the final return for a WSSECD or WECD, all made, or if made, all such duplicates or
computer data subject thereof shall be copies are included in the sealed package
simultaneously deposited in a sealed package with deposited, except for the copy retained by
the same court that issued the warrant. It shall be law enforcement authorities pursuant to
accompanied by a complete and verified inventory paragraph 3 of Section 4.5 of this Rule.
of all the other items seized in relation thereto, and
by the affidavit of the duly authorized law The return on the warrant shall be filed and kept by
enforcement officer containing: the custodian of the logbook on search warrants
who shall enter therein the date of the return, the
1. The date and time of the disclosure, description of the sealed package deposited, the
interception, search, seizure, and/or name of the affiant, and other actions of the judge.
examination of the computer data, as the (Sec. 7.1, A.M. No. 17-11-03-SC)
case may be. If the examiner or analyst has
recorded his/her examination, the Access to and Use of Computer Data
recording shall also be deposited with the
court in a sealed package and stated in the The package containing the computer data so
affidavit; deposited under Section 7.1 of this Rule shall not be
opened, or the recordings replayed, or its contents
2. The particulars of the subject computer revealed, or, in any manner, used as evidence,
data, including its hash value; except upon motion duly granted by the court.
3. The manner by which the computer data The motion for the purpose shall state:
was obtained;
1. The relevance of the computer data sought
4. Detailed identification of all items seized to be opened, replayed, revealed, or used
in relation to the subject computer data, as evidence; and
including the computer device containing
such data and/or other parts of the 2. The names of the persons who will be
computer system seized, indicating the allowed to have access thereto, if the
name, make, brand, serial numbers, or any motion is granted.
other mode of identification, if available;
The motion shall further include proof of service of
5. The names and positions of the law copies sent to the person or persons whose
enforcement authorities who had access to computer data is the subject of the motion. The said

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person or persons shall be given ten (10) days from that was originally turned over to the issuing court.
receipt of notice thereof to file a comment, after (Sec. 8.2, A.M. No. 17-11-03-SC)
which the court shall rule on the motion, unless it
finds it necessary to conduct a clarificatory hearing Manner of Destruction of Computer Data
for the purpose. (Sec. 7.3, A.M. No. 17-11-03-SC)
The destruction of computer data and related items,
Destruction and Return of Computer Data in the if so, allowed under Section 8.2 of this Rule, shall be
Custody of the Court made in the presence of:
Upon motion and due hearing, the court may, for 1. The Branch Clerk-of-Court, or in his/her
justifiable reasons, order the complete or partial absence, in the presence of any other person
destruction, or the return to its lawful owner or duly designated by the court to witness the
possessor, of the computer data or any of the related same;
items turned over to its custody.
2. The accused or the person/s from whom such
The court may, motu proprio, and upon written items were seized, or his/her representative or
notice to all the parties concerned, order the counsel;
complete or partial destruction, or return to its 3. The law enforcement officer allowed access to
lawful owner or possessor, of the computer data or such items as indicated in the inventory, or
any of the related items turned over to its custody if his/her duly authorized representative, may
no preliminary investigation or case involving these also be allowed to witness the said activity;
items has been instituted after thirty-one (31) Provided, that they appear during the
days from their deposit, or if preliminary scheduled date of destruction upon written
investigation has been so instituted within this notice to them by the Branch Clerk-of-Court at
period, upon finality of the prosecutor's resolution least three (3) days prior to the
finding lack of probable cause. In its sound aforementioned date.
discretion, the court may conduct a clarificatory
hearing to further determine if there is no Within twenty-four (24) hours from the
reasonable opposition to the items' destruction or destruction of the computer data, the Branch Clerk-
return. of-Court or the witness duly designated by the court
shall issue a sworn certification as to the fact of
If the court finds the destruction or return of destruction and file the said certificate with the
disclosed computer data or subscriber's same court.
information subject of a WDCD to be justified under
this Section, it shall first issue an order directing the The storage device, or other items turned over to
law enforcement authorities to turnover the the court's custody, shall be destroyed by shredding,
retained copy thereof as described in paragraph 3 of drilling of four holes through the device, prying the
Section 4.5 of this Rule. Upon its turn-over, the platters apart, or other means in accordance with
retained copy shall be simultaneously destroyed or international standards that will sufficiently make it
returned to its lawful owner or possessor together inoperable. (Sec. 8.3, A.M. No. 17-11-03-SC)
with the computer data or subscriber's information

Criminal Procedure
Procedure for Inquest Proceedings
Commences by receipt of
complaint by an inquest
officer from the law
enforcer
Inquest officer shall

determine if the arrest
is valid
--
-
~
If the arrest is valid, detainee shall be asked if

If not valid, he shall proceed with the inquest the detainee wants a new preliminary
but shall recommend the release to be investigation, and if he does, he shall be made
approved by the city or provincial prosecutor to execute a waiver of the provision of Art. 125
of RPC
f-E
f-iE
Otherwise, Inquest proper shall be conducted

When the recommendation for release is
"'
approved, but the evidence warrants the
conduct of a preliminary investigation,
the said order shall be served on the
officer having custody of the detainee If the inquest officer finds probable cause, he
and shall direct the said officer to serve must prepare a complaint or information with
upon the detainee the subpoena or notice recommendation to be filed in court, otherwise
of preliminary investigation recommend the release of person (Part II,
Manual for Prosecutors).
Summary of the remedies available to the aggrieved party
Resolution of the Office of the Prosecutor

-
-
+
MOTION FOR RECONSIDERATION APPEAL

Before the Office of the Prosecutor Before the Secretary of Justice within 15
I
within 15 days from receipt of days from receipt of assailed resolution

assailed resolution or 15 days from receipt of denial of MR
e--
e--
◄
APPEAL
Before the Office of the President
PETITION FOR CERTIORARI
◄
Before the CA under Rule 65 and only where

the decision of the Secretary is tainted with APPEAL
grave abuse of discretion Before the CA under Rule 43
-
-
◄
APPEAL BY CERTIORARI
Before the SC under Rule 45
NOTE: Appeals before the Office of the President may only be taken under the following conditions:

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1. The offense involved is punishable by reclusion perpetua to death;

2. New and material issues are raised which were not presented before the DOJ;
3. The prescription of the offense is not due to lapse within 6 months from notice of the questioned
resolution; and
4. The appeal or petition for review is filed within 30 days from notice.
Determination of the Existence of Probable Cause
Within 10 days from the filing of the

complaint or information, the judge
shall personally evaluate the
resolution of the prosecutor and its
supporting evidence.
I
I I I
In case of doubt on the existence of probable
He may immediately dismiss the case If he finds probable cause, he shall
cause, the judge may order the prosecutor to
if the evidence on record clearly fails issue a warrant of a'rrest, or a
present additional evidence within 5 days from
to establish probable cause. commitment order. (Sec. 6, Rule 112)
notice and the issue must be resolved by the
court within 30 days from the filing of the
complaint or information.

Evidence
Evidence in Civil Cases and Evidence in Criminal

VII. EVIDENCE Cases
EVIDENCE IN CIVIL EVIDENCE IN

CASE CRIMINAL CASE
The party having the The guilt of the
A. GENERAL CONCEPTS burden of proof must accused must be
prove his claim by a proved beyond
preponderance of reasonable doubt. (Sec.
Concept of Evidence evidence. (Sec. 1, Rule 2, Rule 133, ROC, as
133, ROC, as amended) amended)
Evidence is the means, sanctioned by the Rules of GR: An offer of
Court, of ascertaining in a judicial proceeding the compromise is not an
truth respecting a matter of fact. (Sec. 1, Rule 128, implied admission of
ROC, as amended) any liability, and is not
admissible in evidence
Principle of Uniformity GR: An offer of
against the offeror.
compromise by the
The Rules of Evidence shall be the same in all courts accused may be
Neither is evidence of
and in all trials and hearings, except as otherwise received in evidence as
conduct nor statements
provided by law or the Rules of Court. an implied admission of
made in compromise
guilt.
negotiations
Applicability of the Rules on Evidence admissible.
XPNs:
The Rules of Evidence, being part of the Rules of 1. Those involving
XPN: Evidence
Court, apply only to judicial proceedings. (Sec. 1, quasi-offenses
otherwise discoverable
Rule 128, ROC, as amended) (criminal
or offered for another
negligence); and
purpose, such as
The Rules of Court shall not apply to: (N-I-C-O-L-E) proving bias or
2. Criminal cases
prejudice of a witness,
1. Naturalization proceedings; allowed by law to
negativing a contention
I
2. Insolvency proceedings; be compromised.

of undue delay, or
(Sec. 28, Rule 130,
I
3. Cadastral proceedings; proving an effort to

ROC, as amended)
I
4. Other cases not provided in the Rules of Court; obstruct a criminal

I
5. Land registration proceedings; and investigation or

I
6. Election cases (Sec. 4, Rule 1, ROC, as amended) prosecution. (Sec. 28,

I
Rule 130, ROC, as

However, the rules may apply to the amended)
abovementioned proceedings and cases by analogy The concept of
or in a suppletory character and whenever presumption of
practicable and convenient. (Sec. 4, Rule 1, ROC, as innocence does not
amended) The accused enjoys the
apply and generally
constitutional
there is no
presumption of
presumption for or
innocence.
against a party except
in cases provided for by
law.
The concept of Confession is a
confession does not declaration of an

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apply. accused 2. BURDEN OF PROOF VS. BURDEN OF

acknowledging his EVIDENCE
guilt.
BURDEN OF
BURDEN OF PROOF
1. PROOF VS. EVIDENCE EVIDENCE
It is the duty of a party
PROOF EVIDENCE to present evidence
It is the duty of a party
It is the mode or sufficient to establish
It is merely the to present evidence on
manner of proving or rebut a fact in issue
probative effect of the facts necessary to
competent facts in to establish a prima
evidence and is the establish his or her
judicial proceedings. facie case. (Sec. 1, Rule
conviction or claim or defense by the
(Bustos v. Lucero, 81 131, ROC, as amended)
persuasion of the mind amount of evidence
Phil. 640)
resulting from required by law. (Sec. 1,
Burden of evidence is
consideration of the Rule 131, ROC, as
Without evidence, that logical necessity
evidence. amended)
there is no proof. which rests upon a
Effect or result of party at any particular
Medium of proof. Burden of proof or
evidence. time during the trial to
“onus probandi”
create a prima facie
traditionally refers to
Factum Probandum vs. Factum Probans case in his favor or to
the obligation of a party
overthrow one when
to a litigation to
FACTUM created against him.
FACTUM PROBANS persuade the court that
PROBANDUM (People of the
he is entitled to relief.
The facts or material Philippines v. CA, G.R.
The fact or proposition (Riano, 2019)
evidencing the fact or No. 183652, 25 Feb.
to be established. 2015)
proposition to be
established. Duty of a party to
The fact to be proved, The probative or present evidence to
the fact which is in evidentiary fact establish his claim or Duty of the party to go
issue and to which the tending to prove the defense by the amount forward with the
evidence is directed. fact in issue. of evidence required by evidence to overthrow
Intermediate or law, which is the prima facie
Ultimate Facts. preponderance of evidence against him.
evidentiary facts.
Hypothetical. Existent. evidence in civil cases. (Bautista v. Sarmiento,
(Supreme Transliner, G.R. No. L-45137,
Illustration: If P claims to have been injured by the Inc. v. CA, G.R. No. September, 23, 1985)
negligence of D, while D denies having been 125356, November 21, (Bautista v. Sarmiento,
negligent, the negligence is the fact to be 2001) (Supreme G.R. No. L-45137, 23
established. It is the factum probandum. The Transliner, Inc. v. CA, Sept. 1985)
evidence offered by P constitutes the material to G.R. no. 125356, 21 Nov.
prove the liability of D. The totality of the evidence 2001)
to prove the liability is the factum probans. (Riano, Never shifts. (Sec. 1, May shift from one
2019) Rule 131, ROC, as party to the other in
amended) the course of the
It remains throughout proceedings,
the entire case exactly depending on the
where the pleadings exigencies of the case.
originally placed it or (Sec. 1, Rule 131, ROC,
with the party upon as amended)

Evidence
whom it is imposed. plaintiff makes out a prima facie case in his favor,
(Republic v. Mupas, G.R. the duty or the burden of evidence shifts to
No. 181892, September defendant to controvert plaintiff’s prima facie case,
8, 2015) (Republic v. otherwise, a verdict must be returned in favor of
Mupas, G.R. No. 181892, plaintiff. Hence, the plaintiff must establish the
08 Sept. 2015) failure to pay on the part of the defendant, the latter,
Generally determined on the other hand, has to prove their defense that
by the developments the obligation was extinguished.
of the trial, or by the
provisions of In this case, BPI, as plaintiff, had to prove that
Generally determined
substantive law or spouses De Leon failed to pay their obligations
by the pleadings filed
procedural rules under the promissory note. The spouses, on the
by the party.
which may relieve the other hand, had to prove their defense that the
party from presenting obligation was extinguished by the loss of the
evidence of the facts mortgaged vehicle, which was insured. The mere
alleged. loss of the mortgaged vehicle does not automatically
relieve the spouses De Leon of their obligation. As
Test for determining where the Burden of Proof provided in the Promissory Note with Chattel
lies Mortgage, the mortgagor must notify and submit
proof of loss to the mortgagee. (De Leon v. BPI, G.R.
Ask which party to an action or suit will fail if he No. 184565, 20 Nov. 2013)
offers no evidence competent to show the facts
averred as the basis for the relief he seeks to obtain.
B. ADMISSIBILITY
3. EQUIPOISE RULE
A situation where the evidence of the parties is

1. REQUISITES (RULE 128)
evenly balanced, or there is doubt on which side the
evidence preponderates (or weighs more heavily).
1. The evidence is relevant to the issue; and
(Rivera v. Court of Appeals, G.R. No. 115625, January
23, 1998) (Rivera v. Coart of Appeals, G.R. No. 115625, NOTE: It is relevant if it has such a relation to
23 Jan. 1998)
the fact in issue as to induce belief in its
existence or non-existence. (Sec. 4, Rule 128,
It is based on the principle that no one shall be ROC, as amended)
deprived of his life, liberty or property without due
process of law. (Sec. 1, Art III, 1987 Constitution)
2. The evidence is competent.
In criminal cases, where the evidence is evenly

NOTE: The evidence is competent when it is not
balanced, the constitutional presumption of
excluded by the Constitution, the law or the
innocence tilts the scales in favor of the accused. Rules of Court. (Sec. 3, Rule 128, ROC, as
amended). Competency is determined by the
In civil cases, when the evidence of the parties is in
prevailing exclusionary rules of evidence.
equipoise, the party who has the burden of proof
loses.
2. EXCLUSIONARY RULES
Q: In a collection case, who has the burden of proof? Rules on evidence consist of established precepts
for inclusion or exclusion of factum probans toward
A: The party who alleges a fact has the burden of the desired factum probandum. Whatever tends in
proving it. In the course of trial in a civil case, once
reason to establish a fact in issue is relevant, and

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Remedial Law
that which does not answer this requirement is not. of 2009) (Sec. 8, R.A. No. 9745 or Anti Torture Act
(Peralta & Peralta, Jr., 2020) of 2009)
Evidence is admissible when it is relevant to the C. Under the Rules of Court, Rule 130 is the
issue and is not excluded by the Constitution, the applicable rule in determining the admissibility
law, or these rules. (Sec. 3, Rule 128, ROC, as of evidence.
amended)
D. Court issuances, such as:
A. Constitutional Exclusionary Rules
1. Rules on Electronic Evidence, e.g., compliance
1. Unreasonable searches and seizures; (Sec. 2, with authentication requirements for electronic
Art. III, 1987 Constitution) evidence;
2. Privacy of communication and correspondence; 2. Rule on Examination of Child Witness, e.g.,
(Sec. 3, Art. III, 1987 Constitution) sexual abuse shield rule; and
3. Right to counsel, prohibition on torture, force, 3. Judicial Affidavit Rule.
violence, threat, intimidation, or other means
which vitiate the free will; prohibition on secret Admissibility vs. Weight
detention places, solitary, incommunicado; and
(Sec. 12, Art. III, 1987 Constitution) WEIGHT
4. Right against self-incrimination. (Sec. 17, Art. III, ADMISSIBILITY (PROBATIVE
1987 Constitution) VALUE)
Refers to the question
B. Statutory Exclusionary Rules of whether or not the
Refers to the question
evidence is to be
of whether or not the
1. Lack of documentary stamp tax in documents, considered at all.
evidence proves an
instruments, or papers required by law to be (Atienza v. Board of
issue.
stamped makes such documents inadmissible Medicine, G.R. No.
as evidence in court until the requisite stamp/s 177407, 09 Feb. 2011)
shall have been affixed thereto and cancelled. Pertains to evidence
(Sec. 201, NIRC) already submitted
and its tendency to
Depends on relevance
2. Any communication obtained by a person, not convince or persuade.
and competence.
being authorized by all the parties to any (Tating v. Marcella,
private communication, by tapping any G.R. No. 155208, 27
wire/cable or using any other Mar. 2007)
device/arrangement to secretly
overhear/intercept/record such information Doctrine of the Fruit of the Poisonous Tree
by using any device, shall not be admissible in
evidence in any judicial/quasi- Illegally obtained evidence shall be inadmissible in
judicial/legislative/administrative hearing or evidence for any purpose in any proceeding because
investigation. (Secs. 1 and 4, R.A. No. 4200, Anti- they are the “fruit of the poisonous tree.”
Wire Tapping Act)
E.g., Evidence obtained without a valid search
3. Any confession, admission or statement warrant subject to exceptions; issuance of general
obtained as a result of torture shall be warrants that encourage law enforcers to go on
inadmissible in evidence in any proceedings, fishing expeditions (Sec. 3 (2), Art. III, 1987
except if the same is used as evidence against a Constitution) (2010 BAR)
person or persons accused of committing
torture. (Section 8, RA 9745 or Anti Torture Act

Evidence
Illegally seized evidence is obtained as a direct Rule 130, ROC, as amended. The statement by a bus
result of the illegal act, whereas the "fruit of the driver immediately after the collision that he dozed
poisonous tree" is the indirect result of the same off in the wheel while driving may be admissible as
illegal act. The "fruit of the poisonous tree" is at least an admission under Sec. 27, Rule 130, ROC, as
once removed from the illegally seized evidence, but amended and/or as part of res gestae pursuant to
it is equally inadmissible. The rule is based on the Sec. 44, Rule 130, ROC, as amended.
principle that evidence illegally obtained by the
State should not be used to gain other evidence Conditional Admissibility (2011 BAR)
because the originally illegally obtained evidence
taints all evidence subsequently obtained. (People v. Where the evidence at the time of its offer appears
Alicando, G.R. No. 117487, 12 Dec. 1995) to be immaterial or irrelevant unless it is connected
with the other facts to be subsequently proved, such
Relevancy of Evidence evidence may be received on condition that the
other facts will be proved thereafter, otherwise the
Evidence must have such a relation to the fact in evidence already given will be stricken out.
issue as to induce belief in its existence or non- (Regalado, 2008)
existence. (Sec. 4, Rule 128, ROC, as amended)
Curative Admissibility
The court will admit only evidence which is relevant
to the issue. (Sec. 3, Rule 128, ROC, as amended) It allows a party to introduce otherwise
inadmissible evidence to answer the opposing
Collateral matters party’s previous introduction of inadmissible
evidence. (Riano, 2019)
Collateral matters refer to matters other than the
fact in issue. Illustration: In an action for damages arising from
car accident, the plaintiff, despite objection by the
GR: Evidence on collateral matters is not allowed. defendant, was allowed to introduce evidence to
show that, on several occasions, the defendant, in
Illustration: Motive of a person or his reputation is the past, had injured pedestrians because of
a matter that may be considered collateral to the negligence. Following the concept of curative
subject of controversy. admissibility, the court may be asked to give the
defendant the chance to contradict or explain his
XPN: It is allowed when it tends in any reasonable alleged past acts and to show evidence of his past
degree to establish the probability or improbability acts of diligence to counteract the prejudice which
of the fact in issue. (Sec. 4, Rule 128, ROC, as the improperly admitted evidence may have caused.
amended) (Riano, 2019)
Multiple Admissibility (2005 BAR) Thus, a party who first introduces either irrelevant
or incompetent evidence into the trial cannot
Where the evidence is relevant and competent for complain of the subsequent admission of similar
two or more purposes, such evidence should be evidence from the adverse party relating to the
admitted for any or all purposes for which it is subject matter. (Commonwealth v. Alexander, 5
offered provided it satisfies all the requirements of S.W.rd 104, 26 Aug. 1999) Conversely, the doctrine
law for its admissibility (Regalado, 2008). should not be invoked where evidence was properly
admitted.
Illustration: Depending upon circumstances, the
declaration of a dying person may be admissible for
two or more purposes. It may be offered as a dying
declaration under Sec. 38, Rule 130, ROC, as
amended, and as part of res gestae under Sec. 44,

e

Remedial Law
Multiple, Conditional, and Curative Difference between Direct Evidence and

Admissibility Circumstantial Evidence
In gist, if relevant and competent, evidence may be The difference involves a relationship of the fact
(1) Conditional, which connotes tentative or inferred to the facts that constitute the offense.
temporary evidence; (2) Multiple, where it is Their difference does not relate to the probative
legally permissible for different aspects; or (3) value of the evidence. Direct evidence proves a
Curative, when it is intended to receive challenged fact without drawing any inference.
inadmissible evidence from a party to neutralize a Circumstantial evidence, on the other hand,
previously accepted inadmissible evidence from the indirectly proves a fact in issue, such that the fact-
other party. (Peralta & Peralta, 2020) finder must draw an inference or reason from
circumstantial evidence. (Planteras v. People, G.R.
Direct Evidence No. 238889, 03 Oct. 2018)
That which proves a fact without the need to make Q: X and Y were charged with Robbery with
an inference from another fact. (Riano, 2019) Homicide. The prosecution established that on
the day of the incident, J and L were having a
Circumstantial Evidence or Indirect Evidence conversation in their house when two (2)
persons asked them where the house of the
That which proves a fact in issue indirectly through victim was located. J and L, in response, pointed
an inference which the fact finder draws from the to the house of their neighbor. Later, J and L
evidence established. (People v. Matito, G.R. No. heard someone shouting and moaning inside
144405, 24 Feb. 2004) the house of the victim, who was their neighbor.
J went out of the house and saw somebody
It may happen that no prosecution witness has waving a flashlight inside the victim's house, as
actually seen the commission of the crime. However, if looking for something. This prompted him to
jurisprudence tells us that direct evidence of the call L and V. A few minutes later, a man wearing
crime is not the only matrix from which a trial court a black t-shirt and carrying a backpack, followed
may draw its conclusion and finding of guilt. The by another man wearing a green shirt and
rules on evidence allow a trial court to rely on carrying a pair of shoes, came out of the house of
circumstantial evidence Circumstantial Evidence to the victim. J and L immediately ran after them
support its conclusion of guilt. unto the basketball court and saw that the two
were already on board a black Yamaha
Illustration: The prosecution presented motorcycle. Luckily, V arrived with the barangay
corroborating evidence which constitute an tanod and immediately accosted the two men. J,
unbroken chain leading to the inevitable conclusion L, and V recognized the two as the same persons
that accused is guilty of killing the victim. For who asked them earlier about the location of
instance, the presence of gunpowder nitrates on Laurora's house. The man wearing black shirt
accused after a paraffin test; the firearm used in the was identified as the accused-appellant, while
killing which could either be a .38 caliber or 9 mm the one wearing green shirt was identified as Y.
pistol details with the testimony of a witness that he Recovered from their possession were personal
saw accused carrying a .38 caliber short firearm properties belonging to the victim. When
which was later found to have been recently fired; Accused-appellant was further frisked, a screw
and the absence of gunpowder nitrates on the hands driver was found in his possession. V then asked
of the victim after a paraffin test which belies the victim's laundrywoman to check on the
accused’s claim that he was shot by the victim or victim. When she returned, she told them that
that the latter exchanged fire with a police office. the victim was killed. The laundrywoman also
(People v. Alawig, G.R. No. 187731, 13 Sept. 2013) identified that the green shirt worn by Y belongs
to the victim. Is the RTC correct in convicting the
accused based on circumstantial evidence?

Evidence
A: YES. The lack or absence of direct evidence does Positive Evidence

not necessarily mean that the guilt of the accused
cannot be proved by evidence other than direct Exists when the witness affirms in the stand that a
evidence. Direct evidence is not the sole means of certain state of facts does exist or that a certain
establishing guilt beyond reasonable doubt, event happened.
because Circumstantial evidence, if sufficient, can
supplant the absence of direct evidence. The crime Negative Evidence
charged may also be proved by circumstantial
evidence, sometimes referred to as indirect or Exists when the witness states that an event did not
presumptive evidence. In this case, the Court agreed occur or that the state of facts alleged to exist does
with the RTC and CA that the circumstantial not actually exist. (Riano, 2019)
evidence proven by the prosecution sufficiently
established that appellant committed the offense Greater probative value is given to evidence that is
charged. (People v. Papillero, G.R. No. 229087, 17 June positive in nature than that which is accorded to
2020) evidence that is negative in character. (Republic v.
Bautista, G.R. No. 169801, 11 Sept. 2007)
Cumulative Evidence and Corroborative
Evidence NOTE: When a witness declares of his personal
knowledge that a fact did not take place, that is
Cumulative Evidence refers to evidence of the same actually positive testimony since it is an affirmation
kind and character as that already given and that of the truth of a negative fact. (Regalado, 2008)
tends to prove the same proposition. (Wyne v.
Newman, 75 Va., 811, 817) Denial as Negative Evidence
Corroborative Evidence is one that is Denial is considered by the Court to be a very weak
supplementary to that already given tending to form of defense and can never overcome an
strengthen or confirm it. It is additional evidence of affirmative or positive testimony particularly when
a different character to the same point. (Edwards v. the latter comes from the mouth of a credible
Edwards, Tenn. App., 501 S.W. 2d 283. 289) witness. (People v. Mendoza, G.R. No. 146693-94, 31
July 2003)
An extrajudicial confession made by an accused
shall not be sufficient ground for conviction, unless The defense of denial is viewed with disfavor for
corroborated by evidence of corpus delicti. (Sec. 3, being inherently weak. To be worthy of
Rule 133, ROC, as amended) consideration at all, denials should be substantiated
by clear and convincing evidence. (Riano, 2019)
NOTE: Corroborative testimony is not always
required. Competent Evidence
The law does not require that the testimony of a One that is not excluded by law in a particular case.
single witness must be corroborated except where Competence, in relation to evidence in general,
expressly mandated. The weight and sufficiency of refers to eligibility of an evidence to be received as
evidence is determined not by the number of the such. The test of competence is the Constitution, the
witnesses presented but by the credibility, nature, laws or the rules.
and quality of the testimony. (People v. Gapasan, G.R.
No. 110812, 29 Mar. 1995) Credibility
The worthiness of belief, that quality which renders

a witness worthy of belief. (Black’s Law Dictionary,
5th Ed., p.330)

e

Remedial Law
NOTE: Admissible evidence is not necessarily Function of Judicial Notice

credible evidence. Admissibility does not guarantee
credibility. (Riano, 2019) It dispenses the presentation of evidence and fulfills
the purpose for which the evidence is designed to
Findings and conclusions of the trial court on the fulfill. Its function is to abbreviate litigation by
credibility of witnesses are entitled to great respect admission of matters that needs no evidence
because they have the advantage of observing the because judicial notice is a substitute for formal
demeanor of witnesses as they testify. (Riano, 2019) proof of a matter by evidence. (Riano, 2019)
When affirmed by the appellate court, it is accorded Kinds of judicial notice

full weight and credit as well as great respect, if not
conclusive effect, except when facts and 1. Mandatory – insofar as those matters
circumstances of weight and influence were enumerated under Sec. 1, Rule 129;
overlooked or the significance of which was
misappreciated or misinterpreted by the lower 2. Discretionary – on matters which are of
courts. (Riano, 2019) public knowledge, or are capable of
unquestionable demonstration, or ought to
3. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS be known to judges because of their
(Rule 129) functions (Sec. 2, Rule 129, ROC, as amended)
Facts that need not be proved (JN-JA-C-D-I-F-R- Mandatory Judicial Notice

A)
When the matter is subject to a mandatory judicial
1. Those of which the courts may take Judicial notice, no motion or hearing is necessary for the
Notice (Rule 129, ROC, as amended); court may take judicial notice of a fact.
2. Those that are Judicially Admitted (Rule 129,
ROC, as amended); When Judicial Notice is Mandatory
3. Those that are Conclusively presumed (Rule (E-PO-L-A-P-O-L-M-G)
4. Those that are Disputably presumed but 1. Existence and territorial extent of states;
uncontradicted (Rule 131, ROC, as amended); 2. Political history, forms of government and
5. Immaterial allegations; symbols of nationality;
6. Facts admitted or not denied provided they 3. Law of nations;
have been sufficiently alleged (Sec. 11, Rule 8, 4. Admiralty and maritime courts of the world and
ROC, as amended); their seals;
7. Res Ipsa Loquitur; and 5. Political constitution and history of the
8. Admissions by adverse party (Rule 26, ROC, as Philippines;
amended) 6. Official acts of legislative, executive and judicial
departments of the National Government of the
Judicial Notice Philippines;
7. Laws of nature;
It is the cognizance of certain facts which judges 8. Measure of time; and
may properly take and act upon without proof 9. Geographical divisions (Sec. 1, Rule 129, ROC, as
because they are supposed to be known to them. It amended)
is based on considerations of expediency and
convenience. It displaces evidence, being equivalent NOTE: The list here is EXCLUSIVE.
to proof. (Regalado, 2008)

Evidence
When Judicial Notice of a fact may be taken No hearing is required in the enumeration under
Sec. 2, Rule 129.
During the pre-trial and the trial, the court, motu
proprio or upon motion, shall hear the parties on the Requisites for the application of the Principle of
propriety of taking judicial notice of any matter. Discretionary Judicial Notice
Before judgment or on appeal, the court, motu 1. The matter must be one of common and general
proprio or upon motion, may take judicial notice of knowledge;
any matter and shall hear the parties thereon if such 2. It must be well and authoritatively settled and
matter is decisive of a material issue in the case. not doubtful or uncertain; and
(Sec. 3, Rule 129, ROC, as amended) 3. It must be one which is not subject to a
reasonable dispute in that it is either:
When Judicial Notice is Discretionary (P-D-F)
(2005 BAR) a. Generally known within the territorial
jurisdiction of the trial court; or
1. Matters which are of Public knowledge; b. Capable of accurate and ready
determination by resorting to sources
NOTE: Public knowledge are those matters whose accuracy cannot reasonably be
coming to the knowledge of men generally in questionable. (Expert Travel & Tours, Inc. v.
the course of ordinary experiences of life, or CA, G.R. No. 152392, 26 May 2005)
they may be matters which are generally
accepted by mankind as true and are capable of Test of Notoriety
ready and unquestioned demonstration.
Whether the fact involved is so notoriously known
2. Capable of unquestionable Demonstration; or as to make it proper to assume its existence without
proof.
NOTE: Matters which are capable of
unquestionable demonstration are facts, Mandatory Judicial Notice vs. Discretionary
theories and conclusions which have come to be Judicial Notice
established and accepted by the specialists in
the areas of natural science, natural MANDATORY DISCRETIONARY
phenomena, chronology, technology, JUDICIAL NOTICE JUDICIAL NOTICE
geography, statistical facts and other fields of Court is compelled to Court is not compelled
professional and scientific knowledge. take judicial notice. to take judicial notice.
(Francisco, 1996) May be at court’s own
Takes place at court’s
initiative or on request
initiative.
3. Ought to be known to judges because of their of a party.
judicial Functions. (Sec. 2, Rule 129, ROC, as No motion or hearing. Needs hearing.
amended)
Instances when the Court takes Judicial Notice
NOTE: Judicial Notice is not Judicial Knowledge. The
mere personal knowledge of the judge is not the 1. The existence and location within the territory
judicial knowledge of the court, and he is not over which they exercise jurisdiction of great
authorized to make his individual knowledge of a rivers and lakes, and their relation to provincial
fact, not generally or professionally known, the boundaries, of navigability of streams,
basis of his action. Judicial cognizance is taken only constituting highway commerce and notorious
of those matters which are "commonly" known. facts concerning the same. (Banatao v. Tuliao,
(State Prosecutors v. Muro, A.M. No. RTJ-92-876, 19 G.R. No. 12264, 23 Sept. 1918)
Sept. 1994)

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Remedial Law
2. The financial problem is a factor that beset the (Barut v. People of the Philippines, G.R. No.
sugar industry; that there is crisis in the sugar 167454, 24 Sept. 2014)
industry. (Hilado v. Leogardo, Jr., G.R. No. L-
65863, 11 June 1986) Matters NOT Proper Subject of Judicial Notice
3. The general increase in rentals of real estate 1. GR: Courts are not mandated to take judicial
especially of business establishments. notice of the practice of banks in conducting
(Commander Realty, Inc. v. CA, G.R. No. L-77227, background checks on borrowers and sureties.
29 Nov. 1988)
XPN: They nevertheless may do so under the
4. The reality that, especially in local elections, rule on discretionary judicial notice
political rivals or operators benefited from the Discretionary Judicial Notice. (Solidbank
usually belated decisions by COMELEC on Corporation v. Mindanao Ferroalloy Corp., G.R.
petitions to cancel or deny due course to CoCs No. 153535, 28 July 2005)
of potential nuisance candidates. (Dela Cruz v.
Commission on Elections, G.R. No. 192221, 13 2. GR: Courts are not authorized to take judicial
Nov. 2012) notice of the contents of the records of other
cases even when said cases have been tried or
5. How rapists are not deterred by the presence of are pending in the same court or before the
people nearby, such as the members of their same judge.
own family inside the same room, with the
likelihood of being discovered, since lust XPN: They may, however, take judicial notice of
respects no time, locale or circumstance. a decision or the facts prevailing in another case
(People of the Philippines v. Neil B. Colorado, G.R. sitting in the same court if:
No. 200792, 14 Nov. 2012)
a. the parties present them in evidence, absent
6. The government is and has for many years been any opposition from the other party; or
financially strapped, to the point that even the b. the court, in its discretion, resolves to do so.
most essential services have suffered serious (Land Bank v. Yatco Agricultural, G.R. No.
curtailment. (La Bugal-B’Laan Tribal Assoc. v. 172551, 15 Jan. 2014)
Ramos, G.R. No. 127882, 01 Dec. 2004)
3. Proprietary acts of GOCCs, e.g., management
7. That Oakwood standoff was widely known and contract entered into by the GOCC (Asian
was extensively covered by the media made it a Terminals v. Malayan Insurance, G.R. No. 171406,
proper subject of judicial notice. (Magdalo Para April 4, 2011). (Asian Terminals v. Malayan Insurance,
sa Pagbabago v. COMELEC, G.R. No. 190793, 19 G.R. No. 171406, 04 April 2011)
June 2012)
4. The assessed value of realty.
8. Senate Report on the Maysilo Estate being an 5. Administrative regulation of a statute that is not
official act of the legislative department of the yet effective.
National Government of the Philippines. (CLT 6. No judicial notice is taken of whiplash injury
Realty Development Corporation v. Hi-Grade since it is not capable of unquestionable
Feeds Corporation, et al., G.R. No. 160684, 02 demonstration and the courts lack the proper
Sept. 2015) medical knowledge to assume this fact. (Dela
Llana v. Biong, G.R. No. 182356, 04 Dec. 2013)
9. Moral damages and death indemnity require
neither pleading nor evidence simply because NOTE: Judicial knowledge is different from
death through crime always occasions moral judicial notice. Judicial knowledge is
sufferings on the part of the victim’s heirs. knowledge of the judge. Judicial notice must be
knowledge of everyone or almost everyone

Evidence
such that there is no doubt, it is certain, and When a Foreign Law refers to the Law of Nations
that it is well-settled. (Sps. Latip v. Chua, G.R.
No. 177809, 16 Oct. 2009) The Philippines adopts the generally accepted
principles of international law as part of the law of
7. Criminal activities such as robbery and the land. (Sec. 2, Art. II, 1987 Constitution of the
kidnappings are becoming daily fares in the Philippines)
society. (New Sun Valley Homeowner’s
Association v. Sangguniang Barangay, Being part of the law of the land, they are therefore,
Barangay Sun Valley, Parañaque City, G.R. No. technically in the nature of local laws and hence, are
156686, 27 July 2011) subject to mandatory judicial notice under Sec. 1 of
Rule 129. (Riano, 2019)
8. Actual Damages. (Barut v. People of the
Philippines, G.R. No. 167454, 24 Sept. 2014) Rules regarding Judicial Notice of Municipal or
City Ordinances
Judicial Notice of Foreign Laws (2005 BAR)
1. MTCs are required to take judicial notice of the
GR: Courts cannot take judicial notice of foreign ordinances of the municipality or city wherein
laws. They must be alleged and proved. they sit.
XPN: When said laws are within the actual 2. RTCs must take judicial notice of ordinances in
knowledge of the court and such laws are: force in the municipalities within their
jurisdiction only:
1. Well and generally known; or
2. Actually ruled upon in other cases before it; and a. When expressly authorized to do so by
none of the parties claim otherwise. (PCIB v. statute; or
Escolin, G.R. Nos. L-27860 and L-27896, G.R. No.
29 Mar. 1974) b. In case on appeal before them and wherein
the inferior court took judicial notice of an
Doctrine of Processual Presumption ordinance involved in the same case.
In international law, the party who wants to have a 3. Appellate courts may also take judicial notice of
foreign law applied to a dispute or case has the ordinances not only because the lower courts
burden of proving the foreign law. Where a foreign took judicial notice thereof but because these
law is not pleaded or even if pleaded, is not proved, are facts capable of unquestionable
the presumption is that the foreign law is same as demonstration. (Riano, 2019)
ours. (ATCI Overseas Corporation v. Echin, G.R. No.
178551, 11 Oct. 2010) Rules on Judicial Notice of Records of another
case previously tried
When Foreign law is part of a Published
Treatise, Periodical or Pamphlet GR: Courts are not authorized to take judicial notice
of the contents of the records of other cases, even
When the foreign law is part of a published treatise, when such cases have been tried or are pending in
periodical or pamphlet and the writer is recognized the same court, and notwithstanding the fact that
in his profession or calling as expert in the subject, both cases may have been heard or are actually
the court, may take judicial notice of the treatise pending before the same judge. (Calamba Steel
containing the foreign law. (Sec. 48, Rule 130, ROC, Center, Inc. v. CIR, G.R. No. 151857, 28 Apr. 2005)
as amended)

e

Remedial Law
XPNs: witness on the same matter. Each magistrate who

hears the testimony of a witness is called upon to
1. When in the absence of any objection, with the make his own appreciation of the evidence. (People
knowledge of the opposing party, the contents v. Langit, G.R. Nos. 134757-58, 04 Aug. 2000)
of said other cases are clearly referred to by title
and number in a pending action and adopted or Judicial Admissions
read into the record of the latter;
These are admissions, oral or written, made by a
2. When the original record of the other case or party in the course of the proceedings in the same
any part of it is actually withdrawn from the case, which do not require proof. (Sec. 4, Rule 129,
archives at the court’s discretion upon the ROC, as amended)
request, or with the consent, of the parties, and
admitted as part of the record of the pending Requisites of Judicial Admission (P-C-OW)
case (Jumamil v. Cafe, G.R. No. 144570, 21 Sept.
2005); 1. It must be made by a Party to the case or his
counsel;
3. When the action is closely interrelated to 2. It must be made in the Course of the
another case pending between the same proceedings in the same case; and
parties; 3. It can be Oral or Written. (Sec. 4, Rule 129, ROC,
as amended)
4. Where the interest of the public in ascertaining
the truth are of paramount importance; Judicial Admissions vs. Extrajudicial Admissions
5. In cases seeking to determine what is JUDICIAL EXTRAJUDICIAL

reasonable exercise of discretion or whether ADMISSIONS ADMISSIONS
the previous ruling is applicable in a case under Those made out of
Those made in the
consideration; or court or in a judicial
course of the
proceeding other than
proceeding in the same
6. Where there is finality of a judgment in another the one under
case.
case that was previously pending consideration.
determination and therefore, res judicata. Do not require proof
(Herrera, 1999) and may be
contradicted only by
Regarded as evidence
Q: Anna and Badong were accused of killing showing that it was
and must be offered as
Cathy. However, only Anna was arrested since made through palpable
such, otherwise the
Badong went into hiding. After trial, Anna was mistake or that the
court will not consider
acquitted of the charge in a decision rendered by imputed admission
it in deciding the case.
Judge Santos. Subsequently, Badong was was not, in fact, made.
arrested and brought to trial. After trial, Badong (Sec. 4, Rule 129, ROC,
was found guilty of homicide in a decision as amended)
rendered by Judge Yantok, the judge who Judicial admissions
replaced Judge Santos after the latter retired. On need not be offered in
appeal, Badong argues that Judge Yantok should evidence since it is not
Requires formal offer
have taken judicial notice of the acquittal of evidence. It is superior
for it to be considered.
Anna rendered by Judge Santos. Is Badong to evidence and shall be
correct? considered by the court
as established.
A: NO. The appreciation of one judge of the Conclusive upon the
testimony of a certain witness is not binding on Rebuttable.
admitter.
another judge who heard the testimony of the same

Evidence
Admissible even if self- Not admissible if self- 2. They cannot be contradicted because they are
serving. serving. conclusive upon the party making it. (Solivio v.
Subject to cross- Not subject to cross- CA, G.R. No. 83484, 12 Feb. 1990)
examination. examination.
Admissions made in pleadings which were NOT
Different Forms of Judicial Admission filed with the court
1. Oral – Verbal waiver of proof made in open Admissions made therein are not judicial
court, a withdrawal of contention, or disclosure admissions:
made before the court, or admission made by
witness in his testimony or deposition; 1. If signed by the party litigant himself or
herself – Considered as extrajudicial admission.
2. Writing – Pleading, bill of particulars, 2. If signed by the counsel – Not admissible
stipulation of facts, request for admission, or a because a counsel only binds his or her client
judicial admission contained in an affidavit with respect to admissions in open court and in
used in the case (Programme Inc. v. Province of pleadings actually filed with the court. (Riano,
Bataan, G.R. No. 144635, 26 June 2006) 2019)
How Judicial Admissions are made Averments in pleadings which are not deemed
admissions
Judicial admissions may be made in:
1. Immaterial allegations (Sec. 11, Rule 8, ROC, as
1. The pleadings filed by the parties; amended);
2. Conclusions, non-ultimate facts in the pleadings
2. The course of the trial either by verbal or (Sec 1, Rule 8, ROC, as amended); and
written manifestations or stipulations, 3. Amount of unliquidated damages (Sec. 11, Rule
including depositions, written interrogatories 8, ROC, as amended)
and requests for admissions; or
Effect of an Invalid and Ineffective Denial of
3. Other stages of the judicial proceedings, as in Actionable Documents Attached to the
pre-trial. (Binarao v. Plus Builders, Inc., G.R. No. Complaint
154430, 16 June 2006)
When an action or defense is founded upon an
Two ways in which admissions are made in actionable document, the genuineness and due
pleadings execution of the same instrument shall be deemed
admitted unless it is specifically denied under oath.
1. Actual Admission – When a party categorically (Sec. 8, Rule 8, ROC, as amended)
admits a material allegation made by the
adverse party. Failure to deny the genuineness and due execution
of said document amounts to a judicial admission.
2. Implied Admission – When the admission is (PNB v. Refrigeration Industries, Inc. G.R. No. 156178,
inferred from the failure to specifically deny the 20 Jan. 2006)
material allegations in the other party’s
pleadings. NOTE: But the failure to deny the genuineness and
due execution of an actionable document does not
Effect of Judicial Admissions preclude a party from arguing against the document
by evidence of fraud, mistake, compromise,
1. They do not require proof; and payment, statute of limitations, estoppel and want
of consideration. He or she is however, precluded
from arguing that the document is a forgery because

e

Remedial Law
the genuineness of document is impliedly admitted. Remedy of a party who made a Judicial
(Acabal v. Acabal, G.R. 148376, 31 Mar. 2005) Admission
Admissions made in Amended Pleadings 1. In case of written admission – File a motion to

withdraw such pleading, or any other written
Admissions in a pleading which had been instrument containing such admission; and
withdrawn or superseded by an amended pleading, 2. In case of oral admission – The counsel may
although filed in the same case, are considered as move for the exclusion of such admission.
extrajudicial admissions.
Admissions in the Pre-trial of Civil Cases
Pleadings that have been amended disappear from
the record, lose their status as pleadings, and cease Pre-trial is mandatory. One of the purposes of pre-
to be judicial admissions. To be utilized as trial in civil cases is for the court to consider the
extrajudicial admission, they must, in order to have possibility of obtaining stipulations or admissions
such effect, be formally offered in evidence. (Ching of facts. Admissions, therefore, in the pre-trial, as
v. Court of Appeals, G.R. No. 110844, 27 Apr. 2000) well as those made during depositions,
interrogatories or requests for admissions, are all
Rule regarding Self-Serving Evidence deemed judicial admissions because they are made
in the course of the proceedings of the case. (Riano,
Self-serving declaration is one that is made by a 2019)
party, out of court and in his favor. It does not
include the testimony he gives as a witness in court. Admissions in the Pre-trial of Criminal Cases
(People v. Villarama, G.R. No. 139211, 12 Feb. 2003)
Admission made by the accused in the pre-trial of a
This cannot be said of a party’s testimony in court criminal case is not necessarily admissible against
made under oath, with full opportunity on the part him or her. To be admissible, the conditions set
of the opposing party for cross-examination. (People forth by Sec. 2 of Rule 118 must be complied with.
v. Omictin, G.R. No. 188130, 26 July 2010)
All the agreements or admissions made or entered
Effect of a guilty plea made by the accused during the pre-trial conference shall be:
during his arraignment later withdrawn
1. Reduced in writing; and
A plea of guilty entered by the accused may be later 2. Signed by the accused and counsel.
withdrawn at any time before the judgment of
conviction becomes final. Such plea is not Otherwise, they cannot be used against the accused.
admissible in evidence against the accused and is (Sec. 2, Rule 118, ROC, as amended)
not even considered as an extrajudicial admission.
Grounds for contradicting Judicial Admissions C. OBJECT (REAL) EVIDENCE

(RULE 130, A)
1. Upon showing that the admission was made
through palpable mistake; or
2. When it is shown that the imputed admission
Nature of Object (Real) Evidence (2005 BAR)
was not, in fact, made. (Sec. 4, Rule 129, ROC, as
amended)
Objects as evidence are those addressed to the
senses of the court. When an object is relevant to the
NOTE: This argument may be invoked when the
fact in issue, it may be exhibited to, examined or
statement of a party is taken out of context or that
viewed by the court. (Sec. 1, Rule 130, ROC, as
his statement was made not in the sense it is made
amended)
to appear by the other party. (Riano, 2019)

Evidence
It is not limited to the view of an object. It covers the 6. A person’s appearance, where relevant. (People
entire range of human senses: hearing, taste, smell, v. Rullepa, G.R. No. 131516, 05 Mar. 2003)
and touch. (Riano, 2019)
Paraffin Test
Physical evidence is a mute, but eloquent
manifestation of truth and it ranks high in our A test which can establish the presence or absence
hierarchy of trustworthy evidence- where physical of nitrates or nitrites on the hand, but the test alone
evidence runs counter to testimonial evidence, the cannot determine whether the source of the nitrates
physical evidence should prevail. (Bank of the or nitrites was discharge of a firearm.
Philippine Islands v. Reyes, G.R. No. 157177, 11 Feb.
2008) NOTE: The paraffin test Paraffin Test is merely
corroborative evidence, neither proving nor
In criminal cases such as murder/homicide or rape, disproving that a person did indeed fire a gun. The
in which the accused stand to lose their liberty if positive or negative results of the test can be
found guilty, the Supreme Court has, on many influenced by certain factors such as the wearing of
occasions, relied principally upon physical evidence gloves by the subject, perspiration of the hands,
in ascertaining the truth. Where the physical wind direction, etc. (People v. Buduhan, G.R. No.
evidence on record runs counter to the testimonies 178196, 06 Aug. 2008)
of witnesses, the primacy of the physical evidence
must be upheld. (PO1 Ocampo v. People of the A person who tests positive may have handled one
Philippines, G.R. No. 194129, 15 June 2015) or more substances with the same positive reaction
for nitrates such as explosives, fireworks, fertilizers,
NOTE: Documents are object (real) evidence or pharmaceuticals, tobacco and leguminous plants.
Object (Real) Evidence if the purpose is to prove (People v. Cajumocan, G.R. No. 155023, 28 May 2004)
their existence or condition, or the nature of the
handwriting thereon, or to determine the age of the Polygraph Test (Lie Detector Tests)
paper used, or the blemishes or alterations thereon,
as where falsification is alleged. (Regalado, 2008) It is an electromechanical instrument that
simultaneously measures and records certain
Examples of Object (Real) Evidence physiological changes in the human body that are
believed to be involuntarily caused by an
1. Any article or object which may be known or examinee’s conscious attempt to deceive the
perceived using the senses; questioner. (West’s Legal Thesaurus Dictionary,
1986)
2. Examination of the anatomy of a person or of
any substance taken therefrom; A polygraph test operates on the principle that
stress causes physiological changes in the body
3. Conduct of tests, demonstrations or which can be measured to indicate whether the
experiments; subject examination is telling the truth. (Riano,
2019)
4. Examination of representative portrayals of the
object in question (e.g., maps, diagrams); Q: Ron was charged with murder for shooting
Carlo. After trial, Ron was found guilty as
5. Documents, if the purpose is to prove their charged. On appeal, Ron argued that the trial
existence or condition, or the nature of the court should have acquitted him as his guilt was
handwriting thereon or to determine the age of not proved beyond reasonable doubt. He argues
the paper used, or the blemishes or alterations that the paraffin test conducted on him 2 days
(Regalado, 2008); and after he was arrested yielded a negative result.
Hence, he could not have shot Carlo. Is Ron
correct?

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Remedial Law
A: NO. While the paraffin test was negative, such fact be refused if the indecent or immoral objects
alone did not ipso facto prove that Ron is innocent. constitute the very basis of the criminal or civil
A negative paraffin result is not conclusive proof action. (Moran, 1980)
that a person has not fired a gun. It is possible to fire
a gun and yet be negative for nitrates, as when the 2. To require its being viewed in court or in ocular
culprit is wearing gloves or he washes his hands inspection would result in delays,
afterwards. Here, since Ron submitted himself for inconvenience, or unnecessary expenses which
paraffin testing only two days after the shooting, it are out of proportion to the evidentiary value of
was likely he had already washed his hands such object;
thoroughly, thus removing all traces of nitrates
therefrom. (People v. Brecinio, G.R. No. 138534, 17 3. Such Object Evidence would be confusing or
Mar. 2004) misleading, as when the purpose is to prove the
former condition of the object and there is no
Requisites for Admissibility (ReCo-A-C-O) preliminary showing that there has been no
substantial change in said condition; or
1. It must be Relevant and Competent;
4. The Testimonial or Documentary Evidence
2. It must be Authenticated; already presented clearly portrays the object in
question as to render a view thereof
NOTE: To authenticate the object, it must be unnecessary. (Regalado, 2008)
shown that the object is the very thing that is
either the subject matter of the lawsuit or the Q: In a criminal case for murder, the prosecution
very one involved to prove an issue in the case. offered as evidence, photographs showing the
accused mauling the victim with several of the
3. The authentication must be made by a latter’s companions. The person who took the
Competent witness who should identify the photograph was not presented as a witness. Be
object to be the actual thing involved; and that as it may, the prosecution presented the
companions of the victim who testified that they
4. The Object must be formally offered in were the ones in the photographs. The defense
evidence. (Riano, 2019) objected to the admissibility of the photographs
because the person who took the photographs
Purposes of Authentication of Object (Real) was not presented as witness. Is the contention
Evidence of the defense tenable?
1. Prevent the introduction of an object different A: NO. Photographs, when presented in evidence,
from the one testified about; and must be identified by the photographer as to its
2. Ensure that there have been no significant production and testified as to the circumstances
changes in the object’s condition. under which they were produced. The value of this
kind of evidence lies in its being a correct
Circumstances when the court may refuse the representation or reproduction of the original, and
introduction of Object or Real Evidence and rely its admissibility is determined by its accuracy in
on Testimonial Evidence alone portraying the scene at the time of the crime.
1. Its exhibition is contrary to public morals or The photographer, however, is not the only witness
decency; who can identify the pictures he has taken. The
correctness of the photograph as a faithful
NOTE: But if the exhibition of such object is representation of the object portrayed can be
necessary in the interest of justice, it may still proved prima facie, either by the testimony of the
be exhibited, and the court may exclude the person who made it or by other competent
public from such view. Such exhibition may not witnesses who can testify to its exactness and

Evidence
accuracy, after which the court can admit it subject 2. Objects made unique – Those that are made
to impeachment as to its accuracy. Here, the readily identifiable (e.g., a bolo knife with
photographs are admissible as evidence in as much identifying marks on it); and
as the correctness thereof was testified to by the
companions of the victim. (Sison v. People, G.R. Nos. 3. Non-unique objects – Those which have no
108280-83, 16 Nov. 1995) identifying marks and cannot be marked (e.g.,
drops of blood). (Riano, 2019)
Q: Thor was charged with and convicted of the
special complex crime of robbery with homicide NOTE: In case of non-unique objects, the proponent
by the trial court. On his appeal, he asseverates of the evidence must establish a chain of custody.
that the admission as evidence of victim's wallet
together with its contents, violates his right Chain of Custody in relation to Section 21 of the
against self-incrimination. Likewise, Thor Comprehensive Dangerous Drugs Act Of 2002
sought for their exclusion because during the Purpose
custodial investigation, wherein he pointed to
the investigating policemen the place where he To guaranty the integrity of the physical evidence
hid the victim's wallet, he was not informed of and to prevent the introduction of evidence which is
his constitutional rights (Miranda rights). not authentic. Where the exhibit is positively
Decide the case. identified, the chain of custody of physical evidence
is irrelevant.
A: The Right Against Self-Incrimination does not
apply to the instant case where the evidence sought Since it is called a chain, there must be links to the
to be excluded is not an incriminating statement but chain. The links are the people who actually handled
an Object Evidence. Infractions on the so-called or had custody of the object. Each link must show
“Miranda rights” render inadmissible only the how he received the object, how he handled it to
extrajudicial confession or admission made during prevent substitution and how it was transferred to
custodial investigation. The admissibility of other another. Each must testify to make the foundation
evidence is not affected even if obtained or taken in complete.
the course of custodial investigation. Concededly,
Thor was not informed of his rights during the Links in the chain of custody
custodial investigation. Neither did he execute a
written waiver of these rights in accordance with 1. Seizure and marking, if practicable, of the
the constitutional prescriptions. Nevertheless, these illegal drug recovered from the accused;
constitutional shortcuts do not affect the 2. Turnover of the illegal drug by the
admissibility of the victim's wallet and its contents. apprehending officer to the investigating
(People v. Malimit, G.R. No. 109775, 14 Nov. 1996) officer;
3. Turnover by the investigating officer to the
Categories of Object (Real) Evidence for forensic chemist for laboratory examination;
purposes of Authentication and
4. Turnover and submission of the marked illegal
1. Unique objects – Those that have readily drug by the forensic chemist to court. (People
identifiable marks (e.g., a caliber 40 gun with v. Gayoso, G.R. No. 206590, 27 Mar. 2017)
serial number XXX888);

e

Remedial Law
Procedure to be followed in the custody and handling of seized dangerous drugs (Sec. 21, Art. II of R.A. No.
9165, as amended by R.A. No. 10640)
Apprehending team shall, immediately after seizure and confiscation, make a physical inventory and photograph of the
same in the
presence of:
1. Accused or the` person/s from which such

items were confiscated and/or seized;
2. His/her representative or counsel; WITH
3. A representative of the National Prosecution Service (NPS) OR the media; AND
4. Any elected public official who shall be required to sign the copies of the inventory and be given a copy. (People v.
Santos, G.R. No. 243627, 27 Nov. 2019)
+
The objects seized must be submitted to PDEA for qualitative and quantitative examination within 24 hours from the
confiscation/seizure.
i
The forensic laboratory examiner is required to issue within 24 hours after receipt of the drugs a certification of the
forensic laboratory examination results which shall be done under oath.
i
After filing of the criminal case, the court shall, within 72 hours, conduct an ocular inspection and the PDEA shall within
24 hours proceed with the destruction of the same.
i
Dangerous Drugs Board shall then issue a sworn certification as to the fact of destruction or burning to be submitted to
the court. Also, to be submitted are the representative samples (only minimum quantity) of the substances in the
custody of PDEA.
NOTE: The alleged offender or his/her representative or counsel shall be allowed to personally observe all the
above proceedings. His presence shall NOT constitute an admission of guilt.
Strict Compliance with Section 21 receipt for “a sachet containing marijuana

fruiting tops.” This was submitted to the QCPD
Q: Banding was arrested at Mercury Drug Store Crime Laboratory. Banding was later on charged
Lagro branch in Quezon City for illegal sale of with violation of Section 5 of R.A. No. 9165.
dangerous drugs (Section 5, R.A. No. 9165). The Banding argues that he cannot be convicted due
dangerous drugs sachets containing white to lapses in the chain of custody of the drugs
crystalline substance were marked by PO2 seized. Can Banding be held criminally liable
Inway with AB-20-09-10. To avoid the on-going under Section 5 of R.A. No. 9165?
commotion in the area, the team proceeded to
Camp Karingal which is 17 kilometers car ride A: Banding cannot be convicted under Section 5 of
away from the place of arrest. R.A. No. 9165 due to the lapses in the chain of
custody procedure required under Section 21 of the
There, physical inventory, and photographing same law. Section 21 requires strict compliance. The
required under Sec. 21 of R.A. No. 9165 was accuracy it requires goes into the covertness of buy-
conducted in the presence of Banding, the buy- bust operation and the very nature of narcotic
bust team, and a media representative. After the substance.
inventory, PO3 Corona prepared the inventory
/""'~, UNIVERSITY OF SANTO TOMAS 596

'._./ 2022 GOLDEN NOTES
Evidence
From the language of Section 21, the mandate to inventory and taking of pictures was done by the
conduct inventory and take photographs apprehending officers, the Court is left with
"immediately after seizure and confiscation" absolutely no guarantee of the integrity of the
necessarily means that these shall be sachets other than the self-serving assurances of the
accomplished at the place of arrest. When this is police officers. (People of the Philippines v. Que, G.R.
impracticable, the Implementing Rules and No. 212994, 31 Jan. 2018)
Regulations of R.A. No. 9165 allows for two (2) other
options: at the nearest police station or at the Citing People v. Que, what is critical in drug cases is
nearest office of the apprehending officer/team, not the bare conduct of the inventory, marking, and
whichever is practicable, in case of warrantless photographing. Instead, it is the certainty that the
seizures. To sanction non-compliance, the items allegedly taken from the accused retain their
prosecution must prove that the inventory was integrity, even as they make their way from the
conducted in either practicable place. accused to an officer effecting the seizure, to an
investigating officer to a forensic chemist, and
The physical inventory and photographing of the ultimately, to courts where they are introduced as
drugs seized was not done in the place of arrest, but evidence. Sec. 21(1)’s requirements are designed to
was done in Camp Karingal, which was impractical make the first and second link foolproof. Conducting
since it was 17 kilometers car ride away from the the inventory and photographing immediately after
place of arrest. The clerical errors and discrepancies seizure, exactly where the seizure was done, or at a
in the inventory receipt and the chemistry report location as practicably close to it, minimizes, if not
cannot be dismissed since they cast doubt as to the eliminates, room for adulteration or planting of
origin of the drug seized. (People of the Philippines v. evidence. (People of the Philippines v. Banding,
Banding, G.R. No. 2333470, 14 Aug. 2019) supra.)
In the case of People of the Philippines v. Ramos, the Q: Karlo was charged with Illegal Possession of
Supreme Court ruled that the witnesses' absence at Dangerous Drugs. He questions his conviction
the time of seizure is not a justifiable ground for not by arguing that there are inconsistencies in the
immediately marking the items, since they should testimonies of the witnesses. He argues that the
have at the onset, been present or near the place of prosecution failed to establish compliance with
seizure. Since the law requires the apprehending the three-witness rule mandated by R.A. No.
team to conduct the inventory in front of the 9165. Furthermore, Karlo casts doubt on the
required witnesses and immediately after seizure, validity of the search conducted in that the
this necessarily means that, in buy-bust operations, implementation of the search warrant was
the required witnesses must be present at the time documented to begin at 4:30 A.M. while the
of seizure. (G.R. No. 225335, 28 Aug. 2019) seizure of the drugs was made at around 6:30
A.M. Such interval, Karlo claims, gave the police
The phrase "immediately after seizure and officers an opportunity to fabricate evidence
confiscation" means that the physical inventory and against him. Do the alleged inconsistencies in
photographing of the drugs were intended by the the testimonies of the witnesses warrant the
law to be made immediately after, or at the place of reversal of the conviction of Karlo?
apprehension. It is only when the same is not
practicable that the law allows the inventory and A: NO. As to the first argument, the fact that Cruz's
photographing to be done as soon as the buy-bust affidavit neglects to categorically mention the
team reaches the nearest police station or the presence of DOJ representative Mendoza during the
nearest office of the apprehending team/officer. search operation does not run counter to his
testimony. The perceived discrepancy neither
Well-entrenched in jurisprudence is the rule that affects the truth of the testimony of the prosecution
the conviction of the accused, must rest, not on the witness nor discredits his positive identification of
weakness of the defense, but on the strength of the appellant. Besides, apart from the duly signed
prosecution. Since there is no showing that a proper Certificate of Inventory and Certificate of orderly

e

Remedial Law
Search, it had already been stipulated and admitted Q: A buy-bust operation was conducted wherein
by the parties that Mendoza was indeed a witness in PO2 Montales was designated as the poseur-
the conduct of the search and inventory of the buyer. The buy-bust team proceeded to Saunar's
confiscated drugs. For this reason, such stipulation residence. PO2 Montales introduced herself as a
is already a judicial admission of the facts stipulated. buyer of shabu and handed Saunar the marked
Appellant is clearly beyond his bearings in disputing money. After a brief conversation, Saunar went
this judicially admitted fact. What is more, inside the house. She returned moments later
photographs were offered in evidence to prove that "with two (2) transparent plastic sachets
the necessary witnesses, including Mendoza, had containing white crystalline substance." PO2
been present during the search operation. Montales examined the plastic sachets and gave
the pre-arranged signal by removing her
As to the second argument, the supposed sunglasses. This indicated the consummation of
inconsistency regarding the exact time the search the transaction to the other members of the buy-
warrant was implemented is, if at all, minor and bust team. PO2 Montales brought the seized
without consequence. As argued by the appellee, the items to the crime laboratory for scientific
team had arrived at appellant's house to implement examination. The contents of the two (2) plastic
the search warrant at 4:30 a.m. The police officers sachets weighed 0.0496 grams and 0.0487
did not immediately search the residence because grams. They tested positive for shabu. Is Saunar
they still had to wait for the barangay officials and liable even if only a miniscule amount is alleged
the media representatives. Such minor to have been seized from him?
inconsistency does not warrant the reversal of
appellant's conviction. (Concepcion y Tabor v. A: NO. The prosecution must prove beyond
People, G.R. No. 243345, 11 March 2019, J. Caguioa) reasonable doubt that the transaction actually took
place by establishing the following elements: "(1)
Integrity and Evidentiary Value of the Seized the identity of the buyer and the seller, the object
Items and the consideration; and (2) the delivery of the
thing sold and the payment." Aside from this, the
The prosecution is not required to elicit testimony corpus delicti must be presented as evidence in
from every custodian or from every person who had court. In cases involving dangerous drugs, "the
an opportunity to come in contact with the evidence corpus delicti is the dangerous drug itself." Although
sought to be admitted. As long as one of the chains strict compliance with the Chain of Custody Rule
testifies and his testimony negates the possibility of may be excused provided that the integrity and
tampering and that the integrity of the evidence is evidentiary value of the seized items are preserved,
preserved, his testimony alone is adequate to prove a more exacting standard is required of law
the chain of custody. enforcers when only a miniscule amount of
dangerous drugs are alleged to have been seized
Failure to strictly comply with rules of procedure, from the accused.
however, does not ipso facto invalidate or render
void the seizure and custody over the items. Minor In this case, only 0.0496 grams and 0.0487 grams or
deviations from the chain of custody rule Chain of a total of 0.0983 grams of shabu were allegedly
Custody Rule are justified when the prosecution is taken from accused-appellant. Such a miniscule
able to show that: amount of drugs is highly susceptible to tampering
and contamination. A careful review of the factual
1. There is justifiable ground for non-compliance; findings of the lower courts shows that the
and prosecution failed to discharge its burden of
2. The integrity and evidentiary value of the preserving the identity and integrity of the
seized items are properly preserved (People v. dangerous drugs allegedly seized from accused-
Dumagay, G.R. No. 216753, 07 Feb. 2018) appellant. The prosecution failed to establish who
held the seized items from the moment they were
taken from accused-appellant until they were

Evidence
brought to the police station. The designated Given the flagrant procedural lapses the police
poseur-buyer, PO2 Montales, did not mention who committed in handling the seized shabu and the
took custody of the seized items for safekeeping. obvious evidentiary gaps in the chain of its custody,
(People v. Saunar, G.R. No. 207396, 09 Aug. 2017) a presumption of regularity in the performance of
duties cannot be made in this case. The presumption
Marking after seizure is the starting point in the applies when nothing in the record suggests that the
custodial link, thus it is vital that the seized law enforcers deviated from the standard conduct
contrabands are immediately marked because of official duty required by law; where the official
succeeding handlers of the specimen will use the act is irregular on its face, the presumption cannot
markings as reference. (People v. Salim, G.R. No. arise. (People of the Philippines v. Holgado, G.R. No.
208093, 20 Feb. 2017) 207992, 11 Aug. 2014)
Q: A buy-bust operation was conducted by the DNA EVIDENCE

police where PO1 Aure, as the poseur-buyer,
was accompanied by the informant. The team Meaning of DNA
proceeded to the whereabouts of Holgado. PO1
Aure handed Holgado two marked Php 100 bills. DNA is the fundamental building block of a person’s
Holgado called Misarez. Misarez stepped out of entire genetic make-up. A person’s DNA profile can
the restroom and handed a plastic sachet determine his identity. The DNA profile is unique
containing a white crystalline substance to PO1 for each person, except for identical twins.
Aure. PO1 Aure examined the sachet’s contents Everyone is born with a distinct and genetic
and took out his cellphone signaling that the sale blueprint called DNA.
of drugs had been consummated. The police
operatives then approached PO1 Aure and When a crime is committed, material is collected
apprehended Holgado and Misarez. PO3 from the scene of the crime or from the victim's
Abuyme prepared an inventory of the seized body for the suspect's DNA. This is the evidence
items. PO1 Aure supposedly marked the plastic sample. The evidence sample is then matched with
sachet handed to him by Misarez at the site of the reference sample taken from the suspect and the
the buy-bust operation. victim.
Following their arrest, Holgado and Misarez
were charged with violating Secs. 5 (Sale of DNA analysis
dangerous drugs), 11 (Possession of dangerous
drugs), and 12 (Possession of drug A procedure in which DNA extracted from a
paraphernalia) of R.A. No. 9165. biological sample obtained from an individual is
examined. (Herrera v. Alba, G.R. No. 148220, 15 June
RTC found Holgado and Misarez guilty of illegal 2000)
sale of dangerous drugs and acquitted them of
the charges pertaining to Sec. 11 as the drugs The purpose of DNA testing is to ascertain whether
supposedly seized were not introduced in an association exists between the evidence sample
evidence. Holgado, was also acquitted of the and the reference sample. The samples collected are
charges relating to Sec. 12 of as the subjected to various chemical processes to establish
paraphernalia to which PO2 Castulo testified to their profile. The test may yield three possible
in court were different from those indicated in results:
the inventory supposedly made. CA affirmed the 1. The samples are different and therefore
conviction. Is the presumption of regularity in must have originated from different sources
the performance of duties applicable in this (exclusion). This conclusion is absolute and
case? requires no further analysis or discussion;
A: The presumption of regularity in the 2. It is not possible to be sure, based on the

performance of duties cannot be applied in this case. results of the test, whether the samples have

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Remedial Law
similar DNA types (inconclusive). This might 5. The existence of other factors, if any, which the
occur for a variety of reasons including court may consider as potentially affecting the
degradation, contamination, or failure of some accuracy of integrity of the DNA testing.
aspect of the protocol. Various parts of the
analysis might then be repeated with the same NOTE: This Rule shall not preclude a DNA testing,
or a different sample, to obtain a more without need of a prior court order, at the behest of
conclusive result; or any party, including law enforcement agencies,
before a suit or proceeding is commenced. (Sec. 4,
3. The samples are similar, and could have A.M. No. 06-11-5-SC)
originated from the same source (inclusion). In
such a case, the samples are found to be similar, Post-Conviction DNA Testing
the analyst proceeds to determine the statistical
significance of the similarity. (People v. Vallejo, Post-conviction DNA testing may be available,
G.R. No. 144656, 09 May 2002) without need of prior court order, to the
prosecution or any person convicted by final and
Rule on DNA Evidence (A.M. No. 06-11-5-SC) executory judgment provided that:
It shall apply whenever DNA evidence is offered, 1. A biological sample exists;

used, or proposed to be offered or used as evidence 2. Such sample is relevant to the case; and
in all criminal and civil actions as well as special 3. The testing would probably result in the
proceedings. (Sec. 1, A.M. No. 06-11-5-SC) reversal or modification of the judgment of
conviction. (Sec. 5, A.M. No. 06-11-5-SC) (2012
Application for DNA Testing Order BAR)
DNA testing order may be done motu proprio or on Assessment of Probative Value of DNA Evidence
application of any person having legal interest in the and Admissibility
matter in litigation.
The courts must consider the following standards,
DNA testing order shall issue after due hearing and known as the Vallejo Standards, in assessing the
notice to the parties upon showing that: probative value of DNA evidence: (2009, 2010
BAR)
1. A biological sample exists that is relevant to the
case; a. How the samples were collected;
b. How they were handled;
2. The biological sample: c. The possibility of contamination of the samples;
d. The procedure followed in analyzing the
a. was not previously subjected to the type of samples;
DNA testing now requested; or e. Whether the proper standards and procedures
b. was previously subjected to DNA testing, were followed in conducting the tests; and
but the results may require confirmation f. The qualification of the analyst who conducted
for good reasons; the tests. (People v. Vallejo, G.R. No. 144656, 09
May 2002)
3. The DNA testing uses a scientifically valid
technique; Rules on evaluation of Reliability of DNA testing
Methodology
4. The DNA testing has the scientific potential to
produce new information that is relevant to the In assessing the probative value of the DNA
proper resolution of the case; and evidence presented, the court shall consider the
following:

Evidence
a. The chain of custody, including how the alone. (Herrera v. Alba, G.R. No. 148220, 15 June
biological samples were collected, how they 2005)
were handled, and the possibility of
contamination of the samples; Real Evidence vs. Demonstrative Evidence
b. The DNA testing methodology, including the DEMONSTRATIVE

REAL EVIDENCE
procedure followed in analyzing the samples, EVIDENCE
the advantages and disadvantages of the Tangible object that Tangible evidence that
procedure, and compliance with the played some actual role merely illustrates a
scientifically valid standards in conducting the in the matter that gave matter of importance
tests; rise to the litigation in the litigation
Intends to show that
c. The forensic DNA laboratory, including the demonstrative
accreditation by any reputable standards- object fairly
setting institution and the qualification of the represents or
analyst who conducted the tests. If the illustrates a Real
laboratory is not accredited, the relevant Evidence
experience of the laboratory in forensic
casework and credibility shall be properly Illustration: Where a
established; and drawing is presented to
illustrate the relative
d. The reliability of the testing result, as positions of the
hereinafter provided. (Sec. 7 (a), A.M. No. 06-11- protagonists and
Intends to prove that
5-SC) witnesses to the killing,
the object is used in the
the foundation for
underlying event
DNA is Admissible Evidence of Paternity demonstrative
evidence will normally
It is not enough to state that the child's DNA profile consist of the
matches that of the putative father. A complete testimony of an
match between the DNA profile of the child and the eyewitness or
DNA profile of the putative father does not investigator stating
necessarily establish paternity. that the drawing
indeed fairly
For this reason, following the highest standard represents the position
adopted in an American jurisdiction,53 trial courts of those present in the
should require at least 99.9% as a minimum value event. (Francisco,
of the Probability of Paternity ("W") prior to a 1996)
paternity inclusion. W is a numerical estimate for
the likelihood of paternity of a putative father View of an Object or Scene
compared to the probability of a random match of
two unrelated individuals. When an object is relevant to the fact in issue, it may
be exhibited to, examined or viewed by the court.
An appropriate reference population database, such (Sec 1, Rule 130, ROC, as amended)
as the Philippine population database, is required to
compute for W. Due to the probabilistic nature of Where the object in question cannot be produced in
paternity inclusions, W will never equal to 100%. court because it is immovable or inconvenient to
However, the accuracy of W estimates is higher remove, it is proper for the tribunal to go to the
when the putative father, mother and child are object in its place and there observe it (Francisco,
subjected to DNA analysis compared to those 1996).
conducted between the putative father and child

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Remedial Law
An ocular inspection conducted by the judge that words were uttered in a particular accent, then
without the presence of the parties or due notice is it is object evidence. (Francisco, 1996)
not valid, as an ocular inspection is part of the trial.
(Regalado, 2008, citing Adan v. Abucejo-Luzano, et. Q: May a private document be offered and
al., A.M. No. MTJ-00-1298, 03 Aug. 2000) admitted in evidence both as documentary
evidence and object evidence? (2005 BAR)
D. DOCUMENTARY EVIDENCE A: YES. A private document may be offered and

(RULE 130, B) admitted in evidence both as documentary evidence
and as object evidence depending on the purpose
for which the document is offered. If offered to
prove its existence, conditions or for any purpose
1. DEFINITION
other than the contents of a document, the same is
considered as object evidence. When the private
Documents as evidence consist of writings,
document is offered as proof of its contents, the
recording, photographs, or any material containing
same is considered as documentary evidence. The
letters, words, sounds, numbers, figures, symbols,
document may be offered for both purposes under
or their equivalent, or other modes of written
the principle of multiple admissibility. (Riano, 2019)
expressions, offered as proof of their contents.
Photographs include still pictures, drawings, stored
Requisites for Admissibility
images, x-ray films, motion picture or videos. (Sec. 2,
The requisites for admissibility of documentary
evidence are: (R-A-M-O)
NOTE: Being writing or materials containing modes
of written expressions do not ipso facto make such
1. The document should be Relevant;
materials documentary evidence. For such writings
or materials to be deemed documentary evidence,
2. The documents should be Authenticated and
the same must be offered as proof of their contents.
proved in the manner provided in the Rules of
(Riano, 2019)
Court. Such authentication must be done by a
competent witness;
Categories of Documentary Evidence
3. The documents should be identified and

1. Writings;
Marked; and
2. Recordings;
3. Photographs;
4. They should be formally Offered to the court
4. Any other material containing letters, words,
and shown to the opposing party so that the
sounds, numbers, figures, symbols or their
latter may have the opportunity to object
equivalent; or
thereto. (Ramcar, Inc. v. Hi-Power Marketing,
5. Other modes of written expression offered as a
G.R. No. 157075, 17 July 2006)
proof of their contents.
Q: When Linda died, her common-law husband,

NOTE: Photographs include still pictures, drawings,
Lito and their alleged daughter, Nes, executed an
stored images, x-ray films, motion pictures or
extrajudicial partition of Linda’s estate.
videos. (Sec. 2, Rule 130, ROC, as amended)
Thereafter, the siblings of Linda filed an action
for partition of Linda’s estate and annulment of
Tape-recording as Documentary Evidence
titles and damages with the RTC. The RTC
dismissed the complaint and ruled that Nes was
If a tape recording is played to show that particular
the illegitimate daughter of the decedent and
words were uttered, it will constitute documentary
Lito based solely on her birth certificate, which
evidence. However, if it is played to simply show
on closer examination, reveals that Nes was

Evidence
listed as “adopted” by both Linda and Lito. Is the Meaning of the Rule
trial court correct?
GR: It provides that when the subject of the inquiry
A: NO. A record of birth is merely prima facie is the contents of the document, writing, recording,
evidence of the facts contained therein. It is not photograph or other record, no evidence shall be
conclusive evidence of the truthfulness of the admissible other than the original document itself.
statements made therein by the interested parties.
Nes should have adduced evidence of her adoption, XPNs: (Lo-Cus-Ju-N-Pu-C)
in view of the contents of her birth certificate. The 1. When the original is Lost, or destroyed, or
mere registration of a child in his or her birth cannot be produced in court, without bad faith
certificate as the child of the supposed parents is not on the part of the offeror;
a valid adoption, does not confer upon the child the
status of an adopted child and the legal rights of 2. When the original is in the Custody or under the
such child, and even amounts to simulation of the control of the party against whom the evidence
child's birth or falsification of his or her birth is offered, and the latter fails to produce it after
certificate, which is a public document. (Rivera v. reasonable notice, or the original cannot be
Heirs of Villanueva, G.R. No. 141501, 21 July 2006) obtained by local Judicial processes or
procedures;
Theory of Indivisibility (Rule on Completeness)
3. When the original consists of Numerous
When part of an act, declaration, conversation, accounts or other documents which cannot be
writing, or record is given in evidence by one party, examined in court without great loss of time
the whole of the same subject may be inquired into and the fact sought to be established from them
by the other; and when a detached act, declaration, is only the general result of the whole;
conversation, writing, or record is given in evidence,
any other act, declaration, conversation, writing or 4. When the original is a Public record in the
record necessary to its understanding may also be custody of a public officer or is recorded in a
given in evidence. (Sec. 17, Rule 132, ROC, as public office; and
amended)
5. When the original is not closely-related to a
2. ORIGINAL DOCUMENT RULE Controlling issue. (Sec. 3, Rule 130, ROC, as
(PREVIOUSLY KNOWN AS THE amended)
BEST EVIDENCE RULE)
NOTE: Where the issue is only as to whether such a
The erstwhile “Best Evidence Rule” is now known as document was actually executed, or exists, or on the
the “Original Document Rule” in order to avoid circumstances relevant to or surrounding its
confusion. execution or delivery (external facts), the best
evidence rule (now, original document rule), does
The “Best Evidence Rule” is a misnomer because it not apply, and testimonial evidence is admissible.
misleadingly suggests that the doctrine applies to all (Moran, 1980)
types of evidence. The Best Evidence Rule only
applies to documents or writings; there is no The Best Evidence Rule (now original document
requirement that parties introduce the best rule), applied to documentary evidence, operates as
evidence bearing on other matters they seek to a rule of exclusion, that is, secondary evidence
prove in court. Thus, the more accurate or apt label cannot be inceptively introduced as the original
for the doctrine is the “Original Document Rule.” writing itself must be produced in court, except in
(Rules Committee Notes, as cited in Peralta & Peralta, the instances mentioned in Sec. 3. (Regalado, 2008)
2020)
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Remedial Law
Q: What is the reason underlying the adoption of the proceeds of the DBP Loan to settle the
the best evidence rule (now the original remaining balance of the proceeds of the DBP
document rule)? (1998 BAR) Loan to settle the remaining Respondent’s PNB
Loan (P65,320.55). Subsequently, the parties
A: There is a need to present to the court the exact executed a Deed of Undertaking in reference to
words of a writing where a slight variation of words the DBP Mortgage that in the event of the
may mean a great difference in rights. It is also for Petitioners could not pay the loan and
the prevention of fraud or mistake in the proof of consequently, the property of the Respondent is
the contents of a writing. foreclosed and is not redeemed, the Petitioners
shall acknowledge as his indebtedness the
Q: Police officers arrested Mr. Druggie in a buy- amount due to the DBP upon foreclosure or the
bust operation and confiscated from him 10 amount paid by the Respondent in paying the
sachets of shabu and several marked genuine loan, but in either case shall be deducted
peso bills worth P5,000.00 used as the buy-bust therefrom the amount of P65,320.55 plus
money during the buy-bust operation. At the interests and fees. The DBP Loan was not paid
trial of Mr. Druggie for violation of R.A. No. 9165, when it fell due.
the Prosecution offered in evidence, among
others, photocopies of the confiscated marked Petitioners assert that the RTC and CA erred in
genuine peso bills. The photocopies were ruling that the plain copy of the Deed of
offered to prove that Mr. Druggie had engaged at Undertaking was admissible as proof of its
the time of his arrest in the illegal selling of contents, in violation of the Best Evidence Rule
dangerous drugs. Invoking the Best Evidence under Rule 130 of the Rules of Court. Also,
Rule Atty. Maya Bang, the defense counsel, Petitioners insist that the Deed of Undertaking
objected to the admissibility of the photocopies is a falsity and should not be given credence. Are
of the confiscated marked genuine peso the Petitioners correct?
bills. Should the trial judge sustain the
objection of the defense counsel? Briefly explain A: NO. Petitioners waived their right to object to the
your answer. (2017 BAR) admission of the Deed of Undertaking on the basis of
the Best Evidence Rule (now Original Document
A: NO. The best evidence rule (now the original Rule). The Best Evidence Rule (now Original
document rule) applies only to documentary Document Rule) requires that when the subject of
evidence, not to object or testimonial evidence. The inquiry is the contents of the document, no evidence
presentation at the trial of the "buy-bust money" is is admissible other than the original document itself
not indispensable to the conviction of the accused except in the instances mentioned in Section 3, Rule
especially if the sale of dangerous drugs had been 130 of the Revised Rules of Court. Nevertheless,
adequately proved by the testimony of the police evidence not objected to is deemed admitted
officers. So long as the drug actually sold by the and may be validly considered by the court in
accused had been submitted as an exhibit, the arriving at its judgement. Courts are not
failure to produce the marked money itself would precluded to accept in evidence a mere
not constitute a fatal omission. photocopy of a document when no objection was
raised when it was formally offered.
Q: Respondent Martinez is the registered owner
of the Pingol Property. Two mortgages were Petitioners failed to object to the admission of the
constituted over this property – the first (PNB plain copy of the Deed of Undertaking at the time it
Mortgage), and the second (DBP Mortgage). was formally offered in evidence before the RTC. In
Respondent agreed to constitute the DBP fact, in their Reply, Petitioners admit that they only
Mortgage upon Clark’s request, and that, in raised this objection for the first time before the CA.
order to release the Pingol Property from the Having failed to timely raise their objection when
PNP Mortgage, the Petitioner Spouses Tapayan the Formal Offer of Evidence was filed in the RTC,
and Respondent agreed to utilize a portion of petitioners are deemed to have waived the same.

Evidence
Hence, they are precluded from assailing the Collateral Facts Rule
probative value of the plain copy of the Deed of
Undertaking. A document or writing which is merely “collateral”
to the issue involved in the case on trial need not be
Petitioners failed to rebut the presumption of proved. Where the purpose of presenting a
regularity ascribed to the Deed of Undertaking as document is not to prove its contents, but merely to
a notarized public document. give coherence to, or to make intelligible the
testimony of a witness regarding a fact
The Deed of Undertaking became a public document contemporaneous to the writing, the original of the
by virtue of its acknowledgement before a notary document need not be presented.
public. Hence, it enjoys the presumption of
regularity, which can only be overcome by clear and Meaning of Original Document and Duplicate
convincing evidence. While Petitioners vehemently
deny participation in the execution of the Deed of An “original” of a document is either:
Undertaking, they did not present any evidence to
support their claim that their signatures thereon 1. the document itself; or
were forged. Hence, the presumption of regularity 2. any counterpart intended to have the same
ascribed to the Deed of Undertaking must be upheld. effect by a person executive or issuing it.
(Sps. Tapayan v. Martinez, G.R. No. 207786, 30 Jan.
2017, J. Caguioa) NOTE: An original of a photograph includes the
negative or any print therefrom.
When Applicable
NOTE: If data is stored in a computer or similar
1. The original document of the writing is the device, any printout or other output readable by
writing itself; sight or other means, shown to reflect the data
2. The contents of which is the subject of the accurately, is an “original.” This is considered as the
inquiry; and “Functional Equivalent” of the original under the
3. The original document must be produced if Rules on Electronic Evidence.
the purpose is to prove its contents. (Tan,
2019) A “duplicate” is a counterpart produced by the
same impression as the original, or from the same
NOTE: When the truth of the document is in issue matrix, or by means of photography, including
and not the contents thereof, the original document enlargements and miniatures, or by mechanical or
rule is not applicable. In such case, it is the hearsay electronic re-recording, or by chemical
rule that will apply. (Riano, 2019) reproduction, or by other equivalent techniques
which accurately reproduce the original.
Where the issue is the execution or existence of the
document or the circumstances surrounding its GR: A duplicate is admissible to the same extent as
execution, the original document does not apply and an original.
testimonial evidence is admissible. (Arceo, Jr. v.
People, G.R. No. 142641, 17 July 2006) XPN:
1. A genuine question is raised as to the
Subject of Inquiry authenticity of the original; or
When the original document rule comes into 2. In the circumstances, it is unjust or inequitable
operation, it is presumed that the subject of the to admit the duplicate in lieu of the original.
inquiry is the contents of the document, thus the (Sec. 4, Rule 130, ROC, as amended)
party offering the document must present the
original thereof and not any other secondary NOTE: Writings with identical contents made by
evidence. printing, mimeographing, lithography, and other

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Remedial Law
similar methods executed at the same time are 3. The Unavailability of the original is not due to
considered as original document. Thus, each bad faith on his or her part. (Sec. 5, Rule 130,
newspaper sold in the stand is an original. (Riano, ROC, as amended)
2019)
NOTE: Accordingly, the correct order of proof is as
Production of the original may be dispensed with if, follows: existence, execution, loss, and contents.
in the trial court’s discretion, the opponent (1) does This order may be changed, if necessary, at the
not dispute the contents of such document and (2) sound discretion of the court. (Citybank, N.A.
no other useful purpose will be served by the MasterCard v. Teodoro, G.R. No. 150905, 23 Sept.
production. Secondary evidence of the contents of 2003)
the writing would be received in evidence if no
objection was made to its reception. (Estrada v. Due Execution and Authenticity of Private
Desierto, G.R. No. 146710-15, 02 Mar. 2001) Document
3. SECONDARY EVIDENCE It may be proved by any of the following means:
Evidence other than the original instrument or 1. By anyone who saw the document executed or
document itself. It is the class of evidence that is written;
relevant to the fact in issue, it being first shown that 2. By evidence of the genuineness of the signature
the primary evidence of the fact is not obtainable. It or handwriting of the maker; or
performs the same functions as that of primary 3. By other evidence showing its due execution
evidence. (EDSA Shangri-La Hotel and Resort, Inc. v. and authenticity. (Sec. 20, Rule 132, ROC, as
BF Corporation, G.R. Nos. 145842 & 145873, 27 June amended)
2008)
NOTE: A party must first present to the court proof NOTE: Any other private document need only be
of loss or other satisfactory explanation for the non- identified as that which it is claimed to be.
production of the original instrument. When more
than one original copy exists, it must appear that all Q: Young Builders Corporation (YBC for brevity)
of them have been lost, destroyed or cannot be filed before the Regional Trial Court in Cebu City
produced in court before secondary evidence can be (RTC) a complaint for collection of sum of money
given. (Country Bankers Insurance Corp. v. Lagman, against Benson Industries, Inc (BII). Among the
G.R. No. 165487, 13 July 2011) pieces of evidence presented were: 1. YBC's
Accomplishment Billing dated 18 May 1998
The non-production of the original document, (Exhibit "B"/Exhibit "2"); 2. BII’s Letter dated 7
unless it falls under any of the exceptions in Sec. 3, May 1998 (Exhibit "F"); and 3. The Certification
Rule 130, gives rise to the presumption of dated 15 November 1997 (Exhibit "E"). With
suppression of evidence. (De Vera, et. Al. v. Aguilar, respect to YBC's Accomplishment Billing dated
et. al. G.R. No. 83377, 09 Feb. 1993) 18 May 1998 (Exhibit "B"/Exhibit "2"), YBC is of
the position that there is no longer the need to
Requisites before the Contents of the Original prove the genuineness and due execution of the
Document may be proved by Secondary Accomplishment Billing because it is an
Evidence (Laying the Basis/Laying the actionable document that was attached to the
Predicate) (2000 BAR) complaint and not specifically denied under
oath by BII. YBC argues that BII's denial in its
The offeror must prove the following: (E-C-U) Answer was insufficient because it did not
specifically deny the genuineness and due
1. The Execution or existence of the original execution of the Accomplishment Billing. With
document; respect to BII's Letter dated 7 May 1998 (Exhibit
2. The Cause of its unavailability; and "F"), YBC claims that the CA erred in holding
inadmissible the letter dated 7 May 1998

Evidence
(Ernesto Letter), allegedly written by Ernesto witness, Yu. The CA thus correctly ruled that the
Dacay, Sr. (Ernesto), who apologized to YBC for Ernesto Letter is inadmissible in evidence in view of
BII's inability to fulfill its payment due to YBC's failure to authenticate the same. No probative
financial constraints. YBC reasoned that the CA value can be accorded to it.
should have given credence to the Ernesto
Letter because it is an admission against BII's With respect to The Certification dated 15
interest. With respect to The Certification dated November 1997 (Exhibit "E"), The Court notes that
15 November 1997 (Exhibit "E"), YBC argues Exhibit "E" is a mere photocopy. Pursuant to Section
that the CA should not have disregarded the 3, Rule 130 of the Rules or the Best Evidence Rule:
Certification dated 15 November 1997 (Mary
Certification), allegedly issued by BII's SEC. 3. Original document must be produced;
President, Mary Dacay, affirming YBC's exceptions. - When the subject of inquiry is the
successful completion of the subject building contents of a document, no evidence shall be
even if YBC's witness, Yu, allegedly admitted in admissible other than the original document
his testimony that the subject building was not itself, except in the following cases:
completed. Decide whether those pieces of (a) When the original has been lost or
evidence are admissible. destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
A: NO. With respect to YBC's Accomplishment (b) When the original is in the custody or under
Billing dated 18 May 1998 (Exhibit "B"/Exhibit "2"), the control of the party against whom the
the complaint filed by YBC is an action for a sum of evidence is offered, and the latter fails to
money arising from its main contract with BII for produce it after reasonable notice;
the construction of a building. YBC's cause of action (c) When the original consists of numerous
is primarily based on BII's alleged non-payment of accounts or other documents which cannot be
its outstanding debts to YBC arising from their main examined in court without great loss of time
contract, despite demand. If there was a written and the fact sought to be established from them
building or construction contract that was executed is only the general result of the whole; and
between BII and YBC, then that would be the (d) When the original is a public record in the
actionable document because its terms and custody of a public officer or is recorded in a
stipulations would spell out the rights and public office.
obligations of the parties. However, no such
contract or agreement was attached to YBC's The records show that YBC did not invoke any of the
Complaint. foregoing exceptions to the Best Evidence Rule to
justify the admission of a secondary evidence in lieu
With respect to BII 's Letter dated 7 May 1998 of the original Mary Certification. Having been
(Exhibit "F") and the Certification dated 15 admitted in violation of the Best Evidence Rule,
November 1997 (Exhibit "E"), for the Ernesto Letter Exhibit "E" should have been excluded and not
to be given credence as an admission against BII's accorded any probative value. (Young Builders Corp.
interest, it should first be admissible as v. Benson Industries, Inc., GR No. 198998. 19 June
documentary evidence. Like the Accomplishment 2019, J. Caguioa)
Billing, which is also a private document, the due
execution and authenticity of the Ernesto Letter Intentional Destruction of the Original
must be proved by YBC. As a prerequisite to the Document
admission in evidence of the Ernesto Letter, which
is private document, its identity and authenticity Intentional destruction of the originals by a party
must be properly laid and reasonably established. who acted in good faith does not preclude the
This is mandated by Section 20, Rule 132 of the introduction of secondary evidence of the contents
Rules. Here, the records of the case show that the thereof. (Regalado, 2008)
Ernesto Letter was only entered into evidence but
was never actually identified in open court by YBC's

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Remedial Law
Proof of Loss or Destruction Definite Evidentiary Rule
It may be proved by: Where the law specifically provides for the class and
quantum of secondary evidence to establish the
1. Any person who knew of such fact; contents of a document, or bars secondary evidence
of a lost document, such requirement is controlling.
2. Anyone who, in the judgment of the court, has
made sufficient examination in the places E.g., evidence of a lost notarial will should consist of
where the document or papers of similar a testimony of at least two credible witnesses who
character are usually kept by the person in can clearly and distinctly establish its contents. (Sec.
whose custody the document was and has been 6, Rule 76, ROC, as amended; Regalado, 2008)
unable to find it; or
Waiver of the Presentation or Offer of the
3. Any person who has made any other Original
investigation which is sufficient to satisfy the
court that the document is indeed lost. The presentation or offer of the original may be
waived upon failure to object by the party against
NOTE: A reasonable probability of its loss is whom the secondary evidence is offered when the
sufficient, and this may be shown by a bona fide and same was presented, as the secondary evidence
diligent search, fruitlessly made, in places where it becomes primary evidence. But even if admitted as
is likely to be found. (Paylago v. Jarabe, G.R. No. L- primary evidence, admissibility of evidence should
20046, 27 Mar. 1968) not be confused with its probative value. (Heirs of
All duplicates or counterparts of a lost or destroyed Teodoro De la Cruz v. CA, G.R. No. 117384, 21 Oct.
document must be accounted for before using 1998)
copies thereof since all duplicates are parts of the
writing to be proved. (De Vera, et al. v. Aguilar, et al., When Original Document is in Adverse party’s
G.R. No. 83377, 09 Feb. 1993) Custody or Control
While a marriage certificate is considered the If the document is in the custody or under the
primary evidence of a marital union, it is not control of the adverse party, he or she must have
regarded as the sole and exclusive evidence of reasonable notice to produce it. If after such notice
marriage. Jurisprudence teaches that the fact of and after satisfactory proof of its existence, he fails
marriage may be proven by relevant evidence other to produce the document, secondary evidence may
than the marriage certificate. Hence, even a person’s be presented as in the case of its loss. (Sec. 6, Rule
birth certificate may be recognized as competent 130, ROC, as amended)
evidence of marriage between parents. (Vda. De
Avenido v. Avenido, G.R. No. 173540, 22 Jan. 2014) Requisites for Admissibility of Secondary
Evidence when the Original Document is in the
Order of Presentation of Secondary Evidence Custody or Control of the Adverse party
Upon proof of its execution and loss of the original 1. That the original exists;
document, its contents may be proved by the 2. That said document is under the custody or
following, in the order stated: control of the adverse party;
3. That the proponent of secondary evidence has
1. By a copy of the original; given the adverse party reasonable notice to
2. By recital of the contents of the document in produce the original document; and
some authentic document; or
3. By the testimony of witnesses (Sec. 5, Rule 130, NOTE: No particular form of notice is required,
ROC, as amended) to be given to the adverse party, as long as it
fairly appraises the other party as to what

Evidence
papers are desired. Even an oral demand in the note which was executed at the same time as
open court for such production at a reasonable the original and with identical contents. Over
time thereafter will suffice. Such notice must, the objection of Lynette, can Paula present a
however, be given to the adverse party, or his copy of the promissory note and have it
attorney, even if the document is in the actual admitted as valid evidence in her favor? Why?
possession of a third person. (Regalado, 2008) (2001 BAR)
The notice may be in the form of a motion for A: YES. Although the failure of Lynette to produce
the production of the original or made in an the original of the note is excusable since she was
open court in the presence of the adverse party, not given reasonable notice, a requirement under
or via a subpoena duces tecum, provided that the Rules before secondary evidence may be
the party in custody of the original has sufficient presented, the copy in possession of Paula is not
time to produce the same. When such party has secondary evidence but a duplicate original because
the original of the writing and does not it was executed at the same time as the original and
voluntarily offer to produce it, secondary with identical contents. Hence, being an original, the
evidence may be admitted. (Magdayao v. People rule on secondary evidence need not be complied
G.R. No. 152881, 17 Aug. 2004) with. (Sec. 6, Rule 130, ROC, as amended)
4. That the adverse party failed to produce the When the Original consists of Numerous
original document despite the reasonable Accounts
notice. (Sec. 6, Rule 130, ROC, as amended)
When the contents of documents, records,
NOTE: A justified refusal or failure of the photographs, or numerous accounts are
adverse party to produce the original document voluminous and cannot be examined in court
will not give rise to the presumption of without great loss of time, and the fact sought to be
suppression of evidence or create an established is only the general result of the whole,
unfavorable inference against him. It only the contents of such evidence may be presented in
authorizes the presentation of secondary the form of a chart, summary, or calculation. (Sec. 7,
evidence. (Regalado, 2008) Rule 130, ROC, as amended)
The mere fact that the original of the writing is in the NOTE: A witness may be allowed to offer a
custody or control of the party against whom it is summary of a number of documents, or a summary
offered does not warrant the admission of of the contents may be admitted if documents are so
secondary evidence. The offeror must prove that he voluminous and intricate as to make an examination
has done all in his power to secure the best evidence of all of them impracticable. They may also be
by giving notice to the said party to produce the presented in the form of charts or calculations.
document. (Magdayao v. People, G.R. No. 152881, 17 (Riano, 2019)
Aug. 2004)
Q: In 2004, the Province of Isabela procured, by
Q: Paula filed a complaint against Lynette for the direct contracting, 15,333 bottles of liquid
recovery of a sum of money based on a organic fertilizer. The Commission on Audit
promissory note executed by the latter. During found that the procurement was done without
the hearing, Paula testified that the original note open competitive bidding, and that the procured
was with Lynette and the latter would not items were overpriced. On 04 July 2011, the
surrender to Paula the original note which Ombudsman filed a complaint against the public
Lynette kept in a place about one day's trip from officers involved in the subject transaction,
where she received the notice to produce the including Javier and Tumamao, who were the
note and despite such notice to produce the Provincial Accountant and Provincial
same within 6 hours from receipt of such notice, Agriculturist of Isabela, respectively. After
Lynette failed to do so. Paula presented a copy of almost five years, or on 19 September 2016, the

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Remedial Law
Special Panel on Fertilizer Fund Scam of the Another requisite to invoke the right to speedy
Ombudsman issued its Resolution finding disposition of cases as provided for in Cagang is the
probable cause to indict Javier and Tumamao timely assertion of the right. Here, the Court holds
for violation of Section 3(e), of R.A. No. 3019 that Javier and Tumamao's acts, or their inaction,
(R.A. No. 3019). Thereafter, on 04 October 2017, did not amount to acquiescence. While it is true that
an Information dated 14 June, 2017 was filed the records are bereft of any indication that Javier
against Javier and Tumamao for violation of and/or Tumamao "followed-up" on the resolution
Section 3(e) of R.A. No. 3019. Javier and of their case, the same could not be construed to
Tumamao filed a Motion to Quash on 24 mean that they acquiesced to the delay of five years.
November 2017, arguing that the period (Pete Gerald L. Javier and Danilo B. Tumamao v.
constituting five years and four months from the Sandiganbayan and People of the Philippines, G.R. No.
filing of the complaint to the approval of the 237997, 10 June 2020, J. Caguioa)
resolution finding probable cause constituted
delay which violated their right to speedy Requisites for the Admissibility of Secondary
disposition of cases. Is the contention of Javier Evidence when the Original consists of
and Tumamao correct? Numerous Accounts
A: YES. The right to speedy disposition of cases of 1. The original must consist of numerous accounts
both Javier and Tumamao were violated by the or other documents;
Ombudsman's delay in concluding the preliminary 2. They cannot be examined in court without great
investigation. For purposes of computing the length loss of time or inconvenient inconvenience
of delay in the present case, the Cagang guidelines (Riguera, 2020 citing Republic v. Mupas, G.R. No.
will be followed, and the case against Javier and 181892, 08 Sept. 2015);
Tumamao would be deemed initiated only upon the
filing of the complaint, or on 27 April 2011. Javier NOTE: The court may admit a summary of
and Tumamao were given the opportunity to be voluminous original documents, in lieu of the
heard and were therefore able to file their counter- original documents, if the party has shown that
affidavits on 15 November 2011 and 22 November the underlying writings are numerous and that
2011, respectively. After these dates, it appears an in-court examination of these documents
from the record that the case had become dormant would be inconvenient. The rule does away
until 05 December 2016 when the Ombudsman with item-by-item court identification and
approved the resolution finding probable cause authentication of voluminous exhibits which
against Javier and Tumamao. would only be burdensome and tedious for the
parties and the court.
The prosecution must be able to prove: First, that it
followed the prescribed procedure in the conduct of However, as a condition precedent to the
preliminary investigation and in the prosecution of admission of a summary of numerous
the case; Second, that the complexity of the issues documents, the proponent must lay a proper
and the volume of evidence made the delay foundation for the admission of the original
inevitable; and third, that no prejudice was suffered documents on which the summary is based. The
by the accused as a result of the delay. In this case, proponent must prove that the source
the prosecution justified the delay of five years by documents being summarized are also
merely claiming that the case had voluminous admissible if presented in court. In concrete
records, without offering any proof as to the said terms, the source must be shown to be original,
assertion or at least specifying how voluminous and not secondary. (Ibid.)
such records were. The prosecution basically relied
on such unsubstantiated claim and rested on the 3. The fact sought to be established from them is
Court's recognition in a previous case that there is a only the general result of the whole. (Sec. 7, Rule
steady stream of cases that reaches their office. 130, ROC, as amended)

Evidence
NOTE: Voluminous records must be made Production of Documents under Sec. 9, Rule 130
accessible to the adverse party so that the vs. Rule 27 (Modes of Discovery)
correctness of the summary of the voluminous
records may be tested on cross-examination. SEC. 9, RULE 130 RULE 27
(Compaña Maritima v. Allied Free Workers Union, et Procured by mere The production of
al., G.R. No. L-28999, 24 May 1977) notice to the adverse document is in the
party, which is a nature of a mode of
When Original Document is a Public Record condition precedent discovery and can be
(2000 BAR) for the subsequent sought only by proper
introduction of motion in the trial
When the original of a document is in the custody of secondary evidence by court and is permitted
public officer or is recorded in a public office, its the proponent. only upon good cause
contents may be proved by a certified copy issued shown.
by the public officer in custody thereof. (Sec. 8, Rule Contemplates a
130, ROC, as amended) situation wherein the
Presupposes that the
document is either
document to be
Proof of the Contents if the Original Document is assumed to be
produced is intended
a Public Record favorable to the party
as evidence for the
in possession thereof
proponent who is
The contents may be proved by: or that the party
presumed to have
seeking its production
knowledge of its
1. A certified copy issued by the public officer in is not sufficiently
contents.
custody thereof (Sec. 8, Rule 130, ROC, as informed of the
amended); and contents of the same.
2. Official publication. (Herrera, 1999) 4. Parol Evidence Rule
NOTE: Public records are generally not to be Meaning of the Rule

removed from the places where they are recorded
and kept. Hence, proof of the contents of a document When the terms of an agreement have been reduced
which forms part of a public record may be done by to writing, it is considered as containing all the
secondary evidence. terms agreed upon and there can be, as between the
parties and their successors-in-interest, no
When a document produced is not offered in evidence of such terms other than the contents of
evidence the written agreement. (Sec. 10, Rule 130, ROC, as
amended)
If the party who calls for the production of a
document does not offer the same in evidence, no NOTE: Among the evidentiary rules, it is the parol
unfavorable inference may be drawn from such evidence rule that has direct application to the law
failure. This is because a party who calls for the on contracts. The rule applies only to contracts
production of a document is not required to offer it. which the parties have decided to set forth in
(Sec. 9, Rule 130, ROC, as amended) writing. Hence, parol evidence does not apply to oral
contracts. (Riano, 2019)
Parol evidence
It is any evidence aliunde (extrinsic evidence) which

is intended or tends to vary or contradict a complete
and enforceable agreement embodied in a

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Remedial Law
document (Regalado, 2008). It may refer to question and does not base a claim or assert a right
testimonial, real or documentary evidence. originating in the instrument of the relation
established thereby. Thus, if one of the parties to the
NOTE: Parol evidence is evidence outside of the case is a complete stranger to the contract involved
agreement of the parties while the parol evidence therein, he is not bound by this rule and can
rule prevents the presentation of such parol introduce extrinsic evidence against the efficacy of
evidence. the writing. (Lechugas v. CA, et al., G.R. Nos. L-39972
& L-40300, 06 Aug. 1986)
Rationale for the adoption of the Parol Evidence
Rule (2009 BAR) Application of the Rule to Wills
When the parties have reduced their agreement in The parol evidence rule applies to agreements, i.e.,
writing, it is presumed that they made such writing contractual obligations. However, the term
as the repository of all terms of the agreement, and “agreement” includes wills. Therefore, there can be
whatever is not found in the said writing must be no evidence of the terms of the will other than the
considered as waived and abandoned. (Tan, 2010) contents of the will itself. (Riano, 2019)
NOTE: While parol evidence applies to wills, an
Condition Precedent and a Condition express trust concerning an immovable or any
Subsequent established by Parol Evidence interest therein may not be proved by parol
evidence. (Art. 1443, NCC)
Condition precedent may be established by parol
evidence because there is no varying of the terms of Q: IPAMS is a corporation recruiting nurses for
the written contract by extrinsic agreement. There work deployment. It entered a memorandum of
is no contract in existence so there is nothing in agreement (MOA) with an insurer, Country
which to apply the excluding rule. Meanwhile, Bankers, for surety bonds to be provided to the
conditions subsequent may not be established by recruited nurses and to secure the latter's
parol evidence since a written contract already obligations in the immigration and deployment
exists. processes. The MOA stated that IPAMS needs to
present two demand letters, an affidavit stating
NOTE: The present rule now requires that the reason of any violation, a statement of account,
admissibility of subsequent agreements be and the transmittal claim letter, in order to
conditioned upon its being put in issue in a verified claim on the surety bonds.
pleading. (Sec. 10, Rule 130, ROC, as amended)
Country Bankers initially paid the claims of
Requisites for the Application of the Rule IPAMS, but later began neglecting their
payment. Country Bankers later on asked for
1. There must be a valid contract; official receipts, which could not be produced by
2. The terms of the agreement must be reduced to IPAMS. Since the claims remained unpaid, the
writing. The term “agreement” includes wills; IPAMS sought the intervention of the Insurance
3. The dispute is between the parties or their Commission (IC). The IC ruled that Country
successors-in-interest; and Bankers is liable to settle the subject claim, and
4. There is dispute as to the terms of the if it does not, the IC will take disciplinary action.
agreement. The Department of Finance and the Office of the
President later affirmed this decision. However,
Parties should be Privies to the Contract the Court of Appeals reversed.
The parol evidence rule does not apply, and may not In the present petition before the Supreme
be properly invoked, by either party to the litigation Court (SC), IPAMS prays for the reversal of the
against the other, where at least one party to the suit CA's decision, as well as the
is not a party or privy to the written instrument in suspension/revocation of the license of Country

Evidence
Bankers, the awarding of the total amount of its the true intent of the parties. In this case, parol
claim, as well as damages. Should the SC grant evidence then becomes competent and admissible
the claim for suspension of Country Bankers' to prove that the instrument was in truth and in fact
license, the awarding of IPAMS' claim and given merely as a security for the repayment of a
damages? loan. (Madrigal v. CA, G.R. No. 142944. 15 Apr. 2005)
A: NO. The prayer of IPAMS for the total amount of Kinds of Ambiguities
its claims as well as damages could be granted, since
the orders of the IC in question were issued in its INTRINSIC EXTRINSIC
INTERMEDIATE
capacity as a regulator and not as an adjudicator of OR LATENT OR PATENT
claims. This being the case, jurisprudence states On its face, Ambiguity is
that the matter should be referred back to the IC so the writing apparent on
that it could determine the remaining amount and appears clear the face of Ambiguity
extent of the liability that should be settled by and the writing consists in the
respondent Country Bankers in order to avoid the unambiguous and requires use of equivocal
IC's disciplinary action. (Industrial Personnel and but there are that words
Management Services, Inc. v. Country Bankers collateral something susceptible of
Insurance Corporation, G.R. No. 194126, 17 Oct. 2018, matters be added to two or more
J. Caguioa) which make make the interpretation.
the meaning meaning
Exceptions to Parol Evidence Rule uncertain. certain.
Cannot be
A party may present evidence to modify, explain or cured by
add to the terms of the written agreement if he or evidence
she puts in issue in a verified pleading the following: aliunde
(F-I-V-E) because it is
only
1. Failure of the written agreement to express the intrinsic
Curable by Curable by
true intent of the parties thereto (2001 BAR); ambiguity
evidence evidence
not extrinsic
aliunde. aliunde.
2. Intrinsic ambiguity, mistake or imperfection in ambiguity
the written agreement; which serves
as an
3. Validity of the written agreement; or exception to
the parol
4. Existence of other terms agreed to by the evidence
parties or their successors in interest after the rule.
execution of the written agreement. (Sec. 10, Where the Where the
Rule 130, ROC, as amended) document contract
refers to a refers to an
Mistake particular unidentified
Use of terms
person or grantee or
such as “dollars”
The mistake contemplated is one which is a mistake thing but does not
“tons” and
of fact mutual to both parties. (Gurango vs. IAC, G.R. there are two particularly
“ounces.”
No. 75290, 04 Nov. 1992) or more identify the
persons subject
Even when a document appears on its face to be a having the matter
sale, the owner of the property may prove that the same name thereof such
contract is really a loan with mortgage by raising as or two or that, in
an issue the fact that the document does not express

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Remedial Law
more things either case executed at the same time as the original and
to which the the text does with identical contents. Over the objection of
description not disclose Lynette, will Paula be allowed to testify as to the
in the writing who are or true agreement or contents of the promissory
may apply. what is note? Why? (2001 BAR)
referred to.
A: YES. As an exception to the parol evidence rule, a
Failure of the Written Agreement to Express party may present evidence to modify, explain or
True Intent of the Parties add to the terms of the written agreement if he puts
in issue in his pleading the failure of the written
Parol evidence may be admitted to show the true agreement to express the true intent and agreement
consideration of the contract, or the want or of the parties thereto. Here, Paula has alleged in her
illegality thereof, or the incapacity of the parties, or complaint that the promissory note does not
the fact that the contract was fictitious or absolutely express the true intent and agreement of the parties.
simulated, or that there was fraud in inducement The parol evidence rule may be admitted to show
(Regalado, 2008). Despite the meeting of the minds, the true consideration of the contract. (Sec. 10, Rule
the true agreement of the parties is not reflected in 130, ROC, as amended)
the instrument. (Riano, 2019)
Distinctions between the Original Document
NOTE: In an action for reformation of instrument Rule and the Parol Evidence Rule
under Art. 1359 of the Civil Code of the Philippines,
the plaintiff may introduce parol evidence to show ORIGINAL DOCUMENT PAROL EVIDENCE
the real intention of the parties. An action for RULE RULE
reformation presupposes that a meeting of the The original document
minds exists between the parties, i.e., there is a is not available or there Presupposes that the
contract between them although the instrument is a dispute as to original document is
that evidences the contract does not reflect the true whether said writing is available in court
agreement of the parties by reason of, for instance, original
fraud or mistake. (Riano, 2019) Prohibits the
introduction of
Q: Paula filed a complaint against Lynette for the secondary evidence in Prohibits the varying of
recovery of a sum of money based on a lieu of the original the terms of a written
promissory note executed by the latter. Paula document regardless of agreement
alleged in her complaint that although the whether it varies the
promissory note says that it is payable within contents of the original
120 days, the truth is that the note is payable Applies only to written
Applies to all kinds of
immediately after 90 days but that if Paula is agreements (contracts)
writings
willing, she may, upon request of Lynette give and wills
the latter up to 120 days to pay the note. During Can be invoked only
the hearing, Paula testified that the truth is that Can be invoked by any when the controversy is
the agreement between her and Lynette is for party to an action between the parties to
the latter to pay immediately after 90 days’ time. whether he has the written agreement,
Also, since the original note was with Lynette participated in the their privies, or any
and the latter would not surrender to Paula the writing involved party affected thereby
original note which Lynette kept in a place about like a cestui que trust
one day's trip from where she received the
notice to produce the note and in spite of such
notice to produce the same within 6 hours from
receipt of such notice, Lynette failed to do so.
Paula presented a copy of the note which was

Evidence
Waiver of the Parol Evidence Rule Conflict between General and Particular
Provision
Failure to invoke the benefits of the rule constitutes
as waiver. Inadmissible evidence may be rendered When a general and a particular provision are
admissible by failure to object. (Riano, 2019) inconsistent, the following rules shall be followed:
Probative Value 1. The particular provision is paramount to the

general;
Even if the parol evidence is admitted, it does not 2. A particular intent will control a general one
mean that the court would give probative value to that is inconsistent with it. (Sec. 13, Rule 130,
the parol evidence. Admissibility is not the ROC, as amended)
equivalent of probative value or credibility. (Riano,
2019) Interpretation according to Circumstances
Considering the agreement’s mistake, imperfection The proper construction of an instrument according
or supposed failure to express the parties’ true to the circumstances shall be as follows:
intent was successfully put in issue in the complaint,
this case falls under the exceptions provided by Sec a. The circumstances under which it was made,
9, Rule 130. Accordingly, the testimonial and including the situation of the subject thereof
documentary parol evidence sought to be and of the parties to it, may be shown;
introduced, which attest to these supposed flaws
and what they aver to have been the parties’ true b. Such circumstances must be shown so that the
intent, may be admitted and considered. However, judge may be placed in the position of those
this admission and availability for consideration is whose language he or she is to interpret. (Sec.
no guarantee of how exactly the parol evidence 14, Rule 130, ROC, as amended)
adduced shall be appreciated by the court. They do
not guarantee the probative value, if any, that shall Presumption on Terms of Writing
be attached to them. (Paras v. Kimwa Construction
and Development Corp., G.R. No. 171601, 08 Apr. The terms of a writing shall be interpreted as
2015) follows:
5. INTERPRETATION OF DOCUMENTS 1. It shall be presumed to have been used in their

primary and general acceptation;
How interpreted 2. Evidence is admissible to show that they have a
local, technical, or otherwise peculiar
The language of a writing is to be interpreted signification; and
according to the legal meaning it bears in the place 3. Evidence is admissible to show that it was so
of its execution, unless the parties intended used and understood in the particular instance,
otherwise. (Sec. 11, Rule 130, ROC, as amended) in which case the agreement must be construed
accordingly. (Sec. 15, Rule 130, ROC, as
When there are Several Provisions or amended)
Particulars
Conflict between Written and Printed
In the construction of an instrument, where there
are several provisions or particulars, such a When an instrument consists partly of written
construction is, if possible, to be adopted as will give words and partly of a printed form, and the two are
effect to all. (Sec. 12, Rule 130, ROC, as amended) inconsistent, the written controls the printed form.

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Remedial Law
When the Character of Writing is Difficult to 1. QUALIFICATION OF WITNESSES

Decipher
Who may be a witness
When the characters in which an instrument is
written are difficult to be deciphered, or the A person may be a witness if he or she:
language is not understood by the court, it can be
proved by evidence of: 1. Can perceive;
2. Can make known his perceptions to others (Sec.
1. Persons skilled in deciphering the characters; 21, Rule 130, ROC, as amended);
or 3. Must take either an oath or an affirmation; and
4. Must not possess any of the disqualifications
2. Those who understand the language, is imposed by law or the rules. (Riano, 2019)
admissible to declare the characters or the
meaning of the language. (Sec. 17, Rule 130, ROC, Factors that do not affect the competency of a
as amended) witness
Q: What is the rule in case the terms of an 1. Religious belief;

agreement admit of two (2) interpretations? 2. Political belief;
3. Interest in the outcome of the case; or
A: When the terms of an agreement have been 4. Conviction of a crime, unless otherwise
intended in a different sense by the different parties provided by law. (Sec. 21, Rule 130, ROC, as
to it, it shall be construed as follows, to wit: amended)
1. That sense is to prevail against either party in Related jurisprudence

which he supposed the other understood it; and
There is no provision in the Rules disqualifying
2. When different constructions of a provision are parties declared in default from taking the witness
otherwise equally proper, that is to be taken which stand for non-disqualified parties. (Cavili v.
is the most favorable to the party in whose favor the Florendo, G.R. No. 73039, 09 Oct. 1987)
provision was made. (Sec. 18, Rule 130, ROC, as
amended) It is axiomatic that truth is established not by the
number of witnesses but by the quality of their
testimonies. The testimony of a single witness, if
E. TESTIMONIAL EVIDENCE positive and credible, is sufficient to support a
(RULE 130, C) conviction even in a charge of murder.
The number of witnesses does not determine the

Testimonial or oral evidence is evidence elicited outcome of the case. A positive identification will
from the mouth of a witness. It is sometimes called prevail over the defense of alibi, the latter being
viva voce evidence which literally means “living considered as a weaker defense since it can be easily
voice” or by word of mouth. In this kind of evidence, fabricated. (People v. Gani, G.R. No. 195523, 05 June
a human being (witness) is called to the stand, is 2013)
asked questions, and answers the question asked of
him. (Riano, 2019) Drug abuse will not render a person incompetent to
testify. Drug abuse becomes relevant only if the
witness was under the influence of drugs at the time
he is testifying. (Riano, 2019) (2011 BAR)
The relationship of a witness with a party does not

ipso facto render him a biased witness in a criminal

Evidence
case and likewise in a civil case. (Northwest Airlines produced for examination in court or at the taking
v. Chiong, G.R. No. 155550, 31 Jan. 2008) of their depositions. (Regalado, 2008)
Inconsistencies in the testimonies of prosecution Burden of Proof

witnesses that do not relate to the elements of the
offense are too inconsequential to warrant a The burden is upon the party objecting to the
reversal of the trial court’s judgment of conviction. competency of a witness to establish the ground of
Also, the defenses of denial and frame-up must be incompetency.
substantiated with clear and convincing evidence;
otherwise, same cannot prevail over the positive Competency vs. Credibility of a Witness
and credible testimonies of the prosecution
witnesses. (Aurelio v. People, G.R. No. 174980, 31 COMPETENCY CREDIBILITY
Aug. 2011) OF WITNESS OF WITNESS
Refers to the basic Refers to the
Presumption of Competency of a Witness qualifications of a believability of a
witness. witness.
GR: A person who takes the witness stand, is It is a matter of law or a
presumed to be qualified to testify. A party who matter of rule.
desires to question the competence of a witness Refers to the weight
must do so by making an objection as soon as the It also includes the and trustworthiness or
facts tending to show incompetency are apparent. absence of any of the reliability of the
(Jones on Evidence, Vol. 3, Sec. 796) disqualifications testimony.
imposed upon a
A prospective witness must show that he has the witness.
following abilities:
GR: Discrepancies between the statements of the
1. To observe – The testimonial quality of affiant in his affidavit and those made by him or her
perception; on the witness stand do not necessarily discredit
2. To remember – The testimonial quality of him or her because it is a matter of judicial
memory; experience that an affidavit, being taken ex parte, is
3. To relate – The testimonial quality of narration; almost always incomplete and often inaccurate.
and
4. To recognize a duty to tell the truth – The XPN: The credibility of witnesses will be impaired
testimonial quality of sincerity. (Herrera, 1999) if:
XPNs: There is prima facie evidence of 1. The omission in the affidavit refers to a very
incompetency in the following: important detail of the incident that one
relating the incident as an eyewitness would
1. The fact that a person has been recently found not be expected to fail to mention; or
of unsound mind by a court of competent
jurisdiction; or 2. When the narration in the sworn statement
2. That one is an inmate of an asylum. (Torres v. substantially contradicts the testimony in court.
Lopez, 48 Phil. 772)
The point of inquiry is whether the omission is
Time when the Witness must Possess the important or substantial. (People v. Calegan, G.R.
Qualifications No. 93846, 30 June 1994)
The qualifications and disqualifications of witnesses

are determined as of the time said witnesses are

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Remedial Law
Credibility of a Witness witnesses themselves and observed their

deportment during trial. Here, there is nothing from
A testimony must not only come from a credible the records that would impel this Court to deviate
witness, but must be credible in itself, tested by from the findings and conclusions of the trial court
human experience, observation, common as affirmed by the CA. (People v. Ending G.R. No.
knowledge, and accepted conduct that has evolved 183827, 12 Nov. 2012)
through the years. (People v. Mirandilla Jr., G.R. No.
186417, 21 July 2011) Disqualification of Witnesses
NOTE: Mental unsoundness of the witness which 1. Disqualification by reason of marriage or the
occurred at the time of taking his testimony, affects Marital Disqualification Rule (Sec. 23, Rule 130,
only his credibility. Nevertheless, as long as the ROC, as amended);
witness can convey ideas by words or signs and give
sufficiently intelligent answers to questions 2. Disqualification by reason of privileged
propounded, she is a competent witness even if she communication:
is feeble-minded or is a mental retardate or is a a. Marital privilege;
schizophrenic. (People v. De Jesus, G.R. No. L-39087, b. Attorney-client privilege;
27 Apr. 1984) c. Doctor-patient privilege;
Findings on the Credibility of a Witness d. Minister-penitent privilege; or
e. Public officer as regards communications
GR: The determination of credibility of witnesses is made in official confidence. (Sec. 24, Rule
properly within the domain of the trial court as it is 130, ROC, as amended)
in the best position to observe their demeanor and
bodily movements. The findings of the trial court NOTE: The qualifications and disqualifications of
with respect to the credibility of witnesses and their witnesses are determined as of the time they are
testimonies are entitled to great respect, and even produced for examination in court or at the taking
finality. (Llanto v. Alzona, G.R. No. 150730, 31 Jan. of the depositions. Blood relationship does not
2005) disqualify a witness. (Bernardo, 2008)
XPNs: Absolute Disqualification vs. Relative

1. The lower court has reached conclusions that Disqualification
are clearly unsupported by evidence; or
2. It has overlooked some facts or circumstances ABSOLUTE RELATIVE
of weight and influence which, if considered, DISQUALIFICATION DISQUALIFICATION
would affect the result of the case. (People v. The proposed witness
Dalag, G.R. No. 129895, 30 Apr. 2003) is prohibited to testify
only on certain matters
NOTE: It is a jurisprudentially conceded rule that it The proposed witness specified under Secs.
is against human nature for a young girl to fabricate is prohibited to take 23 and 24 (now only
a story that would expose herself as well as her the witness stand. Sec. 24), Rule 130 due
family to a lifetime of shame, especially when her (Herrera, 1999) to interest or
charge could mean the death or lifetime relationship, or to
imprisonment of her own father. "AAA" was without privileges of other
doubt telling the truth when she declared that her parties. (Ibid.)
father raped her on three separate occasions. The Disqualification by
Disqualification by
attempt to discredit the testimony of "AAA" by the reason of privileged
reason of marriage.
accused deserves no merit. When credibility is in communication. (Sec.
issue, the Court generally defers to the findings of 24, Rule 130, ROC, as
as amended)
the trial court considering that it was in a better amended)
position to decide the question, having heard the

Evidence
Conviction of a Crime as a Ground for Requisites for the Applicability of Spousal

Disqualification Immunity
GR: Conviction of a crime is not a ground for 1. That the spouse for or against whom the
disqualification as a witness. (Sec. 21, Rule 130, ROC, testimony of the other is offered is a party to the
as amended) case;
2. That the spouses are legally married (valid until
XPNs: Otherwise provided by law, such as the annulled);
following: 3. That the testimony is offered during the
existence of the marriage; and
1. Those who have been convicted of falsification 4. That the case is not by one against the other.
of a document, perjury or false testimony are (Herrera, 1999)
prohibited from being witnesses to a will (Art.
821, NCC); Exceptions to Spousal Immunity
1. Consent is given by the party-spouse;
2. Those who have been convicted of an offense 2. In a civil case filed by one against the other;
involving moral turpitude cannot be discharged 3. In a criminal case for a crime committed by one
to become a State witness (Sec. 17, Rule 119, against the other or the latter’s direct
ROC, as amended); and descendants or ascendants (Sec. 23, Rule 130,
ROC, as amended);
3. Those who fall under the disqualification 4. Where the testimony was made after the
provided under Secs. 23 and 24, Rule 130. dissolution of the marriage (Riano, 2019); or
5. Where the spouse-party fails to raise the
Disqualification by Reason of Marriage (Marital disqualification, it is deemed a waiver.
Disqualification/Spousal Immunity Rule)
Waiver of Spousal Immunity
During their marriage, the husband or the wife
cannot testify against the other without the consent Objections to the competency of a husband or wife
of the affected spouse, except in a civil case by one to testify in a criminal prosecution against the other
against the other, or in a criminal case for a crime may be waived as in the case of the other witnesses
committed by one against the other or the latter’s generally. Thus, the accused waives his or her
direct descendants or ascendants. (Sec. 23, Rule 130, privilege by calling the other spouse as a witness for
ROC, as amended) him or her. It is also true that objection to the
spouse's competency must be made when he or she
Rationale for the Disqualification is first offered as witness, and that the
incompetency may be waived by the failure of the
a. There is identity of interests between husband accused to make timely objection to the admission
and wife; of the spouse's testimony, although knowing of such
b. There is a consequent danger of perjury if one incompetency, and the testimony admitted. (People
were to testify for or against the other; v. Francisco, 78 Phil. 694, citing 3 Wharton's Criminal
c. The policy of the law is to guard the security and Evidence, 11th Ed., Section 1205, pp. 2060-2061)
confidences of private life, even at the risk of an
occasional failure of justice, and to prevent Extent of Prohibition
domestic disunion and unhappiness; and
d. Where there is want of domestic tranquility, The prohibition extends not only to a testimony
there is danger of punishing one spouse adverse to the spouse but also to a testimony in
through the hostile testimony of the other. favor of the spouse. It also extends to both criminal
(Alvarez v. Ramirez, G.R. No. 143439, 14 Oct. and civil cases (Riano, 2019), and not only consists
2005) of utterances but also the production of documents.

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Remedial Law
(Riano, 2019, citing State v. Bramlet, 114 S. C. 389, A: YES. The marital disqualification rule is aimed at
103 S.E. 755) protecting the harmony and confidences of marital
relations. Hence, where the marital and domestic
Who can claim Spousal Immunity relations are so strained that there is no more
harmony to be preserved nor peace and tranquility
The privilege to object may be claimed only by the which may be disturbed, the marital disqualification
spouse-party and not the other spouse who is no longer applies.
offered as a witness. (Herrera, 1999, citing Ortiz vs.
Arambulo, 8 Phil. 98) The act of Bob in setting fire to the house of his
sister-in-law, knowing fully well that his wife was
Testimony where Spouse is Accused with Others there, is an act totally alien to the harmony and
confidences of marital relations which the
The spouse could testify in a murder case against disqualification primarily seeks to protect. The
the other co-accused who were jointly tried with the criminal act complained of had the effect of directly
accused-spouse. This testimony cannot, however, and vitally impairing the conjugal relation. (Alvarez
be used against accused-spouse directly or through v. Ramirez, G.R. No. 143439, 14 Oct. 2005)
the guise of taking judicial notice of the proceedings
in the murder case without violating the marital Q: Alex and Bianca are legally married. Alex is
disqualification rule, if the testimony is properly charged in court with the crime of serious
objected. (People v. Quidato, Jr., G.R. No. 117401, 01 physical injuries committed against Carding,
Oct. 1998) son of Bianca and stepson of Alex. Bianca
witnessed the infliction of the injuries on
Marrying the Witness Carding by Alex. The public prosecutor called
Bianca to the witness stand and offered her
An accused can effectively “seal the lips” of a witness testimony as an eyewitness. Counsel for Alex
by marrying the witness. As long as a valid marriage objected on the ground of the marital
is in existence at the time of the trial, the witness- disqualification rule under the Rules of Court.
spouse cannot be compelled to testify –even though a. Is the objection valid?
the marriage was entered into for the express b. Will your answer be the same if Bianca’s
purpose of suppressing the testimony. (Herrera, testimony is offered in a civil case for
1999) recovery of personal property filed by
Carding against Alex? (2000, 2004 BAR)
Testimony by the Estranged Spouse
A:
Q: Ivy was estranged from her husband Bob for a. NO. While neither the husband nor the wife
more than a year due to Bob’s suspicion that she may testify against each other without the
was having an affair with Jeff, their neighbor. Ivy consent of the affected spouse, one exception is
was temporarily living with her sister in Pasig if the testimony of the spouse is in a criminal
City. For unknown reasons, the house of Ivy’s case for a crime committed by one against the
sister was burned, killing the latter. Ivy other or the latter’s direct descendants or
survived. Ivy saw her husband in the vicinity ascendants. (Sec. 23, Rule 130, ROC, as amended)
during the incident. Later, Bob was charged with Here, Carding is the direct descendant of
arson in an Information filed with the RTC, Pasig Bianca, the wife of Alex. Hence, the testimony of
City. During the trial, the prosecutor called Ivy to Bianca falls under the exception to the marital
the witness stand and offered her testimony to disqualification rule.
prove that her husband committed arson. Can
Ivy testify over the objection of her husband on b. NO. The marital disqualification rule applies
the ground of marital privilege? (2006, 2013 this time. One of the exceptions to the marital
BAR) disqualification rule is when the testimony is
given in a civil case by one spouse against the

Evidence
other. Here, the case involves a case by Carding maintenance of the sacred institution of marriage.
for the recovery of personal property against (Herrera, 1999)
Bianca’s spouse Alex.
Requisites for the Application of Marital
2. TESTIMONIAL PRIVILEGE Privilege
Scope of Disqualification by reason of Privileged 1. There must be a valid marriage between the
Communication husband and wife;
2. There is a communication received in
The disqualification by reason of privileged confidence by one from the other;
communication applies to both civil and criminal 3. The confidential communication was received
cases except doctor-patient privilege, which is during the marriage (Riano, 2019); and
applicable only in civil cases. Unless waived, the 4. The spouse against whom such evidence is
disqualification under Sec. 24, Rule 130 remains being offered has not given his or her consent to
even after the various relationships therein have such testimony. (Regalado, 2008)
ceased to exist.
Cases when Marital Privilege is NOT Applicable
Who may assert the Privilege
A. In a civil case by one against the other;
The holder of the privilege, authorized persons and B. In a criminal case for a crime committed by one
persons to whom privileged communication were against the other or the latter’s direct
made may assert the privilege. (Herrera, 1999) descendants or ascendants (Sec. 24[a], Rule
130) (Sec. 24(a), Rule 130, ROC, as amended); or
Rule on Third Parties C. Information acquired by a spouse before the
marriage even if received confidentially will not
The communication shall remain privileged, even in fall squarely within the privilege. (Riano, 2019)
the hands of a third person who may have obtained
the information, provided that the original parties Marital Disqualification vs. Marital Privilege
to the communication took reasonable precaution
to protect its confidentiality. (Sec. 24, Rule 130, ROC, DISQUALIFICATION
DISQUALIFICATION
as amended) BY REASON OF
BY REASON OF
MARITAL
MARRIAGE
MARITAL/SPOUSAL PRIVILEGE PRIVILEGE
(SEC. 23)
(Sec. 24(A), Rule 130) (SEC. 24(A))
When can be invoked
The husband or the wife, during or after the
Can be invoked only if Can be claimed whether
marriage, cannot be examined without the consent
one of the spouses is a the other spouse is a
of the other as to any communication received in
party to the action. party to the action.
confidence by one from the other during the
marriage except in a civil case by one against the Coverage
other, or in a criminal case for a crime committed by Includes facts,
Only to confidential
one against the other or the latter's direct occurrences or
information received
descendants or ascendants. (Sec. 24(a), Rule 130, information even prior
during the marriage.
ROC, as amended) to the marriage.
Duration
Purpose of Marital Privilege Applies only if the
Can be claimed even
marriage is existing at
The society has a deeply rooted interest in the after the marriage has
the time the testimony
preservation of peace in families and in the been dissolved.
is offered.

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Remedial Law
Limitations this time on the ground of marital privilege

Constitutes a total Applies only to rule under Sec. 24, Rule 130?
prohibition against confidential c. Suppose the information received by B was
any testimony for or communications communicated to A during their marriage,
against the spouse of between the spouses. can A validly object to the testimony of B if it
the witness. (Regalado, 2008) was offered after the dissolution of their
The spouse affected by marriage on the ground of marital
the disclosure of the disqualification rule under Sec. 23 Rule 130?
information or
testimony may object A:
Can no longer be even after the a. YES. Irrespective of the fact that B was
invoked once the dissolution of the informed of the killing before her marriage to A,
marriage is dissolved. marriage. (Riano, 2019) still, the testimony was offered during their
marriage, which brings it into the ambit of the
NOTE: It is not affected marital disqualification rule under Sec. 23, Rule
by the death of the 130.
other spouse.
In both cases, it is essential that the marriage be b. NO. The testimony even if confidential was not
valid in order to claim such privilege. communicated to B during the time of marriage,
but after the marriage.
Other Items of Communication Overheard or in
Presence of Third Parties c. NO. He can only object based on the marital
disqualification rule if the testimony was
GR: Third persons who, without the knowledge of offered during their marriage and not to
the spouses, overheard the communication are not testimony offered after the dissolution of the
disqualified to testify. marriage. The proper objection must be based
on marital privilege rule under Sec. 24, Rule 130
XPNs: because such defense is applicable even after
1. When there is collusion and voluntary the dissolution of marriage provided that the
disclosure to a third party, that third party communication was made confidentially to B
becomes an agent and cannot testify. (Francisco, during their marriage.
1993)
Q: James, an alien, was criminally charged of
2. The communication shall remain privileged, promoting and facilitating child prostitution
even in the hands of a third person who may and other sexual abuses under R.A. 7610. The
have obtained the information, provided that principal witness against him was his Filipina
the original parties to the communication took wife, Conching. Earlier, she had complained that
reasonable precaution to protect its James’ hotel was being used as a center for sex
confidentiality. (Sec. 24, Rule 130, ROC, as tourism and child trafficking. The defense
amended) counsel for James objected to the testimony of
Conching at the trial of the child prostitution
Q: In June 1998, A told B that he killed C. After a case and the introduction of the affidavits she
year, A married B. Upon the offer of testimony of executed against her husband as a violation of
B for the alleged killing of C. spousal confidentiality and marital privilege
rule. It turned out that Patring, the minor
a. Can A validly make an objection? daughter of Conching by her first husband who
b. Suppose the testimony was offered at the was a Filipino, was molested by James earlier.
time the marriage between A and B was Thus, Conching had filed for legal separation
already terminated, can A still validly object, from James since last year. May the court admit
the testimony and affidavits of the wife,

Evidence
Conching, against her husband, James, in the ATTORNEY AND CLIENT

criminal case involving child prostitution? (Sec. 24(B), Rule 130)
Reason. (2004 BAR)
Requisites for the Privilege
A: YES. If the testimony and affidavit of the wife are
evidence used in the case against her husband for 1. There must be a communication made by the
child prostitution involving her daughter, the client to the attorney, or and advice given by the
evidence are admissible. The marital privileged attorney to his client;
communication rule under Sec. 24 of Rule 130, as 2. The communication or advice must be given in
well as the marital disqualification rule under Sec. confidence; and
23 of the same rule, do not apply to and cannot be 3. The communication or advice must be given
invoked in a criminal case committed by a spouse either in the course of the professional
against the direct descendants of the other. employment or with a view of professional
employment. (Riano, 2019)
A crime committed by the husband against the
daughter of his wife is considered a crime The Rules safeguarding privileged communications
committed against the wife and directly attacks or between attorney and client shall apply to similar
vitally impairs the marital relations. (Riano, 2019,) communications made to or received by the law
student, acting for the legal clinic (Sec. 3, Rule 138-A,
Q: John filed a petition for declaration of nullity ROC, as amended). The privilege does not extend to
of his marriage to Anne on the ground of communications where the client’s purpose is the
psychological incapacity under Article 36 of the furtherance of a future intended crime or fraud, or
Family Code. He obtained a copy of the for the purpose of committing a crime or a tort, or
confidential psychiatric evaluation report on his those made in furtherance of an illicit activity
wife from the secretary of the psychiatrist. Can (Riano, 2019).
he testify on the said report without offending
the rule on privileged communication? (2016 Purpose of Attorney-Client Privilege
BAR)
To encourage full disclosure by client to her
A: YES. Under the rule on privileged attorney of all pertinent matters, so as to further the
communication, the husband or the wife, during or administration of justice. (Herrera, 1999)
after the marriage, cannot be examined without the
consent of the other as to any communication Test in Applying the Attorney-Client Privilege
received in confidence by one from the other during
the marriage except in a civil case filed by one The test is whether the communications are made
against the other, or in a criminal case for a crime to an attorney with a view of obtaining from him
committed by one against the other or the latter’s professional assistance or advice regardless of
direct descendants or ascendants. (Sec. 24(a), Rule whether there is a pending or merely impending
130, ROC, as amended) In this case, Anne cannot litigation or any litigation. (Herrera, 1999)
prevent John from testifying against her since the
petition for declaration of nullity is a civil case filed NOTE: The present rules do not require a perfected
by one spouse against the other; hence, the rule on attorney-client relationship for the privilege to
privileged communication between the spouses exist. It is enough that the communication or advice
does not apply. John could testify on the confidential be “with a view to” professional employment.
psychiatric evaluation report of his wife that he (Riano, 2019)
obtained from the secretary of the psychiatrist,
without offending the rule on privileged The scope of this privilege is extended not only to
communication. the Attorney but also to those persons reasonably
believed by the client to be licensed to engage in the
practice of law.

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Remedial Law
In addition, an attorney’s secretary, stenographer, Cases when the Privilege is Applicable

or clerk, or other persons assisting the attorney
cannot be examined without the consent of the 1. Privilege is not confined to communications
client and his or her employer, concerning any fact regarding actual pending cases. It may also
the knowledge of which has been acquired in such refer to anticipated litigations;
capacity. (Section 24(b), Rule 130, ROC, as amended) 2. Communication may be oral or written but it is
deemed to extend to other forms of conduct,
Confidential communication like physical demonstration;
3. The statement of the client need not be made to
It refers to information transmitted by voluntary act the attorney in person. Those made to the
of disclosure between attorney and client in attorney’s secretary, clerk or stenographer for
confidence and by means which, so far as the client purpose of the professional relationship, or the
is aware, discloses the information to no third knowledge acquired by such employees in such
person other than one reasonably necessary for the capacity; and
transmission of the information or the 4. In an action filed for payment of attorney’s fees
accomplishment of the purpose for which it was or for damages against the negligence of the
given. (Mercado v. Vitriolo, A.C. No. 5108, 26 May attorney.
2005)
Communications NOT Covered by the Privilege
Waiver of Attorney-Client Privilege
If the communication is:
The privilege belongs to the client and if he waives
the privilege, no one else, including the attorney, can 1. Intended to be made public;
invoke it. (Riano, 2019) 2. Intended to be communicated to others;
3. Intended for an unlawful purpose;
Doctrine of Absolute Privilege
NOTE: The privilege does not extend to
A communication is absolutely privileged when it communications where the client’s purpose is
is not actionable, even if the author has acted in bad the furtherance of a future intended crime or
faith. This class includes allegations or statements fraud, or for the purpose of committing a crime
made by parties or their counsel in pleadings or or a tort, or those made in furtherance of an
motions or during the hearing of judicial and illicit activity (Riano, 2019).
administrative proceedings, as well as answers
given by the witness in reply to questions 4. Received from third persons not acting in behalf
propounded to them in the course of said or as agents of the client; or
proceedings, provided that said allegations or
statements are relevant to the issues, and the 5. Made in the presence of third parties who are
answers are responsive to the questions strangers to the attorney-client relationship.
propounded to said witnesses. (Belen v. People, G.R. (Regalado, 2008)
No. 211120, 13 Feb. 2017)
Cases when the Privilege is NOT Applicable
The absolute privilege remains regardless of the
defamatory tenor and the presence of malice, a. Furtherance of crime or fraud/ “Future crime-
pertinent or material to the cause in and or subject fraud exception”. If the services or advice of the
of the inquiry. (Ibid.) lawyer were sought or obtained to enable or aid
anyone to commit or plan to commit what the
client knew or reasonably should have known
to be a crime or fraud;

Evidence
NOTE: The rationale for this exception is that In theory, the client has impliedly waived the
clients are not entitled to use lawyers to help privilege by making allegations of breach of
them in pursuing unlawful or fraudulent duty against the lawyer. (Ibid.)
objectives. If the privilege were to cloak such
activity, the result would be loss of public d. Document attested by the lawyer. As to a
confidence and corruption of profession. communication relevant to an issue concerning
(Explanatory Notes, ROC, as amended) an attested document to which the lawyer is an
attesting witness;
The policy of the privilege is that of promoting
the administration of justice and it would be a e. Joint clients. As to a communication relevant to
perversion of the privilege to extend it to the a matter of common interest between two or
client who seeks advice to aid him in carrying more clients if the communication was made by
out an illegal fraudulent scheme. This would be any of them to a lawyer retained or consulted in
tantamount to participating in a conspiracy. common, when offered in action between any of
(Explanatory Notes, ROC, as amended) the clients, unless they have expressly agreed
otherwise. (Sec. 24(b), Rule 130, ROC, as
b. Claimants through some deceased client. As to amended)
communication relevant to an issue between
parties who claim through the same deceased NOTE: The rationale for the exception is that
client, regardless of whether the claims are by joint clients do not intend their
testate or intestate or by inter vivos transaction; communications to be confidential from each
other, and typically their communications are
NOTE: While the attorney-client privilege made in each other’s presence. Agreeing to joint
survives the death of the client, there is no representation means that each joint client
privilege in a will contest or other case between accepts the risk that another joint client may
parties who both claim through that very client. later use what he or she has said to the lawyer.
This is because his communications may be (Explanatory Notes, ROC, as amended,)
essential to an accurate resolution of competing
claims of succession, and the testator would Applicability of the Rule regarding the Identity
presumably favor disclosure in order to dispose of the Client
of his estate accordingly. (Explanatory Notes,
ROC, as amended) GR: A lawyer may NOT invoke the privilege and
refuse to divulge the name or identity of his client.
c. Breach of duty by lawyer or client/Self-defense
exception. As to communication relevant to an XPNs:
issue of breach of duty by the lawyer to his or 1. Where a strong possibility exists that revealing
her client, or by the client to his or her lawyer; the client’s name would implicate the client in
the very activity for which he sought the
NOTE: If the lawyer and client become involved lawyer’s advice;
in a dispute between themselves concerning the
services provided by the lawyer, the privilege 2. Where disclosure would open the client to civil
does not apply to their dispute. Thus, where a liability; or
client alleges breach of duty on the part of the
lawyer, i.e., professional malpractice, 3. Last Link Doctrine – Where the government’s
incompetence, or ethical violations – or where lawyers have no case against an attorney’s
the lawyer sues a client for his fee, either the client unless, by revealing the client’s name, the
lawyer or client may testify as to said name would furnish the only link that
communications between them. (Explanatory would form the chain of testimony necessary to
Notes, ROC, as amended) convict an individual for a crime. (Regala v.
Sandiganbayan, G.R. No. 105938, 03 Sept. 1996)

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Remedial Law
Q: On August 15, 2008, Edgardo committed company owning the other vessel for damages to
estafa against Petronilo in the amount of 3 the tug. Ely obtained signed statements from the
million pesos. Petronilo brought his complaint survivors. He also interviewed other persons, in
to the National Bureau of Investigation, which some instances making memoranda. The heirs
found that Edgardo had visited his lawyer twice, of the five (5) victims filed an action for damages
the first time on August 14, and the second against SPS.
August 16, 2008; and that both visits concerned
the swindling of Edgardo. Plaintiff’s counsel sent written interrogatories
to Ely, asking whether statements of witnesses
During the trial, the RTC issued a subpoena ad were obtained; if written, copies were to be
testificandum to Edgardo’s lawyer for him to furnished; if oral, the exact provisions were to
testify the conversations during their first and be set forth in detail. Ely refused to comply,
second meetings. May the subpoena be quashed arguing that the documents and information
on the ground of privileged communication? asked are privileged communication. Is the
Explain fully. (2008 BAR) contention tenable? Explain. (2008 BAR)
A: NO. The subpoena may not be simply quashed on A: NO. The documents and information sought to be
the allegation that the testimony to be elicited disclosed are not privileged. They are evidentiary
constitutes privileged communication. It may be matters which will eventually be disclosed during
noted that the accused committed the crime the trials.
swindling on August 15, 2008, whereas he first
visited his lawyer on August 14, 2008 or before he Under Sec. 24(b) of Rule 130, the privileged matters
committed the swindling. are:
Clearly, the conversations the accused had with his a. The communication made by the client to the
lawyer before he committed the swindling cannot attorney; or
be protected by the privilege between attorney and b. The advice given by the attorney, in the course
client because the crime had not been committed of, or with the view to professional
yet and it is no part of a lawyer’s professional duty employment.
to assist or aid in the commission of a crime; hence
not in the course of professional employment. The information sought is neither a communication
by the client to the attorney nor an advice by the
The second visit by accused Edgardo to his lawyer attorney to his client (Riano, 2019).
on the next day (August 16, 2008) after the
swindling was committed may also suffer from the PHYSICIAN AND PATIENT
same infirmity as the conversations had during (SEC. 24(C), RULE 130)
their first meeting inasmuch as there could not be a
complaint made immediately after the estafa was Requisites for the Applicability of the Privilege
committed. The privilege covering a lawyer-client
relation under Sec. 24(b), Rule 130, may not be 1. The privilege is claimed in a civil case;
invoked, as it is not a ground for quashal of a
subpoena ad testificandum under Sec. 4, Rule 21 of NOTE: This privilege cannot be claimed in a
the Rules of Court. criminal case presumably because the interest
of the public in criminal prosecution should be
Q: A tugboat owned by SPS sank in Manila Bay deemed more important than the secrecy of the
while helping to tow another vessel, drowning communication. (Riano, 2019)
five (5) of the crew in the resulting shipwreck. At 2. The person against whom the privilege is
the maritime board inquiry, the four (4) claimed is a physician, psychotherapist or a
survivors testified. SPS engaged Atty. Ely to person reasonably believed by the patient to be
defend against potential claims and to sue the

Evidence
authorized to practice medicine or psychology; prompt the latter to clam up, thus putting his own
and health at great risk. (Chan v. Chan, G.R. No. 179786,
24 July 2013)
3. It refers to any confidential communication
made for the purpose of diagnosis or treatment NOTE: This privilege does not apply to autopsy.
of the patient’s physical, mental or emotional There is no patient or treatment involved in
condition, including alcohol or drug addiction. autopsies, the autopsy having been conducted on a
dead person. (Riguera, 2020)
NOTE: This privilege also applies to persons,
including members of the patient’s family, who have This privilege is not limited to testimonial evidence
participated in the diagnosis or treatment of the because to compel physician to disclose records or
patient under the direction of the physician or such documents would be in effect to compel him to
psychotherapist. testify against the patient. (Ibid.)
Psychotherapist Attending physician may testify as an expert

provided that his opinion is strictly based on
a. A person licensed to practice medicine hypothetical facts, excluding and disregarding any
engaged in the diagnosis or treatment of a personal knowledge of the information on the
mental or emotional condition; or patient acquired to the physician-patient
relationship. (Ibid.)
b. A person licensed as a psychologist by the
government while similarly engaged. (Sec 24 Information which CANNOT be Disclosed
(c), Rule 130, ROC, as amended)
1. Any confidential communication made for the
NOTE: For one to be considered a purpose of diagnosis or treatment of the
“psychotherapist,” a medical doctor need only be patient’s physical, mental or emotional
“licensed” to practice medicine and need not be a condition, including alcohol or drug addiction;
psychiatrist, whereas a psychologist must be and
“licensed” by the government. (Explanatory Notes,
ROC, as amended) 2. Any information acquired by persons, including
members of the patient’s family, who have
Purpose of the Privilege participated in the diagnosis or treatment of the
patient under the direction of the physician or
The privilege is intended to facilitate and make safe, psychotherapist. (Sec. 24(c), Rule 130, ROC, as
full and confidential disclosure by patient to doctor amended)
of all facts, circumstances, and symptoms,
unrestricted by apprehension of their subsequent Waiver of Privilege by the patient; Express or
and enforced disclosure and publication on the Implied
witness stand, to the end that the physician may
form a correct opinion and be enabled safely and 1. By a contract, as in medical or life insurance;
efficaciously to treat his patient. (Herrera, 1999) 2. Disclosure by the patient of the information;
3. When the patient answers questions on matters
This rule is intended to encourage the patient to which are supposedly privileged on cross-
open up to the physician, relate to him the history of examination (Riano, 2019); or
his ailment, and give him access to his body, 4. By operation of law. (Sec. 4, Rule 28, ROC, as
enabling the physician to make a correct diagnosis amended)
of that ailment and provide the appropriate cure.
Any fear that a physician could be compelled in the
future to come to court and narrate all that had
transpired between him and the patient might

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Remedial Law
Cases when the Privilege is NOT Applicable Purpose of the Priest-Penitent Privilege
a. The communication was not given in Allow and encourage individuals to fulfill their
confidence; religious, emotional or other needs by protecting
b. The communication is irrelevant to the confidential disclosures to religious practitioners.
professional employment; (Peralta, Jr., 2005)
c. The communication was made for an unlawful
purpose; Requisites for the Applicability of the Priest-
d. The information was intended to be made Penitent Privilege
public; or
e. There was a waiver of the privilege either by 1. The communication, confession, or advice must
provisions of contract or law (Regalado, 2008); have been made to the priest in his or her
and professional character in the course of
f. Dentists, pharmacists or nurses are discipline enjoined by the church to which the
disqualified. minister or priest belongs. (Sec. 24(d), Rule 130,
XPN: If the third person is acting as an agent of 2. Communications made must be confidential
the doctor in a professional capacity. and must be penitential in character, e.g., under
the seal of the confessional. (Regalado, 2008)
NOTE: It is essential that at the time the
communication was made, the professional NOTE: The privilege also extends not only to a
relationship is existing when the doctor was confession made by the penitent but also to any
attending to the patient for curative, preventive or advice given by the minister or priest.
palliative treatment. The treatment may have been
given at the behest of another, the patient being in Extent of the Priest-Penitent privilege
extremis. (Regalado, 2008)
The communication must be made pursuant to
The rule does not require that the relationship confession of sins. Where the penitent discussed
between the physician and the patient be a result of business arrangements with the priest, the privilege
a contractual relationship. It could be the result of a does not apply. (Riano, 2019)
quasi-contractual relationship as when the patient
is seriously ill and the physician treats him even if A third person who overheard the confession is not
he is not in a condition to give his consent. (Riano, disqualified. (Herrera, 1999)
2019)
Who holds the Privilege
PRIEST AND PENITENT
(SEC. 24(D), RULE 130) The person making the confession holds the
privilege. The priest or minister hearing the
A minister, priest or person reasonably believed to confession in his professional capacity is prohibited
be so cannot, without the consent of the affected from making a disclosure of the confession without
person, be examined as to any confession made to the consent.
or any advice given by him or her in his or her
professional character in the course of discipline Q: For over a year, Nenita had been estranged
enjoined by the church to which the minister or from her husband Walter because of the latter’s
priest belongs. (Sec. 24(d), Rule 130, ROC, as suspicion that she was having an affair with
amended) Vladimir, a barangay kagawad who lived in
nearby Mandaluyong. Nenita lived in the
meantime with her sister in Makati. One day, the
house of Nenita’s sister inexplicably burned
almost to the ground. Nenita and her sister were

Evidence
caught inside the house but Nenita survived as b. YES. The testimony of Walter’s psychiatrist may
she fled in time, while her sister was caught be allowed. The privileged communication
inside when the house collapsed. As she was contemplated under Sec. 24(c) Rule applies
running away from the burning house, Nenita only in civil cases and not in a criminal case for
was surprised to see her husband also running arson. Besides, the subject of the testimony of
away from the scene. Dr. Carlos, Walter’s Dr. Carlos was not in connection with the advice
psychiatrist who lived near the burned house or treatment given by him to Walter, or any
and whom Walter medically consulted after the information he acquired in attending to Walter
fire, also saw Walter in the vicinity some in a professional capacity. The testimony of Dr.
minutes before the fire. Coincidentally, Fr. Carlos is limited only to what he perceived at
Platino, the parish priest who regularly hears the vicinity of the fire and at about the time of
Walter’s confession and who heard it after the the fire.
fire, also encountered him not too far away from
the burned house. Walter was charged with c. YES. The priest can testify over the objection of
arson and at his trial, the prosecution moved to Walter. The disqualification requires that the
introduce the testimonies of Nenita, the doctor same were made pursuant to a religious duty
and the priest confessor, who all saw Walter at enjoined in the course of discipline of the sect
the vicinity of the fire at about the time of the or denomination to which they belong and must
fire. (2006, 2013 BAR) be confidential and penitential in character, e.g.,
under the seal of confession. (Sec. 24(d), Rule
a. May the testimony of Nenita be allowed over 130, ROC, as amended) Here, the testimony of Fr.
the objection of Walter? Platino was not previously subject of a
b. May the testimony of Dr. Carlos, Walter’s confession of Walter or an advice given by him
psychiatrist, be allowed over Walter’s to Walter in his professional character. The
objection? testimony was merely limited to what Fr.
c. May the testimony of Fr. Platino, the priest Platino perceived “at the vicinity of the fire and
confessor, be allowed over Walter’s at about the time of the fire.”
objection?
PUBLIC OFFICERS
A: (SEC. 24(E), RULE 130)
a. NO. Nenita may not be allowed to testify against
Walter. Under the Marital Disqualification Rule, A public officer cannot be examined during or after
neither the husband nor the wife, during their his or her tenure as to communications made to him
marriage, may testify for or against the other or her in official confidence, when the court finds
without the consent of the affected spouse, that the public interest would suffer by the
except in a civil case by one against the other, or disclosure.
in a criminal case for a crime committed by one
against the other or the latter's direct Rationale
descendants or ascendants. (Sec. 23, Rule 130,
ROC, as amended) General grounds of public policy.
The foregoing exceptions cannot apply since it The right of the people to information on matters of
only extends to a criminal case of one spouse public concern shall be recognized. Access to official
against the other or the latter’s direct records, and to documents and papers pertaining to
ascendants or descendants. Clearly, Nenita is official acts, transactions, or decisions, as well as to
not the offended party and her sister is not her government research data used as basis for policy
direct ascendant or descendant for her to fall development, shall be afforded the citizen, subject
within the exception. to such limitations as maybe provided by law. (Sec.
7, Article III, 1987 Constitution)

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Requisites for its Application executive’s domestic decisional and policy making
functions, that is, those documents reflecting the
1. The holder of the privilege is the government, frank expression necessary in intra-governmental
acting through a public officer; advisory and deliberative communications. (Senate
2. The communication was given to the public v. Ermita, G.R. No. 169777, 20 Apr. 2006)
officer in official confidence;
3. The communication was given during or after There are types of information which the
his or her tenure; and government may withhold from the public like
4. The public interest would suffer by the secrets involving military, diplomatic, and national
disclosure of the communication. (Herrera, security matters, and information on investigations
1999) of crimes by law enforcement agencies before the
prosecution of the accused before the prosecution
Cases when the Privilege is Inapplicable and of the accused were exempted from the right to
Disclosure will be Compelled information. (Chavez v. Public Estates Authority. G.R.
No. 133250, 09 July 2002)
1. The disclosure is useful to vindicate the
innocence of an accused person; It is a privilege which protects the confidentiality of
2. To lessen risk of false testimony; conversations that take place in the President’s
3. The disclosure is essential to the proper performance of his official duties. The privilege may
disposition of the case; or be invoked not only by the President, but also by his
4. The benefit to be gained by a correct disposition close advisors under the “operational proximity
of the litigation was greater than any injury test.” (Neri v. Senate Committee on Accountability of
which could inure to the relation by a disclosure Public Officers and Investigations, G.R. No. 180643, 25
of information. (Francisco, 1996) Mar. 2008)
NOTE: To invoke this rule, it must first be Requisites of Presidential Communications

established that public interest would suffer by the Privilege
disclosure. In the case of closed bank, any
disclosure of tapes and transcripts would not pose 1. The protected communication must relate to a
danger or peril to the economy. (Riguera, 2020) “quintessential and non-delegable presidential
power;”
The disclosure or non-disclosure is not dependent
on the will of the officer but on the determination by 2. The communication must be authored or
a competent court. (Riano, 2019) “solicited and received” by a close advisor of the
president or the president himself. The judicial
Executive Privilege test is that an advisor must be in operational
proximity with the president;
The power of the President and other high-ranking
executive officers to withhold information from the 3. The presidential communication privilege
public, the courts, and the Congress. remains a qualified privilege that may be
overcome by a showing of adequate need, such
This privilege, based on the constitutional doctrine that the information sought “likely contains
of separation of powers, exempts the executive from important evidence” and by the unavailability
disclosure requirements applicable to the ordinary of the information elsewhere by an appropriate
citizen or organization where such exemption is investigating authority. (Neri v. Senate
necessary to the discharge of highly important Committee on Accountability of Public Officers
executive responsibilities involved in maintaining and Investigations, G.R. No. 180643, 25 Mar.
governmental operations, and extends not only to 2008)
military and diplomatic secrets but also to
documents integral to an appropriate exercise of the

Evidence
Q: The Senate sought to question Mr. Romulo PARENTAL AND FILIAL PRIVILEGE RULE
Neri, a member of President Arroyo’s cabinet, on (Sec. 25, Rule 130)
whether President Arroyo followed up the
National Broadband Network project financed No person shall be compelled to testify against his
by Chinese loans, whether she directed him to or her parents, other direct ascendants, children or
prioritize it, and whether she directed him to other direct descendants, except when such
approve it. Mr. Neri invoked executive privilege testimony is indispensable in a crime against that
stating that his conversations with the president person or by one parent against the other.
dealt with delicate and sensitive national
security and diplomatic matters relating to the NOTE: It is a privilege which consist of exempting
impact of scandal on high government officials the witness, having attended the court where his
and the possible loss of confidence by foreign testimony is desired, from disclosing a certain part
investors and lenders. May Mr. Neri’s invocation of his knowledge. (Fit for a Queen Agency, Inc. v.
of executive privilege be upheld? Ramirez, SP-06510, 15 Nov. 1977)
A: YES. The Supreme Court upheld Mr. Neri’s Two Types of Privileges under Sec. 25, Rule 130
invocation of executive privilege (more specifically
the presidential communications privilege) stating 1. Parental privilege rule - a parent cannot be
that the disclosure might impair our diplomatic as compelled to testify against his child or other
well as economic relations with China (Neri v. Senate direct descendants.
Committee on Accountability of Public Officers and
Investigations, G.R. No. 180643, 25 Mar. 2008) NOTE: A person, however, may testify against
his parents or children voluntarily but if he
Deliberative Process Privilege refuses to do so, the rule protects him from any
compulsion. Said rule applies to both criminal
The privilege protects from disclosure advisory and civil cases since the rule makes no
opinions, recommendations, and deliberations distinction. (Sec. 25, Rule 130, ROC, as amended)
comprising part of a process by which
governmental decisions and polices are formulated. 2. Filial privilege rule – a child may not be
(Riguera, 2020) compelled to testify against his parents, or
other direct descendants.
Written advice from variety of individuals is an
important element of the government’s decision- NOTE: The filial privilege rule applies only to
making process and the interchange of advice could “direct” ascendants and descendants, a family
be stifled if courts forced the government to disclose tie connected by a common ancestry – a
those recommendations; thus, the privilege is stepdaughter has no common ancestry by her
intended to prevent the “chilling” of deliberative stepmother. (Lee v. Court of Appeals, G.R. No.
communications. (Ibid.) 177891, 13 July 2010)
The deliberative process privilege applies if its NOTE: An adopted child is covered by the rule.
purpose is served, that is, to protect the frank
exchange of ideas and opinions critical to the Criminal Cases
government’s decision-making process where
disclosure would discourage such discussion in the GR: No descendant shall be compelled, in a criminal
future. (Ibid.) case, to testify against his parents and grandparents.
XPNs: The descendant may be compelled to give his

testimony in the following instances:

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1. When such testimony is indispensable in a A:

crime committed against said descendant; or a. The rule of marital privilege cannot be invoked
2. In a crime committed by one parent against the in the annulment case under Article 36 of the
other. (Art. 215, Family Code) Family Code because it is a civil case filed by one
against the other. (Sec. 23, Rule 130, ROC, as
Q: A was convicted of raping his own daughter. amended)
His son, an 8-year-old boy, testified against him.
Can he object to the testimony on the ground of b. W cannot invoke the privilege which belongs to
filial privilege and invoke the incompetence of the child. C may testify if he wants to although
the child? he may not be compelled to do so. (Sec. 25, Rule
A: NO. The competency of his son is not affected by
the filial privilege rule. The Rule is not strictly c. D, as a doctor who used to treat W, is
speaking a disqualification but refers to a privilege disqualified to testify against W over her
not to testify, which can be invoked and waived like objection as to any advice or treatment given by
other privileges. The son was not compelled to him or any information which he may have
testify against his father but chose to waive that acquired in his professional capacity. (Sec.
filial privilege when he voluntarily testified against 24(c), Rule 130, ROC, as amended)
the accused. (People v. Invencion, G.R. No. 131636, 05
Mar. 2003) TRADE SECRETS
(Sec. 26, Rule 130)
Q: A, married to B, killed the latter. One of the
witnesses was C, the mother of B, who was being Trade Secret
compelled to testify against A. Can A object on
the ground of parental privilege? A secret formula or process not patented but known
only to certain individuals using it in compounding
A: NO. C is not a direct ascendant of A but that of B, some article of trade having a commercial value.
being the mother of the latter. Thus, the privilege Trade secrets are privilege matters whose
does not belong to A. disclosure is proscribed and penalized under the
Securities and Exchange Commission and the
NOTE: The Child Witness Rule provides that every Revised Penal Code.
child is presumed qualified to be a witness. (Sec. 6,
A.M. NO. 004-07-SC or the Rule on Examination of a A person cannot be compelled to testify about any
Child Witness, 21 Nov. 2000) trade secret unless the non-disclosure will conceal
fraud or otherwise work injustice. When disclosure
Q: C is the child of the spouses H and W. H sued is directed, the court shall take such protective
his wife W for judicial declaration of nullity of measure as the interest of the owner of the trade
marriage under Article 36 of the Family Code. In secret and of the parties and the furtherance of
the trial, the following testified over the justice may require. (Sec. 26, Rule 130, ROC, as
objection of W: C, H and D, a doctor of medicine amended)
who used to treat W. Rule on W's objections
which are the following: Trade secrets should receive greater protection
from discovery because they derive economic value
a. H cannot testify against her because of the from being generally unknown and not readily
rule on marital privilege; ascertainable by the public. (Air Philippines
b. C cannot testify against her because of the Corporation v. Pennswell, Inc., G.R. No. 1723835, 13
doctrine on parental privilege; and Dec. 2007)
c. D cannot testify against her because of the
doctrine of privileged communication
between patient and physician. (1998 BAR)

Evidence
Exception to the Application of the Privilege proceedings against the suspect shall have been
terminated.
The privilege is not absolute; the court may compel
disclosure where it is indispensable for doing 9. Media Practitioner’s Privilege
justice. (Ibid.)
GR: Without prejudice to his liability under the
Other Privileged Matters (Gu-E-V-Ta-Ba-C-A-I- civil and criminal law, any publisher, owner,
M) duly registered or accredited journalist, writer,
reporter, contributor, opinion writer, editor,
1. The Guardian ad litem shall not testify in any columnist manager, media practitioner
proceeding concerning any information, involved in the writing, editing, production, and
statement, or opinion received from the child in dissemination of news for mass circulation of
the course of serving as guardian ad litem, any print, broadcast, wire service organization,
unless the court finds it necessary to promote or electronic mass media cannot be compelled
the best interests of the child; (Sec. 5(e), Rule on to reveal the source of any news item, report or
Examination of a Child Witness) information appearing or being reported or
disseminated through said media which was
2. Editorial Privilege – Editors may not be related in confidence to the abovementioned
compelled to disclose the source of published media practitioners.
news; (R.A. No. 53, as amended by R.A. No. 1477)
XPN: Revelation can be compelled if the court
3. Voters may not be compelled to disclose for or the Congress or any of its committees finds
whom they voted; that such revelation is demanded by the
security of the State.
4. Information contained in Tax census returns
(Ibid.); NOTE: On the ground of public policy, the rules
providing for the production and inspection of
5. Bank deposits, except in certain cases provided books and papers do not authorize the production
for by law; (Sec. 2, R.A. No. 1405) or inspection of privileged matter; that is, books and
papers which, because of their confidential and
6. Information and statements made at privileged character, could not be received in
Conciliation proceedings; (Art. 233, Labor Code) evidence. Such a condition is in addition to the
requisite that the items be specifically described
7. Institutions covered by the law and its officers and must constitute or contain evidence material to
and employees who communicate a suspicious any matter involved in the action and which are in
transaction to the Anti-Money Laundering the party’s possession, custody or control. (Air
Council; (Sec. 6 of R.A. No. 9194 amending Sec. 9 Philippines Corporation v. Pennswell Inc., G.R. No.
of R.A. No. 9160) and 172835, 13 Dec. 2007)
8. Informer’s Privilege - The Prosecutor may not 3. ADMISSIONS AND CONFESSIONS

be compelled to present an informer to protect
his identity and when his testimony would be Admission
merely corroborative and cumulative. (Herrera,
1999) Any statement of fact made by a party against his
interest or unfavorable to the conclusion for which
NOTE: Human Security Act provides that the he contends or is inconsistent with the facts alleged
name and identity of the informant of on a by him.
suspect in the crime of terrorism shall be
considered confidential and shall not be
unnecessarily revealed until after the

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CLASSIFICATIONS OF ADMISSIONS Development Corp., G.R. No.

It is a positive statement or act. 149576, 08 Aug. 2006)
Express
Those made in definite, certain
and unequivocal language. Requisites for admissions to be admissible
It is one which may be inferred
from the declarations or acts of a 1. They must involve matters of fact and not of
Implied person. Therefore, an admission law;
may be implied from conduct, 2. They must be categorical and definite;
statement of silence of a party. 3. They must be knowingly and voluntarily made;
When made in the course of a and
Judicial judicial proceeding. 4. They must be adverse to the admitter’s
interests, otherwise it would be self-serving
When made out of court or even and inadmissible. (Regalado, 2008)
Extrajudicial in a proceeding other than the
one under consideration. Admissions vs. Confessions
It is a party’s reaction to a
statement or action by another ADMISSION CONFESSION
person when it is reasonable to A statement of fact A statement of fact
treat the party’s reaction as an which does not involve which involves an
admission of something stated an acknowledgment of acknowledgment of
or implied by the other person. A guilt or liability. guilt or liability.
third person’s statement May be made by third Can be made only by
becomes the admission of the persons and in certain the party himself and,
party embracing or espousing it. cases, are admissible in some instances, are
Adoptive admission may occur against a party. admissible against his
when a party: co-accused.
Applies to both
Applies only to
a. Expressly agrees to or criminal and civil
criminal cases.
concurs in an oral cases.
statement made by another; Must be express.
May be express or tacit.
(Regalado, 2008)
Adoptive b. Hears a statement and later
on essentially repeats it; NOTE: An admission, in general sense, includes
confessions, the former being a broader term
c. Utters an acceptance or because, accordingly, a confession is also an
builds upon the assertion of “admission… by the accused of the fact charged
another; against him or of some fact essential to the charge.”
(4 Wigmore, Sec. 1050) A confession is a specific
d. Replies by way of rebuttal type of admission which refers only to an
to some specific points acknowledgement of guilt. (Riano, 2019)
raised by another but
ignores further points Admission by a Party
which he or she has heard
the other make; or The act, declaration or omission of a party as to a
relevant fact may be given in evidence against him
e. Reads and signs a written or her. (Sec. 27, Rule 130, ROC, as amended)
statement made by another.
(Republic v. Kendrick

Evidence
Requisites for the admissibility of an admission for Rufina Patis Factory for 4 more years. Can
Rufina Patis Factory use A’s affidavit executed
1. The act, declaration or omission must have before the SSS as an admission against his
been made by a party or by one by whom he is interest?
legally bound;
2. The admission must be as to a relevant fact; and A: YES. The document is the best evidence which
3. The admission may only be given in evidence affords greater certainty of the facts in dispute.
against him. (Herrera, 1999) While the affidavit may have facilitated the release
of the retirement benefits from SSS, hence,
Self-Serving Declaration beneficial to him at that time, it may still be
considered as an admission against interest since
It is one which has been made extra-judicially by the the disserving quality of the admission is judged as
party to favor his interest. It is not admissible in of the time it is used or offered in evidence and not
evidence because they are inherently when such admission was made. Thus, it matters
untrustworthy and would open the door to fraud not that the admission was self-serving at the time
and fabrication of testimony. (Lichauco v. Atlantic it was made, so long as it is against A’s present claim.
Gulf and Pacific Co. of Manila, 84 Phil. 330) (Rufina Patis Factory v. Alusitain, G.R. No. 146202, 14
July 2004)
NOTE: Self-serving evidence are inadmissible
because the adverse party is not given the RES INTER ALIOS ACTA RULE
opportunity for cross-examination, and their
admission would encourage fabrication of Res inter alios acta alteri nocere non debet
testimony. (Hernandez v. CA, G.R. No. 104874, 14 Dec.
1993) This principle literally means “things done between
strangers ought not to injure those who are not
Statements in affidavits are not sufficient to prove parties to them.” (Dynamic Signmaker Outdoor
the existence of agricultural tenancy. It is self- Advertising Services, Inc. v. Potongan, G.R. No.
serving. It will not suffice to prove consent of the 156589, 27 June 2005)
owner. Independent evidence is necessary.
(Rodriguez v. Salvador, G.R. No. 171972, 08 June Reason for the Rule on Res inter alios acta
2011)
On the principle of good faith and mutual
An admission against interest is the best evidence convenience, a man’s own acts are binding upon
which affords the greatest certainty of the facts in himself and are evidence against him. So are his
dispute since no man would declare anything conduct and declarations. It would not only be
against himself unless such declaration is true. rightly inconvenient but also manifestly unjust, that
Thus, an admission against interest binds the a man should be bound by the acts of mere
person who makes the same, and absent any unauthorized strangers; and if a party ought not to
showing that this was made thru palpable mistake, be bound by the acts of strangers, neither ought
no amount of rationalization can offset it. (Stanley their acts or conduct be used as evidence against
Fine Furnitures, Elena and Carlos Wang v. Gallano, him. (People v. Guittap, G.R. No. 144621, 09 May
G.R. No. 190486, 26 Nov. 2014) 2003)
Q: After working as a laborer for 43 years, A Two branches of Res inter alios acta Rule
resigned from Rufina Patis Factory. Thereafter,
he availed of his pension from the SSS and 1. Admission by third party. The rights of a party
executed an affidavit stating that he was never cannot be prejudiced by an act, declaration, or
re-employed. However, when he filed a claim for omission of another (Sec. 29, Rule 130, ROC, as
retirement benefits from his employer before amended) (2003 BAR); and
the NLRC, he alleged that he continued working

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2. Similar Acts Rule. Evidence that one did or did XPN: The act or omission of one party made out of
not do a certain thing at one time is not court may be used as evidence against another
admissible to prove that he did or did not do the when its admission is made by:
same or similar thing at another time. (Sec. 35,
Rule 130, ROC, as amended) a. A partner, during the existence of the
partnership (Sec. 30, Rule 130, ROC, as
NOTE: The rule has reference to extrajudicial amended);
declarations. Hence, statements made in open court
by a witness implicating persons aside from him are b. An agent authorized by the party to make a
admissible as declarations from one who has statement concerning the subject or within the
personal knowledge of the facts testified to. (Riano, scope of his or her authority, during the
2019) existence of the agency (Ibid.);
The testimony of the accused against his co-accused c. A joint owner;

in open court is considered as admissible testimony d. A joint debtor;
and not subject of the res inter alios acta rule since e. A person jointly interested with the party;
such testimony is subject to cross examination. f. A conspirator; or
g. A privy or successor in interest (Suarez and De
Q: Mau sued Kenstar Travel Corporation for la Banda, 2006)
breach of contract on the ground that when she
went on a European tour, there was no European Q: Francisco was charged with violating PD No.
tour manager, the Filipino guide was a first 1612 or the Anti Fencing Decree. Among the
timer, and the hotels where they were billeted evidence submitted against him was the
were not first class. Kenstar contended that the testimony of Jovita in a previous criminal case
tour was satisfactory because out of 18 wherein the accused therein, Pacita, was
participants, only Mau actually complained. Can convicted of theft and where she stated that
the fact that the other participants in the tour Francisco bought stolen jewelries from her. Can
filed no case against Kenstar be used as evidence the admission in the previous case be used
to show that B has no cause of action? against Francisco?
A: NO. Sec. 28, Rule 130 of the Rules of Court A: NO. Francisco was not a party to the previous
provides that the rights of a party cannot be criminal case where Pacita was the accused. The
prejudiced by an act, declaration or omission of acts or declarations of a person are not admissible
another. The failure of the other participants to file against a third party. Only parties to a case are
and action should not prejudice Mau. (Geraldez v. bound by a judgment of the trial court. (Francisco v.
Court of Appeals, G.R. No. 108253, 23 Feb. 1994) People, G.R. No. 146584, 12 July 2004)
Admission by a Third Party Without presenting Jovita to testify on her

admission during the previous criminal case, even if
The rights of a party cannot be prejudiced by an act, made in a previous judicial proceeding, it remains
declaration, or omission of another. (Sec. 28, Rule an extrajudicial admission without any effect,
130, ROC, as amended) insofar as the present action against Francisco is
concerned.
GR: The act, declaration or omission made out of
court of a party as to a relevant fact may be given in Admission by a Co-Partner or Agent
evidence against him but may not be given in
evidence against another person. The act or declaration of a partner or agent
authorized by the party to make a statement
concerning the subject, or within the scope of his or
her authority and during the existence of the

Evidence
partnership or agency, may be given in evidence Q: The Republic of the Philippines filed a
against such party after the partnership or agency is forfeiture case against the heirs of the late
shown by evidence other than such act or former President Marcos. In one of her
declaration. The same rule applies to the act or manifestations before the Sandiganbayan,
declaration of a joint owner, joint debtor, or other Imelda Marcos admitted that she owned 90% of
person jointly interested with the party. (Sec. 30, the Swiss bank deposits and only 10% belongs
Rule 130, ROC, as amended) to the estate of the late President Marcos. The
other heirs also made separate admissions in
Requisites for an Admission of a Partner to bind their pleadings. What is the value of these
his Co-Partners or for an Agent to bind his admissions?
Principal
A: The individual and separate admissions of each
1. The act or declaration of a partner or agent of respondent bind all of them pursuant to Sec. 29
the party must be within the scope of his (now Sec. 30), Rule 130 of the Rules of Court. The
authority; declaration of a party is admissible against a party
whenever a “privity of estate” exists between the
2. The admission was made during the existence declarant and the party. It generally denotes a
of the partnership or agency; and succession of rights. Without doubt, privity exists
among the respondents in this case. Where several
3. The existence of the partnership or agency is co-parties exist, who are jointly interested in the
proven by independent evidence other than subject matter of the controversy, the admission of
such act or declaration. The Articles of one is competent against all. (Republic v.
Incorporation or a Special Power of Attorney Sandiganbayan, G.R. No. 152154, 15 July 2003)
may be presented for such purpose. (Suarez and
De la Banda, 2000) Admission by a Conspirator
NOTE: Any declaration made before the The act or declaration of a conspirator in
partnership or agency existed, or those made after, furtherance of the conspiracy and during its
are not admissible against the other partners or existence may be given in evidence against the co-
principal but remains admissible as against the conspirator after the conspiracy is shown by
partner or agent making the declaration. (Riano, evidence other than such act or declaration. (Sec. 31,
2019) Rule 130, ROC, as amended)
The same rule applies to an act or declaration of a Conspiracy

joint owner, joint debtor or other person jointly
interested with the party. (Sec. 29, Rule 130, ROC, as A conspiracy exists when two or more persons come
amended) to an agreement concerning the commission of a
felony and decide to commit it. (Herrera, 1999)
Dissolved Partnership
NOTE: Once conspiracy is proven, the act of one is
GR: Admissions made after a partnership has been the act of all. The statement therefore of one may be
dissolved do not fall within the exception because admitted against the other co-conspirators as an
such are made when the partnership ceased to exist. exception to the rule of res inter alios acta. (Riano,
2019)
XPN: Where the admissions are made in connection
with the winding up of the partnership affairs, said Requisites of an Admission by a Conspirator
admissions are still admissible as the partner is
acting as an agent of his co-partner in said winding a. The declaration or act be made or done during
up. (Regalado, 2008) the existence of the conspiracy;

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b. The declaration or act must be in furtherance of When extrajudicial admission becomes a

the purpose and object of the conspiracy; and judicial admission
c. The conspiracy must be shown by evidence
other than the declaration or act (evidence While it is true that statements made by a
aliunde). (Sec. 31, Rule 130, ROC, as amended) conspirator against a co-conspirator are admissible
only when made during the existence of the
NOTE: This rule applies only to extrajudicial acts or conspiracy, if the declarant repeats the statement in
admission and not to testimony at trial where the court, his extrajudicial confession becomes a
party adversely affected has the opportunity to judicial admission, making the testimony
cross-examine the witness. (People v. Baharan, G.R. admissible as to both conspirators. (People v.
No. L-188314, 10 Jan. 2011) Baharan, G.R. No. 188314, 10 Jan. 2011)
Q: A was convicted of robbery with homicide. Admission by Privies

Among the evidence used to convict her was the
extrajudicial confession of her co-accused, an Where one derives title to property from another,
alleged co-conspirator, which confession was the latter’s act, declaration, or omission of the latter,
made with the assistance of counsel. Can such while holding the title, in relation to the property, is
admission be used against A? evidence against the former if done while the latter
was holding the title. (Sec. 32, Rule 130, ROC, as
A: NO. In order for such admission to be admissible amended)
in evidence, there must be independent evidence
aside from the extrajudicial confession to prove Privies
conspiracy. There being no independent evidence to
prove conspiracy, A’s culpability was not Persons who are partakers or have an interest in
sufficiently established. (People v. Guittap, G.R. No. any action or thing, or any relation to another.
144621, 09 May 2003) (Black’s Law Dictionary, 5th Ed.)
Extrajudicial Admissions made After the The declarations of a person are admissible against
Conspiracy had Terminated a party whenever a "privity of estate" exists
between the declarant and the party, the term
GR: Extrajudicial admissions made by a conspirator "privity of estate" generally denoting a succession
after the conspiracy had terminated and even in rights. Consequently, an admission of one in
before trial are not admissible against the co- privity with a party to the record is
conspirator. competent. Without doubt, privity exists among the
respondents in this case. And where several co-
XPNs: parties to the record are jointly interested in the
1. If made in the presence of the co-conspirator subject matter of the controversy, the admission of
who expressly or impliedly agreed therein; one is competent against all. (Republic v.
Sandiganbayan, Ferdinand E. Marcos, and Imelda
2. Where the facts in said admission are confirmed Romualdez Marcos, G.R. No. 152154, 15 July 2003)
in the individual extrajudicial confessions made
by the co-conspirator after their apprehension; Requisites of an Admission by Privies
3. As a circumstance to determine the credibility 1. There must be an act, declaration, or omission

of the witness; or by a predecessor-in-interest;
2. The act, declaration, or omission of the
4. As circumstantial evidence to show the predecessor must have occurred while he was
probability of the co-conspirator’s participation holding (not after) the title to the property; and
in the offense. (Regalado, 2008)

Evidence
3. The act, declaration, or omission must be in NOTE: The silence of a person under investigation
relation to the property. (Sec. 32, Rule 130, ROC, for the commission of an offense should not be
as amended; Riano 2016) construed as an admission by silence because a
person has the right to remain silent and to be
Q: Del Monte Development Corporation filed a informed of that right. (Sec. 12, Art. III, 1987
case to be adjudged owner of a piece of land Constitution; Riano, 2019)
against Ababa claiming that it acquired a lot
from Lucero in 1964. As a defense, Ababa However, if it is not the police investigators who
presented a document executed by Lucero in confronted the accused but the owner of a
1968 to settle the controversy. Can the carnapped vehicle, the silence of one after being
document bind Del Monte as successor in implicated by the other accused serves as an
interest of Lucero? admission by silence as he did not refute the
statements of his co-accused despite having heard
A: NO. The admission of a former owner of a of them. (People v. Garcia, Jr., G.R. No. 138470, 01 Apr.
property must have been made while he was the 2003)
owner thereof in order that such admission may be
binding upon the present owner. Hence, Lucero’s Q: Pogi was brought to the police station for
act of executing the 1968 document have no binding investigation on the alleged rape of Ganda.
effect on Del Monte, the ownership of the land While in the police station, Ganda pointed to
having passed to it in 1964. (Gevero v. IAC, G.R. No. Pogi and said, “He’s the one who raped me.” Pogi
77029, 30 Aug. 1990) remained silent. May Pogi’s silence be offered in
evidence as an implied admission of guilt?
Admission by Silence
A: NO. The rule on admission by silence does not
There is admission by silence when a party does or apply since Pogi had a right to remain silent while
says nothing when he hears or observes an act or under custodial investigation. (Riguera, 2020)
declaration made in his presence when such act or
declaration is such as naturally to call for action or Principle of Adoptive Admission
comment if not true, and when proper and possible
for him or her to do so. Such may be given in It is a party’s reaction to a statement or action by
evidence against him or her. (Sec. 33, Rule 130, ROC, another person when it is reasonable to treat the
as amended) party’s reaction as an admission of something stated
or implied by the other person. The basis for the
Requisites of an Admission by Silence admissibility of admissions made vicariously is that
arising from the ratification or adoption by the party
1. The party heard and understood the statement; of the statements which the other person had made.
(Estrada v. Desierto, G.R. Nos. 146710-15, 3 Apr.
2. He or she was at a liberty to make a denial; 2001)
3. The statement was about a matter affecting his Illustration: The alleged admissions made by
or her rights or in which he or she was President Estrada when his options had dwindled
interested and which naturally calls for a when, according to the Angara Diary, the Armed
response; Forces withdrew its support from him as President
and Commander-in-Chief. Thus, Angara had to
4. The facts were within his or her knowledge; and allegedly ask Senate President Pimentel to advise
Estrada to consider the option of “dignified exit or
5. The fact admitted from his or her silence is resignation.” Estrada did not object to the suggested
material to the issue. (Riano, 2019) option but simply said he could never leave the
country. According to the court, his silence on this

e

Remedial Law
and other related suggestions can be taken as or priest or minister of the gospel as chosen by
adoptive admissions by him. (Ibid.) him or her. (Sec. 2(d), R.A. No. 7438)
CONFESSIONS CLASSIFICATION OF CONFESSIONS

One made by the accused before
The declaration of an accused acknowledging his an open court in which the case
guilt of the offense charged, or of any offense is pending and in the course of
necessarily included therein, may be given in Judicial legal proceedings therein and, by
evidence against him or her. (Sec. 34, Rule 130, ROC, confession itself, can sustain conviction and
as amended) is admissible against one’s co-
accused. It is governed by Secs. 1,
Requisites for the admissibility of a confession 3 & 4 of Rule 116.
One made in any other place or
1. It must involve an express and categorical occasion other than the court
acknowledgement of guilt (U.S. v. Corrales, 28 where the case is pending and
Phil. 362); cannot sustain a conviction
unless corroborated by evidence
2. Facts admitted must be constitutive of a of corpus delicti. It is generally
criminal offense (U.S. v. Flores, 26 Phil. 262); binding only upon the confessant
and is not admissible against his
3. It must have been given voluntarily (People v. Extrajudicial co-accused. It is governed by Sec.
Nishishima, 57 Phil. 26); confession 33 of Rule 130. (Regalado, 2008)
4. It must have been intelligently made (Bilaan v. NOTE: If the accused admits
Cusi, G.R. No. L-18179, 29 June 1962), the having committed the act in
accused realizing the importance or legal question but alleges a
significance of his act (U.S. v. Agatea, 40 Phil. justification therefor, such as
596); absence of criminal intent, the
same is merely an admission.
5. There must have been no violation of Sec. 12, (Ibid.)
Art. III, 1987 Constitution (Regalado, 2008); and
Admissibility of Extrajudicial Confessions
NOTE: A confession to a person, who is not a
police officer, is admissible in evidence. The GR: An extrajudicial confession is not admissible
declaration acknowledging his guilt of the against the confessor’s co-accused. Said confession
offense charged, or of any offense necessarily is hearsay evidence and violative of the res inter
included therein, may be given in evidence alios acta rule.
against the declarant. Such admissions are not
covered by Secs. 12 (1) and (3), Article III, 1987 XPN: It may be admitted in evidence against his co-
Constitution, because they were not extracted accused in the following cases:
while he or she was under custodial
investigation. (People v. Davao, et al., G.R. No. 1. In case of implied acquiescence of the co-
174660, 30 May 2011) accused to the extrajudicial confession;
6. It must be in writing and signed by such person 2. In case of interlocking confessions;

in the presence of his counsel or in the latter’s
absence, upon a valid waiver and in the 3. Where the accused admitted the facts stated by
presence of any of the parents, elder brothers the confessant after being apprised of such
and sisters, his spouse, the municipal mayor, confession;
the municipal judge, district school supervisor

Evidence
4. If they are charged as co-conspirators of the Requirements for an admission of guilt of an

crime which was confessed by one of the accused during a custodial investigation to be
accused and said confession is used only as admitted in evidence
corroborating evidence;
1. The admission must be voluntary (Sec. 12(1),
5. Where the confession is used as circumstantial 1987 Constitution);
evidence to show the probability of 2. The admission must be in writing (R.A. No.
participation by the co-conspirator; 7438);
3. The admission must be made with the
6. When the confessant testified for his co- assistance of competent, independent counsel
defendant; and (Sec. 12, 1987 Constitution);
4. The admission must be express (People v.
7. Where the co-conspirator’s extrajudicial Prinsipe, G.R. No. 135862, 02 May 2002); and
confession is corroborated by other evidence 5. In case the accused waives his rights to silence
on record. (Regalado, 2008) and to counsel, such waiver must be in writing,
executed with the assistance of competent,
Q: The mutilated cadaver of a woman was independent counsel. (R.A. No. 7438)
discovered near a creek. Due to witnesses
attesting that he was the last person seen with Doctrine of Interlocking Confessions
the woman when she was still alive, Carlito was
arrested within 5 hours after the discovery of It states that extrajudicial confessions
the cadaver and brought to the police station. independently made without collusion which are
The crime laboratory determined that the identical with each other in their essential details
woman had been raped. While in police custody, and corroborated by other evidence against the
Carlito broke down in the presence of an persons implicated, are admissible to show the
assisting counsel and orally confessed to the probability of the latter’s actual participation in the
investigator that he had raped and killed the commission of the crime. (People v. Mulit, G.R. No.
woman, detailing the acts he had performed up 181043, 08 Oct. 2008)
to his dumping of the body near the creek. He
was genuinely remorseful. During the trial, the Q: May an extrajudicial confession made by an
State presented the investigator to testify the accused be sufficient ground for conviction
oral confession of Carlito. Is the oral confession
admissible as evidence of guilt? (2008 Bar) A: NO, unless it is corroborated by evidence of
corpus delicti. (Riguera, 2020)
A: NO. The oral confession is not admissible as
evidence of guilt. The confession is in the nature of 4. PREVIOUS CONDUCT AS EVIDENCE
an extrajudicial confession before an investigator
while under custodial investigation. Hence, the Similar Acts as Evidence
statutory provisions under R.A. No. 7438 (Sec. 2(d))
will have to be complied with. GR: Evidence that one did or did not do a certain
thing at one time is not admissible to prove that he
Under said law, any extrajudicial confession made or she did or did not do the same or similar thing at
by a person arrested, detained, or under custodial another time. (Sec. 35, Rule 130, ROC, as amended)
investigation shall be in writing and signed by such This is also referred to as the “Propensity Rule.”
person in the presence of his counsel. An oral (2002 Bar)
confession does not comply with the mandatory
provisions of the law. Under R.A. No. 7438, the NOTE: This provision constitutes as the second
confession is inadmissible in evidence in any branch of the res inter alios acta rule as previously
proceeding. (Sec. 2(d), R.A. No. 7438) mentioned.

e

Remedial Law
XPNs: Evidence of similar or previous acts may be to act in a given manner but rather conduct that is
received to prove the following: semi-automatic in nature. In determining whether
(S-K-I-P-S – S-C-H-U-L) the examples are numerous enough and sufficiently
regular, the key criteria are adequacy of sampling
1. Specific intent; and uniformity of response.
2. Knowledge;
3. Identity; Here the defendants did not introduce evidence that
4. Plan; XEI and all the lot buyers in the subdivision had
5. System; executed contracts of sale containing uniform terms
6. Scheme; and conditions. Moreover, even in the 3 contracts
7. Custom; adduced by the defendants, there was no uniformity
8. Habit; as two referred to 120-month terms while the third
9. Usage; and mentioned a 180-month term. (Boston Bank v.
10. The Like (Ibid.) Manalo, G.R. No. 158149, 09 Feb. 2006).
Purpose of the Rule Admissibility of Offers of Compromise
Evidence of similar acts or occurrences compels the CIVIL CASE CRIMINAL CASE
defendant to meet allegations that are not GR: It is NOT an GR: It may be received in
mentioned in the complaint, confuses him in his admission of any evidence as an implied
defense, raises a variety of relevant issues, and liability and is NOT admission of guilt.
diverts the attention of the court from the issues admissible against
immediately before it. Hence, the evidentiary rule the offeror. XPNs:
guards the practical inconvenience of trying 1. In quasi-offenses
collateral issues and protracting the trial, and Neither is evidence where there is no
prevents surprise or other mischief prejudicial to of conduct nor criminal intent
litigants. (Cruz v. CA, G.R. No. 126713, 27 July 1998) statements made in (negligence), such as
compromise reckless imprudence;
Q: The defendants argued that Xavierville Estate negotiations 2. In criminal cases
Inc. (XEI) had allowed them to pay the balance of admissible. allowed by law to be
the purchase of a subdivision lot in 120 monthly compromised such
installments. The defendants introduced three XPN: Evidence as:
contracts to sell in which XEI granted two lot otherwise a. Sec. 7(c), National
buyers a 120-month term of payment and a discoverable or Internal Revenue
third one a 180-month term. May these three offered for another Code – The CIR
contracts to sell prove a habit or custom on the purpose, such as has the power to
part of XEI to grant 120-month terms of proving bias or compromise
payments to it buyers? prejudice of a minor criminal
witness, negativing a violations as may
A: NO. Under Sec. 35, Rule 130, evidence that one contention of undue be determined by
did or did not do a certain thing at one time is not delay, or proving an the Secretary of
admissible to prove that he did or did not do the effort to obstruct a Finance;
same or a similar thing at another time; but it may criminal b. Sec. 408, Local
be received to prove usage, habit or custom. investigation or Government Code
prosecution. – Allowed in
Courts must contend with the caveat that before (Sec. 28, Rule 130, minor offenses
they admit evidence of usage, habit or pattern or ROC, as amended) whose penalties
conduct, the offering party must establish the do not exceed one
degree of specificity and frequency of uniform year;
response that ensures more than a mere tendency

Evidence
c. Art. 266-C, filing of the criminal case against Lloydie for

Revised Penal serious physical injuries through reckless
Code – In cases of imprudence, Lloydie’s insurance carrier offered
marital rape, to pay for the injuries and damages suffered by
where Bea. The offer was rejected because Bea
subsequent considered the amount offered as inadequate.
forgiveness by
the wife a. Is the offer by Lloydie to pay the
extinguishes the hospitalization expenses of Bea admissible
criminal action or in evidence?
penalty. (Suarez
and De la Banda, b. Is the offer by Lloydie’s insurance carrier to
2006) pay for the injuries and damages of Bea
admissible in evidence? (1997 BAR)
NOTE: No compromise is valid in the following
cases: A:
a. NO. It is not admissible in evidence to prove his
1. Civil status of persons; guilt in both the civil and criminal cases. (Sec.
2. Validity of a marriage or legal separation; 28, Rule 130, ROC, as amended)
3. Any ground for legal separation;
4. Future support; b. NO. It is irrelevant. The obligation of the
5. Jurisdiction of courts; insurance company is based on the contract of
6. Future legitime; insurance and is not admissible in evidence
7. Habeas corpus; and against the accused because it was not offered
8. Election cases (Herrera, 1999) by the accused but by the insurance company
which is not his agent.
Q: What is the underlying reason for the
adoption of the rule against the admission of an Admissibility of Plea or Offer (2008 BAR)
offer of compromise in civil cases? (1997 BAR)
OFFER OR PLEA ADMISSIBILITY
A: It is for the reason that parties are encouraged to Plea of guilty later Not admissible in
enter into compromises. Courts should endeavor to withdrawn by the evidence against the
persuade the litigants in a civil case to agree upon accused accused who made the
some fair compromise. (Art. 2029, NCC) During pre- plea
trial, courts should direct the parties to consider the Offer by the accused to Not admissible in
possibility of an amicable settlement. (Sec. 2(a), Rule plead guilty to a lesser evidence against the
18, ROC, as amended) offense but unaccepted accused who made the
by prosecution offer
Q: Berting was accused of having raped Lisa. Offer to pay or Not admissible in
Rule on the admissibility of an offer of Berting to payment of medical, evidence as proof of
marry Lisa. (1998 BAR) hospital or other civil or criminal
expenses occasioned liability for the injury.
A: Berting’s offer to marry Lisa is admissible in by injury (Good (Suarez and De la
evidence as an implied admission of guilt because Samaritan Rule) Banda, Evidence: A
rape cases are not allowed to be compromised. (Sec. Lawyer’s Companion,
28, Rule 130 ROC, as amended) 2006 ed.)
Statement made in the Not admissible against
Q: Lloydie, while driving his car, ran over Bea. course of plea the accused who made
Lloydie visited Bea at the hospital and offered to bargaining with the the statement (Sec. 28,
pay for her hospitalization expenses. After the

e

Remedial Law
prosecution, which Rule 130, ROC, as 6. HEARSAY AND EXCEPTIONS TO THE

does not result in a amended) HEARSAY RULE
plea of guilty or which
results in a plea of Meaning of Hearsay
guilty later withdrawn
Hearsay is a statement other than one made by the
Good Samaritan Rule declarant while testifying at a trial or hearing,
offered to prove the truth of the facts asserted
An offer to pay or the payment of medical, hospital therein. (Sec. 37, Rule 130, ROC, as amended)
and other expenses occasioned by an injury is not
admissible in evidence as proof of civil and criminal The hearsay statement may be:
liability for the injury.
1. An oral or written assertion; or
RATIO: Humanitarian acts or charitable responses 2. A non-verbal conduct of a person if it is
should be encouraged and rewarded instead of intended by him or her as an assertion. (ibid)
being discouraged or penalized. (Regalado, 2008)
Q: In a police lineup, victim from behind a one-
Unaccepted offer way mirror points to the accused as the one who
assaulted him. The victim dies before trial.
An offer in writing to pay a particular sum of money During the trial, the police officer conducting the
or to deliver a written instrument or specific lineup is asked who the victim pointed to as the
personal property is, if rejected without valid cause, culprit. May the defense object and if so, on what
equivalent to the actual production and tender of grounds?
the money, instrument, or property. (Sec. 36, Rule
130, ROC, as amended) A: YES, the defense may object on the ground of
hearsay. An out-of-court statement includes not
5. TESTIMONIAL KNOWLEDGE only oral or written assertions but also non-verbal
conduct intended as an assertion. The victim’s act of
A witness can testify only to those facts which he or pointing out a person in the lineup is a nonverbal
she knows of his or her personal knowledge; that is, assertion. It is as if the victim was saying, “He’s the
which are derived from his or her own perception. one who assaulted me.” The proponent may try to t
(Sec. 23, Rule 130, ROC) the identification under the excited-utterance
exception. (Riguera, 2020)
The personal knowledge of a witness is a
substantive prerequisite for accepting testimonial When a Statement is NOT Considered as Hearsay
evidence that establishes the truth of a disputed
fact. A witness bereft of personal knowledge of the A statement is not hearsay if the declarant testifies
disputed fact cannot be called upon for that purpose at the trial or hearing and is subject to cross-
because her testimony derives its value not from the examination concerning the statement, and the
credit accorded to her as a witness presently statement is:
testifying but from the veracity and competency of
the extra judicial source of her information. (People a. Prior inconsistent statement under oath -
of the Philippines v. Estibal, G.R. No. 208749, 26 Nov. Inconsistent with the declarant’s testimony,
2014) and was given under oath subject to the penalty
of perjury at a trial, hearing, or other
proceeding, or in a deposition;
b. Prior consistent statement - Consistent with

the declarant’s testimony and is offered to rebut
an express or implied charge against the

Evidence
declarant of recent fabrication or improper categorical in proving its negligence or that of its
influence or motive; or employee; rather, these only proved that the
driver of the insured vehicle was at fault. Is
c. Prior statement of identification - One of Hearsay Rule under the Amended Rules of
identification of a person made after perceiving Evidence applicable?
him or her. (Par. 2, Sec. 37, Rule 130, ROC, as
amended) A: NO. At the time when UCPB filed its complaint
before the MeTC on December 21, 2009, the
NOTE: Newspaper clippings are hearsay and of no prevailing Rules on Evidence was the Rules adopted
evidentiary value at all whether objected to or not, on March 14, 1989, under which Sec. 36, Rule 130,
unless offered for a purpose other than proving the governed the appreciation of hearsay evidence. The
truth of the matter asserted. (Feria v. CA, G.R. No. principle of retroactivity of procedural rules cannot
122954, 15 Feb. 2000) be applied. The Traffic Accident Report serves as the
anchor by which liability for negligence is claimed
Medical certificates cannot be admitted in the by UCPB. To adopt the amended Rules would affect
absence of the testimony of the physician who the manner by which the Traffic Accident Report
examined the complaint for alleged torture wounds. was appreciated, which could be used as basis for
re-examination to determine its admissibility in
Affidavits are inadmissible unless the affiants evidence. This will result into a violation of due
themselves are placed in the witness stand to testify process, which will ultimately cause injustice on the
therefrom. part of the respondent who relied on the Rules then
existing. As such, we shall continue to be guided by
Q: UCPB General Insurance Co., Inc. issued the superseded provisions of the Rules of Court.
Comprehensive Car Insurance Policy to Rommel (UCPB General Insurance, Co. v Pascual Liner, Inc.,
Lojo. On December 09, 2005, at around 3:30 G.R. 242328, 26 Apr. 2021)
p.m., the insured vehicle was bumped at the rear
portion by Pascual Liner, Inc.'s bus driven by Statements made through an Interpreter
Leopoldo Cadavido. As a result of the impact, the
insured vehicle was pushed forward, causing it GR: Statements made through an interpreter are
to hit another vehicle, an aluminum van driven considered hearsay if a witness is offered to testify
by Nilo Nuñez. The vehicular accident was to the statements of another person, spoken in a
investigated by the Traffic Management and language not understood by him, but translated for
Security Department of the PNCC Skyway him by an interpreter, such witness is not qualified,
Corporation, for which Solomon Tatlonghari because he does not speak from personal
prepared a Traffic Accident Sketch. Thereafter, knowledge. All that he can know as to the testimony
the matter was endorsed to the PNP, for which is from the interpretation thereof which is in fact
PO3 Joselito Quila prepared a Traffic Accident given by another person.
Report. Lojo filed a claim with UCPB under his
insurance policy, which was approved by UCPB. XPNs: In cases where the interpreter had been
Thereafter, UCPB filed a Complaint for sum of selected:
money for P350,000.00 before the RTC, which
was subsequently transferred to MeTC, against 1. By common consent of the parties endeavoring
Pascual Liner and Cadavido alleging that as a to converse; or
result of Lojo's receipt of the insurance 2. By a party against whom the statements of the
indemnity it paid arising from the damage interpreter where offered in evidence
caused on the insured vehicle, it was subrogated (Principal-Agent Rule).
to the rights of Lojo. Pascual Liner filed its
Answer (with Affirmative Defense), denying
allegations. It asserted that the Traffic Accident
Report and the Traffic Accident Sketch were not

e

Remedial Law
Reasons for Exclusion of Hearsay Evidence The witness purports

to give the facts
a. The lack of opportunity on the part of the party The witness purports directly upon his own
against which it is offered to cross-examine to give an account of credit (though it may
the declarant, that is, the person who made the what another has told appear later that he
statement. him and this is offered was speaking only on
b. The statement or declaration under oath. to evidence the truth of the faith of report from
c. The court does not have the opportunity to the other’s report. others. (Rules
observe the demeanor of the declarant. Committee Notes, citing
(Riguera, 2020) McCormick)
Has no formal
In criminal cases, its admission would be a violation Subject to certain exceptions. (Rules
of the constitutional provision that the accused shall exceptions. Committee Notes, citing
enjoy the right of being confronted with the Lempert & Saltzbur)
witnesses testifying against him and to cross-
examine them. Moreover, the court is without Q: Romeo is sued for damages for injuries
opportunity to test the credibility of hearsay suffered by the plaintiff in a vehicular accident.
statements by observing the demeanor of the Julieta, a witness in court, testifies that Romeo
person who made them. (People v. Pruna, G.R. No. told her that he heard Antonio, a witness to the
138471, 10 Oct. 2002) accident, gives an excited account of the
accident immediately after its occurrence. Is
Evidence not based on personal knowledge Julieta’s testimony admissible against Romeo
(Lack of first-hand knowledge rule) vs. Hearsay over proper and timely objection? Why? (2002
Evidence BAR)
A witness can testify only to those facts which he or A: NO, because the testimony is hearsay. In her
she knows of his or her personal knowledge; that is, testimony, Julieta purports to give an account of
which are derived from his or her own perception. what Romeo had told her. In effect, she is testifying
(Sec. 22, Rule 130, ROC, as amended) to nothing more than her statement, and not the
truth of the facts asserted therein.
If it can be shown from the surrounding
circumstances that a hearsay declarant lacked Exceptions to the Hearsay Rule (1999 BAR)
firsthand knowledge of the subject of his
declaration, evidence of that declaration will 1. Dying declaration (Sec. 38, Rule 130, ROC, as
ordinarily be excluded even if it would otherwise amended);
come within some exception to the hearsay rule. 2. Statement of decedent or person of unsound
(Rules Committee Notes, citing Lempert & Saltzbur) mind (Sec. 39, Rule 130, ROC, as amended)
3. Declaration against interest (Sec. 40, Rule 130,
LACK OF FIRST- ROC, as amended);
HEARSAY RULE HAND KNOWLEDGE 4. Act or declaration about pedigree (Sec. 41, Rule
RULE 130, ROC, as amended);
A statement other than 5. Family reputation or tradition regarding
one made by the pedigree (Sec. 42, Rule 130, ROC, as amended);
Consists of testimony
declarant while 6. Common reputation (Sec. 43, Rule 130, ROC, as
that is not based on
testifying at a trial or amended);
personal knowledge of
hearing, offered to 7. Part of res gestae (Sec. 44, Rule 130, ROC, as
the person testifying.
prove the truth of the amended);
facts asserted therein. 8. Records of regularly conducted business
activity (Sec. 45, Rule 130, ROC, as amended);

Evidence
9. Entries in official records (Sec. 46, Rule 130, Requisites for the admissibility of a dying
ROC, as amended); declaration
10. Commercial lists and the like (Sec. 47, Rule 130,
ROC, as amended); 1. The declaration concerns the cause and the
11. Learned treatises. (Sec. 48, Rule 130, ROC, as surrounding circumstances of the declarant’s
amended); death;
12. Testimony or deposition at a former proceeding
(Sec. 49, Rule 130, ROC, as amended); and 2. It is made when death appears to be imminent
13. Residual exception (Sec. 50, Rule 130, ROC, as and the declarant is under consciousness of an
amended) impending death;
NOTE: The exceptions are hearsay but they are 3. The declarant would have been competent to
deemed admissible by reason of necessity and testify had he or she survived; and
trustworthiness (Riano, 2019).
4. The dying declaration is offered in a case in
Reason for Admissibility which the subject inquiry involves the
declarant’s death. (People of the Philippines v.
They are admissible by reason of relevancy, Gatarin, G.R. No. 198022, 7 Apr. 2014)
necessity and trustworthiness. (Estrada v. Desierto,
supra) NOTE: In order to make a dying declaration
admissible, a fixed belief in inevitable and imminent
DYING DECLARATION death must be entered by the declarant. It is the
(Sec. 38, Rule 130) belief in impending death and not the rapid
succession of death in point of fact that renders a
The declaration of a dying person, made under the dying declaration admissible. (People of the
consciousness of an impending death, may be Philippines v. Quiasayas, G.R. No. 198022, 7 Apr.
received in any case wherein his death is the subject 2014)
of inquiry, as evidence of the cause and surrounding
circumstances of such death. (Sec. 38, Rule 130, ROC, Test to determine the Application of the Rule on
as amended) (1991, 1992, 1993, 1996, 1998, Dying Declaration
1999, 2007, 2010, 2017 BAR)
Whether the declarant has abandoned all hopes of
These are ante mortem statements made by a survival and looked on death as certainly
person after the mortal wound has been inflicted impending. (Ibid.)
under the belief that the death is certain, stating the
fact concerning the cause of and the circumstances Time Interval
surrounding the attack. (Herrera, 1999)
GR: The intervening time from the making of a dying
NOTE: Where the elements of both a dying declaration up to the time of death is immaterial in
declaration and a statement as part of the res gestae its admissibility, as long as it was made under the
are present, the statement may be admitted as a consciousness of impending death.
dying declaration and at the same time as part of res
gestae. (People v. Gado, G.R. No. 129556, 11 Nov. XPNs:
1998) 1. If there is retraction made by the declarant
before he died; or
2. His declaration is ambiguous as to whether he
believed that his death was imminent when he
made such declaration. (Regalado, 2008)

e

Remedial Law
It is of no moment that the victim died seven days without the necessity of reproducing the word of
from the stabbing incident and after receiving the decedent, if he is able to give the substance
adequate care and treatment, because the apparent thereof. An unsigned dying declaration may be used
proximate cause of his death was a consequence of as a memorandum by the witness who took it down.
the stabbing. (People of the Philippines v. Rarugal, (People v. Boller, G.R. Nos. 144222-24, 03 Apr. 2002)
G.R. No. 188603, 16 Jan. 2013)
Q: Zapanta, while watching television, heard 4
Factors in Determining whether the Declarant is successive gunshots. When Zapanta looked
Conscious of his Impending Death through the open door, he saw 2 men armed
with .38 caliber revolvers standing a meter away
1. The words or statements of the declarant on the from Borre. He saw Palanas deliver the fourth
same occasion; shot but he could not identify the other shooter.
2. His conduct at the time the declaration was On the way to the hospital, Borre told Zapanta
made; and that it was "Abe", "Aspog" or "Abe Palanas", his
3. The serious nature of his wounds as would neighbor, who shot him. This statement was
necessarily engender a belief on his part that he repeated to Borre’s wife, Resurreccion, who
would not survive therefrom. (Regalado, 2008) followed him at the hospital. For his part,
Palanas interposed the defense of denial and
NOTE: The dying declaration of the deceased is not alibi. He claimed that on the day before the
admissible as an ante-mortem declaration when the incident, he was in Parañaque City attending to
deceased was in doubt as to whether he would die the needs of his sick father. On the next day, he
or not. It may, however, be admitted as part of res went to Tondo, Manila for a baptism and stayed
gestae when it is made immediate after a startling there from morning until 9:00 p.m., after which
occurrence. (People of the Philippines v. Laquinon, he returned to his father in Parañaque City. He
G.R. No. L-45470, 28 Feb. 1985) maintained that he was not aware of the death of
Borre until he was informed by a neighbor that
Q: Sam was charged with robbery and homicide. Resurreccion was accusing him of killing her
Kitchie, the victim, suffered several stab husband.
wounds. It appears that 11 hours after the crime,
while Kitchie was being brought to the hospital Can Borre’s statements on his way to the
in a jeep, with his brother and a policeman as hospital be considered a dying declaration and
companions, Kitchie was asked certain part of the res gestae?
questions which she answered, pointing to Sam
as her assailant. Her answers were put down in A: YES. Borre’s statements constitute a dying
writing, but since she was in a critical condition, declaration as they pertained to the cause and
her brother and the policeman signed the circumstances of his death. Moreover, taking into
statement. Is the statement admissible as a consideration the number and severity of his
dying declaration? Explain. (1999 BAR) wounds, it may be reasonably presumed that he
uttered the same under a fixed belief that his own
A: YES. The statement is admissible as a dying death was already imminent.
declaration if the victim subsequently died and her
answers were made under the consciousness of an In the same vein, Borre’s statements may likewise
impending death. The fact that she did not sign the be deemed to form part of the res gestae as they
statement pointing to the accused as her assailant refer to a startling occurrence, i.e., him being shot.
because she was in a critical condition does not While on his way to the hospital, Borre had no time
affect its admissibility as a dying declaration. to contrive the identification of his assailants, thus,
(People v. Viovicente, G.R. No. 118707, 02 Feb. 1998) his utterance was made in spontaneity and only in
reaction to the startling occurrence. (People v.
NOTE: A dying declaration may be oral or written. If Palanas, G.R. No. 214453, 17 June 2015)
oral, the witness who heard it may testify thereto

Evidence
Assailing a Dying Declaration DECLARATION AGAINST INTEREST

(Sec. 40, Rule 130)
The declaration may be attacked in the same
manner as one would do a testimony in open court. The declaration made by a person deceased or
The declarant himself may be impeached through unable to testify against the interest of the
the normal methods provided for under the rules. A declarant, if the fact asserted in the declaration was
dying declaration, as an exception to the hearsay at the time it was made so far contrary to the
rule, is not meant to confer competency on an declarant’s own interest that a reasonable person in
otherwise incompetent witness. his or her position would not have made the
declaration unless he or she believed it to be true
STATEMENT OF DECEDENT OR A PERSON OF may be received in evidence against himself or
UNSOUND MIND herself or his or her successors in interest and
(Sec. 39, Rule 130) against third persons.
Requisites: A statement tending to expose the declarant to

criminal liability and offered t exculpate the accused
1. There is an action against an executor or is not admissible unless corroborating
administrator or another representative of a circumstances clearly indicate the trustworthiness
deceased person, or against a person of of the statement. (Sec. 40, Rule 130, ROC, as
unsound mind; amended)
2. The action is upon a claim or demand against NOTE: A statement against interest tending to
the estate of such deceased person or against expose the declarant to criminal liability and offered
such person of unsound mind; to exculpate the accused (which is presumably
different from the declarant) is not admissible
3. A party or assignor of a party or a person in unless corroborating circumstances clearly indicate
whose behalf a case is prosecuted testifies on a trustworthiness of the statement.
matter of fact occurring before the death of the
deceased person or before the person became These are ante litem motam statements made by a
of unsound mind.; person who is neither a party nor in privity with a
party to the suit. Such are considered secondary
4. There was a statement made by the deceased or evidence and admissible only when the declarant is
the person of unsound mind; already dead or unavailable to testify as a witness
and may be admitted against himself or successors-
5. Such statement was made upon the personal in-interest and against third persons.
knowledge of the deceased or the person of
unsound mind at a time when: Reason for the admissibility of declaration
a. the matter had been recently perceived by against interest
him or her; and
b. while his or her recollection was clear. 1. Necessity - as such declaration, act, or omission
is frequently the only mode of proof available;
If all the requisites are met the statement of the and
decedent or the person of unsound mind may be
received in evidence as an exception to the hearsay 2. Trustworthiness - presumed that men will
rule. neither falsify nor commit mistakes when such
falsehood or mistake would be prejudicial to
NOTE: Such statement, however, is INADMISSIBLE their own pecuniary interest, and because of the
if made under circumstances indicating its lack of fact that any fraudulent motive for making the
trustworthiness. statement may be shown.

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Remedial Law
Requisites of Declaration against Interest identified in legal

interest with such
1. The declarant is dead or unable to testify; party.
2. The declaration relates to a fact against the Must be against the Need not be against the
interest of the declarant; declarant’s interest. admitter’s interest.
3. At the time he made said declaration, he was
Secondary evidence is
aware that the same was contrary to his Primary evidence is
admissible only when
interest; and admissible whether
the declarant is already
4. The declarant had no motive to falsify and the declarant is
dead or unavailable to
believed such declaration to be true. available as a witness.
testify as a witness.
Q: Alejandro Cuenca was charged with the crime Hearsay, but
admissible as an Not hearsay, thus
of kidnapping Hector Ocampo. One of the
testimonies presented by the prosecution was exception to the admissible.
that of Maribelle Magdayao, who testified that hearsay rule.
Hector confided to her that he and Alejandro’s Must have been made May be made at any
wife Rubi were having an affair. Undoubtedly, ante litem motam, i.e., time, before or during
his wife’s infidelity was ample reason for before the controversy the trial.
Alejandro to contemplate revenge. The declarant must be No requirement that
Consequently, the trial court convicted dead or unable to the admitter is dead or
Alejandro based on the testimonies of the testify. unable to testify.
witnesses. Was the testimony of Maribelle Admissible against the
Admissible only
admissible as evidence? declarant and third
against the admitter.
persons.
A: YES. Hector’s revelation to Maribelle regarding
his illicit relationship with Alejandro’s wife is ACT OR DECLARATION ABOUT PEDIGREE
admissible in evidence, pursuant to Section 38, Rule (Sec. 41, Rule 130)
130. With the deletion of the phrase “pecuniary or
moral interest” from the present provision, it is safe The act or declaration of a person deceased or
to assume that “declaration against interest” has unable to testify, in respect to the pedigree of
been expanded to include all kinds of interest, that another person related to him or her by birth,
is, pecuniary, proprietary, moral or even penal. adoption or marriage, or in the absence thereof,
Hector having been missing since his abduction, with whose family he or she was so intimately
cannot be called upon to testify. His confession to associated as to be likely to have accurate
Maribelle, definitely a declaration against his own information concerning his or her pedigree, may be
interest, since his affair with Rubi was a crime, is received in evidence where it occurred before the
admissible in evidence because no sane person will controversy, and the relationship between the two
be presumed to tell a falsehood to his own persons is shown by evidence other than such act or
detriment. (People v. Bernal, G.R. No. 113685, 19 June declaration. The word “pedigree” includes
1997) relationship, family genealogy, birth, marriage,
death, the dates when and the places where these
Declaration against Interest vs. Admission facts occurred, and the names of the relatives. It
against Interest embraces also facts of family history intimately
connected with pedigree. (Sec. 4, Rule 130, ROC, as
DECLARATION ADMISSION AGAINST amended)
AGAINST INTEREST INTEREST
Made by a party to a
Made by a non-party. litigation or by one in
privity with or

Evidence
Pedigree 5. The relationship between the declarant and the

person whose pedigree is in question must be
It includes: shown by evidence other than such act or
declaration. (Tecson v. COMELEC, G.R. No.
1. Relationship; 161434, 03 Mar. 2004)
2. Family genealogy;
3. Birth; NOTE: Such declarations are natural expressions of
4. Marriage; persons who must know the truth. Although
5. Death; hearsay, it is best that the nature of the case admits
6. The dates when and the places where the facts and because greater evil might arise from the
occurred; rejection of such proof than from its admission.
7. Names of the relatives; and
8. Facts of family history intimately connected FAMILY REPUTATION OR TRADITION
with pedigree. (Ibid.) REGARDING PEDIGREE
(Sec. 42, Rule 130)
NOTE: The relationship between the declarant and
the person subject of the inquiry must be legitimate The declarant is the witness himself and a member
unless the issue is the legitimacy itself. of the family. The witness is the one to whom the
fact relates, it is not necessary for him to establish
There is no provision as to the extent of degree of by independent evidence his relationship to the
relationship. family.
Rationale for Admissibility The reputation or tradition existing in a family

previous to the controversy in respect to the
1. Necessity- since the facts about pedigree are pedigree of any one of its members, may be received
usually those which occurred many years in evidence if the witness testifying thereon be also
before the trial and known only to a few a member of the family, either by consanguinity,
persons; and affinity or adoption. Entries in family bibles or other
family books or charts, engraving on rings, family
2. Trustworthiness- since these are matters portraits and the like, may be received as evidence
which members of a family are presumed to be of pedigree. (Sec 42, Rule 130, ROC, as amended)
interested in ascertaining the truth.
Reason for Admissibility
Requisites for the Admissibility of Acts or
Declarations about Pedigree These are admissible by reason of necessity since
tradition is often the sole method by which proof of
1. The declarant is dead or unable to testify; matters of pedigree can be obtained.
Requisites for the Admissibility of Family
2. The pedigree should be in issue; Reputation or Tradition Regarding Pedigree
3. The declarant must be a relative of the person 1. There is controversy in respect to the pedigree
whose pedigree is in question, either by birth or of any member of the family;
marriage or adoption (Sec. 4, Rule 130, ROC, as 2. The reputation or tradition of the pedigree of
amended) or in the absence thereof, by person the person concerned existed previous to the
whose family he or she was so intimately controversy;
associated as to be likely to have accurate 3. The statement is about the reputation or
information concerning his or her pedigree; tradition of the family in respect to the pedigree
of any member of the family; and
4. The declaration must be made ante litem 4. The witness testifying to the reputation or
motam or before the controversy occurred; and tradition regarding pedigree of the person

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Remedial Law
concerned must be a member of the family of to events of general history important to the
said person either by consanguinity, affinity or community, or respecting marriage or moral
adoption. character, may be given in evidence. Monuments
and inscriptions in public places may be received as
How to establish Family Reputation or Tradition evidence of common reputation. (Sec 43, Rule 130,
with respect to One’s Pedigree ROC, as amended)
1. Through testimony in open court of a witness It is the definite opinion of the community in which
who must be a member of the family either by the fact to be proved is known or exists. It means the
consanguinity, affinity, or adoption; or general or substantially undivided reputation, as
distinguished from a partial or qualified one,
2. Through entries in: although it need not be unanimous. (Regalado,
2008)
a. Family bible;
b. Family books or charts; NOTE: As a general rule, the reputation of a person
c. Engravings on rings; or should be that existing in the place of his residence;
d. Family portraits and the like. it may also be that existing in the place where he is
best known. (Ibid.) Character is what a man is, and
Act or Declaration about Pedigree (Sec. 41, Rule reputation is what he is supposed to be in what
130) vs. Family Reputation regarding Pedigree people say he is. (Lim v. CA, G.R. No. 91114, 25 Sept.
Sec. 42, Rule 130) 1992)
ACT OR FAMILY Reasons for Admissibility

DECLARATION REPUTATION OR
ABOUT PEDIGREE TRADITION 1. Necessity arising from the inherent difficulty of
REGARDING obtaining any other evidence than that in the
PEDIGREE nature of common reputation; and
Witness need not be a Witness is a member of
member of the family. the family. 2. Trustworthiness of the evidence arising from:
Relation of the The witness is the one
declarant and the to whom the fact a. The supposition that the public is
person subject of the relates, it is not conversant with the subject to be proved
inquiry must be necessary for him to because of their general interest therein;
established by establish by and
independent evidence. independent evidence
his relationship to the b. The fact that the falsity or error of such
family. (Francisco, evidence could be exposed or corrected by
1992) other testimony since the public are
Testimony is about Testimony is about interested in the same. (Francisco, 1992)
what the declarant has family reputation or
said concerning the tradition covering Matters that may be Established by Common
pedigree of the family. matters of pedigree. Reputation
COMMON REPUTATION 1. Matters of public and general interest more

(Sec. 43, Rule 130) than 30 years old;
2. Matters respecting marriage or moral character
Common reputation existing previous to the and related facts; and
controversy, as to boundaries of or customs 3. Individual moral character.
affecting lands in the community and reputation as

Evidence
NOTE: Marriage, if not proven through an act or caused by the occurrence with respect to the
declaration about pedigree may be proven through circumstances thereof, may be given in evidence as
common reputation. (Trinidad v. CA, G.R. 118904, 20 part of the res gestae. So, also, statements
Apr. 1998) accompanying an equivocal act material to the
issue, and giving it a legal significance may be
Q: In an attempt to discredit and impeach a received as part of the res gestae.
prosecution witness in a homicide case, the
defense counsel called to the stand a person who As an exception to the hearsay rule, it refers to those
had been the boyhood friend and next-door exclamations and statements by either the
neighbor of the said witness for 30 years. One participants, victims, or spectators to a crime
question that the defense counsel asked of the immediately before, during or immediately after the
impeaching witness was: "Can you tell this commission of the crime, when the circumstances
Honorable Court about the general reputation of are such that the statements were made as
the prosecution witness in your community for spontaneous reactions or utterances inspired by the
aggressiveness and violent tendencies?" As the excitement of the occasion, and there was no
trial prosecutor, would you interpose your opportunity for the declarant to deliberate and
objection to the question of the defense counsel? fabricate a false statement. (Capila v. People, G.R. No.
Explain your answer. 146161, 17 July 2006)
A: YES. Under the Rules, an adverse party’s witness Res gestae refers to the circumstances, facts, and
may be properly impeached by reputation evidence declarations that grow out of the main fact and
provided that it is to the effect that the witness’ serve to illustrate its character and are so
general reputation for honesty, truth, or integrity spontaneous and contemporaneous with the main
was bad. The reputation must only be on character act as to exclude the idea of deliberation and
for truthfulness or untruthfulness. (Cordial v. fabrication. (People of the Philippines v. Quiasayas,
People, G.R. No. L-75880, 25 Sept. 1992) G.R. No. 198022, 07 Apr. 2014)
Difference between Matters of Public Interest Test of Admissibility

and Matters of General Interest
The test is whether the act, declaration, exclamation
Matters of public interest involve those which are is so intimately interwoven or connected with the
common to all citizen of the state or to the entire principal fact or even that it characterizes as to be
people. regarded as a part of the transaction itself, and also
whether it clearly negates any premeditation or
Matters of general interest involve those which purpose to manufacture testimony. (Ibid.)
are common only to a single community or to a
considerable number of persons forming part of the Q: 4 separate Information for Rape and 1
community. Information for Attempted Rape were filed in
the RTC against XXX. In her direct testimony,
PART OF THE RES GESTAE AAA testified that the accused is her father. At
(Sec. 44, Rule 130) the hearing on January 20, 2003, Public
Prosecutor Marites Macarubbo informed the
Res Gestae (2005, 2007, 2014 BAR) court that AAA died. The prosecution adduced
evidence of res gestae through the testimonies
It is a Latin phrase which literally means “things of its witnesses, EEE and Gelmie Calug. EEE
done.” testified that at noontime on April 16, 2001, AAA
arrived at her house. She noticed that AAA was
Statements made by a person while a startling sad and crying. Upon her inquiry, AAA told her
occurrence is taking place or immediately prior or that she was raped by her father on April 8, and
subsequent thereto, under the stress of excitement 3 times hours ago on April 15, 2001. While

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Remedial Law
Gelmie Calug testified that on April 18, 2001, Reason for admissibility
AAA reported for work for the first time as a
house helper in the house of Pedro de los Santos. The reason for the rule is human experience. It has
He noticed that AAA was sad and lonely, and been shown that under certain external
often saw her crying. She confided to him her circumstances of physical or mental shock, the state
problems and revealed to him that she was of nervous excitement which occurs in a spectator
raped by her own father on April 8 and 15 2001. may produce a spontaneous and sincere response to
the actual sensations and perceptions produced by
Were the testimonies of Calug and EEE the external shock.
pertaining to the statements of AAA considered
part of the res gestae and thus produce a The spontaneity of the declaration is such that the
conviction? declaration itself may be regarded as the event
speaking through the declarant rather than the
A: YES. It is well entrenched that a witness may only declarant speaking for himself.
testify on facts derived from his own perception and
not on what he has merely learned or heard from Requisites for the admissibility of res gestae
others. Hence, as a general rule, hearsay evidence is
inadmissible in courts of law. As an exception, 1. That the principal act, the res gestae, be a
however, Sec. 42 of Rule 130 allows the admission startling occurrence;
of hearsay evidence as part of the res gestae. 2. The statements were made before the declarant
had the time to contrive or devise a falsehood;
In determining the admissibility of evidence as part and
of the res gestae, the test is whether the act or 3. That the statements must concern the
declaration was made as a spontaneous reaction occurrence in questions and its immediate
and is so intimately interwoven or connected with attending circumstances. (People of the
the principal fact or event that it characterizes as to Philippines v. Estibal, G.R. No. 208749, 26 Nov.
be regarded as a part of the transaction itself and 2014)
whether it negates any premeditation or purpose to
manufacture testimony. Factors to determine spontaneity of declaration
EEE’s testimony places AAA’s utterances only 1. The time that has lapsed between the
several hours from the time the disputed incidents occurrence of the act or transaction and the
took place on April 15, 2001. Meanwhile, with making of the statement;
respect to Calug’s testimony, which consisted of
statements given by AAA on April 18, 2001, or 3 2. The place where the statement is made;
days after April 15, 2001, incidents, the Court finds
that the RTC and CA incorrectly considered the 3. The condition of the declarant when the
same as part of the res gestae. In this light, the Court utterance is given;
finds that the utterances made to Calug are far too
removed from the event described as to form part of 4. The presence or absence of intervening events
the res gestae. The clear and straightforward between the occurrence and the statement
testimony of EEE, together with the medico-legal relative; and
findings consistent with the facts described,
produces a conviction beyond reasonable doubt 5. The nature and the circumstances of the
that XXX is guilty for the repeated defilement of his statement itself. (Francisco, 1992)
own daughter, AAA. (People v. XXX, G.R. No. 205888,
2 Aug. 2018, J. Caguioa) Q: Edgardo Lupac was convicted of the crime of
rape. One of the evidence adduced was AAA’s
spontaneous, unhesitating and immediate
denunciation of the rape to her Tita Terry and

Evidence
her mother (hindot and inano ako ni Kuya Ega May precede, or Confined to matters
being the term she used). Is the statement made accompany or follow occurring after the
by AAA part of the res gestae under Section 42, the principal act. homicidal act.
Rule 130 of the Rules of Court?
Justification is the Justification is the
A: YES. AAA’s denunciation was part of the res spontaneity of the trustworthiness, being
gestae. AAA went to Tita Terry’s house immediately statement. given by the person
after fleeing from Lupac and spontaneously, who was aware of his
unhesitatingly and immediately declared to Tita impending death.
Terry that Lupac had sexually abused her. Such
manner of denunciation of him as her rapist was Q: Gilberto Villarico, Sr., Gilberto Villarico, Jr.,
confirmed by Tita Terry’s testimony about AAA’s Jerry Ramentos, and Ricky Villarico were
panic-stricken demeanor that rendered it difficult to convicted of the crime of murder for the killing
quickly comprehend what the victim was then of Haide Cagatan. One of the pieces of evidence
saying. Of course, AAA’s use of the words “hindot adduced was a statement of Haide to his mother
and inano ako ni Kuya Ega” said enough about her saying that Berting shot him in the immediate
being raped. (People v. Lupac, G.R. No. 182230, 19 aftermath of the shooting where he was the
Sept. 2012) victim. Is the statement made by Haide
admissible?
Verbal Acts
A: YES. Haide’s statement was part of the res gestae
1. The principal act to be characterized must be and was admissible. The requisites concurred
equivocal; herein. Firstly, the principal act of shooting Haide
2. The equivocal act must be material to the issue; was a startling occurrence. Secondly, his statement
3. The statement must accompany the equivocal to his mother about being shot by the group of
act; and Berting was made before Haide had time to contrive
4. The statement gives a legal significance to the or to devise considering that it was uttered
equivocal act. immediately after the shooting. And, thirdly, the
statement directly concerned the startling
NOTE: The reason for the admissibility of verbal occurrence itself and its attending circumstance:
acts is that the motive, character and object of an act that is, the identities of the assailants. (People v.
are frequently indicated by what was said by the Villarico, et. al., G.R. No. 158362, 04 Apr. 2011)
person engaged in the act.
Q: While passing by a dark uninhabited part of
Part of Res Gestae vs. Dying Declaration their barangay, PO2 Asintado observed
shadows and heard screams from a distance.
PART OF RES GESTAE DYING PO2 Asintado hid himself behind the bushes and
DECLARATION saw a man beating a woman whom he
It is the event itself A sense of impending recognized as his neighbour, Kulasa. When
which speaks. death takes the place of Kulasa was already in agony the man stabbed
an oath and the law her and she fell on the ground. The man
regards the declarant hurriedly left thereafter. PO2 Asintado
as testifying. immediately went to Kulasa’s rescue. Kulasa
May be made by the Can be made by the who was then in a state of hysteria, kept
killer after or during victim only. mentioning to PO2 Asintado “Si Rene, gusto
the killing or that of a akong patayin! Sinaksak niya ako!” When PO2
third person. Asintado was about to carry her, Kulasa refused
and said “Kaya ko. Mababaw lang to. Habulin mo
si Rene.” The following day, Rene learned of

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Remedial Law
Kulasa’s death and, bothered by his conscience, fact that such statements were made is relevant, and
surrendered to the authorities with his counsel. the truth and falsity thereof is immaterial. (People v.
As his surrender was broadcasted all over Malibiran, G.R. No. 178301, 24 Apr. 2009) On the
media, Rene opted to release his statement to other hand, Kulasa’s statements are also admissible
the press which goes: as part of res gestae since the same were made
under the influence of a startling event and without
“I believe that I am entitled to the any opportunity to concoct or devise a falsehood.
presumption of innocence until my guilt
is proven beyond reasonable doubt. RECORDS OF REGULARLY CONDUCTED
Although I admit that I performed acts BUSINESS ACTIVITY
that may take one’s life away, I hope and (Sec. 45, Rule 130)
pray that justice will be served in the
right way. God bless us all. A memorandum, report, record or data compilation
(Sgd.) of acts, events conditions, opinions or diagnoses
Rene” made by writing, typing, electronic, optical or other
similar means at or near the time of or from
The trial court convicted Rene of homicide on transmission or supply of information by a person
the basis of PO2 Asintado’s testimony, Kulasa’s with knowledge thereof, and kept in the regular
statements, and Rene’s statement to the press. course or conduct of a business activity, and such
On appeal, Rene raises the following error: was the regular practice to make the memorandum,
report, record, or data compilation by electronic,
The trial court erred in giving weight to PO2 optical or similar means, all of which are shown by
Asintado’s testimony, as the latter did not have the testimony of the custodian or other qualified
personal knowledge of the facts in issue, and witnesses is excepted from the rule in hearsay
violated Rene’s right to due process when it evidence. (Sec. 45, Rule 130, ROC, as amended)
considered Kulasa’s statements despite lack of
opportunity for her cross-examination. Resolve. NOTE: Reliability is furnished by the fact that
(2014 BAR) regularly kept records typically have a high degree
of accuracy. The law does not fix any precise
A: The trial court did not err in giving weight to PO2 moment when the entries should be made. It is
Asintado’s testimony. While a witness can only sufficient if the entry was made within a reasonable
testify as to those facts which he has personal period of time so that it may appear to have taken
knowledge, the Rules provide that a statement place while the memory of the facts was
made under the influence of a startling event unimpaired.
witnessed by the person who made the declaration
before he had time to think and make up a story, or Availability or Unavailability of the Entrant
to concoct or contrive a falsehood, or to fabricate an
account, and without any undue influence in A significant change or innovation under Sec. 45 is
obtaining it, aside from referring to the event in that the availability or unavailability of the entrant
question or its immediate attending circumstances, is no longer material. Under the old rule on business
is an exception being part of res gestae. (Belbis, Jr., v. entries, it was required that the entrant be dead or
People, G.R. No. 181052, 14 Nov. 2012) unavailable to testify. (Riguera, 2020)
In the case, the statements made by PO2 Asintado Requisites for the admission of a business
constitutes part of res gestae since the same were record as an exception to the hearsay rule
made without any opportunity to fabricate and Requisites for the Admission of a Business
while a startling occurrence was actually taking Record as an Exception to the Hearsay Rule
place. In addition, the statement of PO2 Asintado
may fall within the purview of the doctrine of 1. There is a memorandum, report or data
independent relevant statement, where only the compilation of acts, events, conditions,

Evidence
opinions, made by writing, typing, electronic, Reason for admissibility

optical or other similar means;
1. Necessity – due to the impossibility of requiring
2. The memorandum etc. is made at or near the the official’s attendance as a witness to testify to
time of the act, event, etc.; the innumerable transactions occurring in the
course of his duty; and
3. The memorandum etc., is made by, or from
transmission or supply of information by, a 2. Trustworthiness – there is a presumption of
person with knowledge of the act, event, etc.; regularity in the performance of official duty.
4. The memorandum, etc. is kept in the regular Requisites for the Admissibility of Entries in
course or conduct of a business activity; Official Records (K-P-O)
5. It was the regular practice of the business 1. Entrant had personal Knowledge of the facts
activity to make the memorandum, report, stated by him or such facts were acquired by
record or data compilation by writing, typing, him from reports made by persons under a legal
electronic, optical or similar means; duty to submit the same.
6. All of the foregoing conditions are shown by the 2. Entries were made by a Public officer in the
testimony of the custodian or other qualified performance of his duties or by a person in the
witnesses. (Riguera, 2020) performance of a duty especially enjoined by
law; and
Q: Are business records prima facie evidence of
the facts stated therein? 3. Entries must have been made in Official
records. (Ibid.)
A: No longer under the ROC, as amended. (Riguera,
2020) Entries in Official Record vs. Entries in the
Course of Business
ENTRIES IN OFFICIAL RECORDS
(Sec. 46, Rule 130) ENTRIES IN ENTRIES IN THE
OFFICIAL RECORD COURSE OF BUSINESS
Entries in official records made in the performance The entrant, if a private It is sufficient that the
of his or her duty by a public officer of the individual, must have entrant made the
Philippines, or by a person in the performance of a acted pursuant to a entries pursuant to a
duty specially enjoined by law, are prima facie specific legal duty duty be it legal,
evidence of the facts therein stated. (Sec. 46, Rule specially enjoined by contractual, moral or
130, ROC, as amended) law. religious.
Entrant need not be Entrant must be dead
Official record dead or unable to or unable to testify.
testify.
The original document that is legally recognized and Need not be Needs authentication.
thus ensuring the quality of a fact when it is authenticated.
established. It may be a:
Q: Should entries in the police blotter be given
1. Register; probative value?
2. Cash book; or
3. An official return or certificate (Regalado, 2008) A: NO, as they are not conclusive evidence of the
truth of the contents but merely of the fact that they

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Remedial Law
were recorded. (People v. Cabrera, Jr., G.R. No. A: NO. Under Sec. 47, Rule 130, statement of matters
138266, 30 Apr. 2003) contained in a periodical may be admitted only “if
that compilation is published for use by persons
COMMERCIAL LISTS AND THE LIKE engaged in that occupation and is generally used
(Sec. 47, Rule 130) and relied upon by them therein.” The cited report
is a mere newspaper account and not even a
Evidence of statements of matters of interest to commercial list. At most, it is but an analysis or
persons engaged in an occupation contained in a opinion which carries no persuasive weight as no
list, register, periodical, or other published sufficient figures to support it were presented.
compilation is admissible as tending to prove the Neither did anybody testify to its accuracy. It cannot
truth of any relevant matter so stated if that be said that businessmen generally rely on news
compilation is published for use by persons engaged items such as this in their occupation. Besides, no
in that occupation and is generally used and relied evidence was presented that the publication was
upon by them therein. (Sec. 47, Rule 130, ROC, as regularly prepared by a person in touch with the
amended) market and that it is generally regarded as
trustworthy or reliable. Absent extrinsic proof of
Reason for Admissibility of Commercial Lists the accuracy, these reports are not admissible.
(Riguera, 2020, citing Manila Electric Co. v.
1. Necessity - because of the usual inaccessibility Quisumbing, G.R. No. 127598, 22 Feb. 2000)
of the persons responsible for the compilation
of matters contained in such lists, it would Examples of Commercial Lists
cause the court inconvenience if it would issue
summons to these numerous individuals; and 1. Trade journals reporting current prices and
other market data;
2. Trustworthiness - persons responsible for 2. Mortality tables compiled for life insurance;
such lists have no motive to deceive and they 3. Abstracts of title compiled by reputable title
further realize that unless the list, register or examining institutions or individuals; or
periodical or other published compilation are 4. Business directories, animal pedigree registers,
prepared with care and accuracy, their work and the like. (Francisco, 1992)
will have no commercial or probative value.
LEARNED TREATISES
Requisites for the Admissibility of Commercial (Sec. 48, Rule 130)
Lists and the like
A published treatise, periodical or pamphlet on a
1. Statements of matters of interest to persons subject of history, law, science, or art is admissible
engaged in an occupation; as tending to prove the truth of a matter stated
2. Statements must be contained in a list, register, therein if the court takes judicial notice, or a witness
periodical, or other published compilation; expert in the subject testifies, that the writer of the
3. Compilation is published for use by persons statement in the treatise, periodical or pamphlet is
engaged in that occupation; and recognized in his or her profession or calling as
4. Such is generally relied upon by them. expert in the subject. (Sec. 48, Rule 130, ROC, as
amended)
Q: In a compulsory arbitration case between
Mercalco and its union, may the Secretary of Reason for Admissibility
Labor take into account a newspaper report
citing an All Asia Capital finance analyst’s The learned writers have no motive to misrepresent
estimate o Meralco’s 1996 net operating income due to the awareness that his work will be carefully
at P5.6 billion and upon which the union relied scrutinized by the learned members of the
upon in order to support its position on the wage profession and that he shall be subject to criticisms
issue? and be ultimately rejected as an authority on the

Evidence
subject matter if his conclusions are found to be same in the two actions, the admissibility of a
invalid. former testimony on an issue which is similar in
both actions cannot be questioned.
Requisites for the Admissibility of Learned
Treatises These considerations, among others, make
Section 47, Rule 130 a distinct rule on evidence
1. When the court can take judicial notice of them; and therefore should not be confused with the
or general provisions on deposition under Rule 23
2. When an expert witness testifies that the author of the Rules of Court. In other words, even if the
of such is recognized as expert in that petitioner complies with Rule 23 of the Rules of
profession. (Sec. 48, Rule 130, ROC, as amended) Court on the use of depositions, the observance
of Section 47, Rule 130 of the Rules of Court
TESTIMONY OR DEPOSITION AT A FORMER cannot simply be avoided or
PROCEEDING disregarded. (Republic v. Sandiganbayan, G.R.
(Sec. 49, Rule 130) No. 152375, 13 Dec. 2011)
The testimony or deposition of a witness deceased 4. The issue testified to by the witness in the
or out of the Philippines or who cannot, with due former trial is the same issue involved in the
diligence, be found therein, or is unavailable or present case; and
otherwise unable to testify, given in a former case or
proceeding, judicial or administrative, involving the 5. The adverse party had an opportunity to cross-
same parties and subject matter, may be given in examine the witness in the former case.
evidence against the adverse party who had the (Ambray v. Tsuorous, G.R. No. 209264, 05 July
opportunity to cross examine him or her. (Sec. 49, 2016)
Reason for Admissibility
Requisites for the Rule on Former Testimony to
Apply The reasons for the admissibility of testimony taken
at a former trial or proceeding are the necessity for
1. The witness is dead or unable to testify; the testimony and its trustworthiness. However,
before the former testimony can be introduced in
2. His testimony or deposition was given in a evidence, the proponent must first lay the proper
former case or proceeding, judicial or predicate therefor, i.e., the party must establish the
administrative, between the same parties or basis for the admission of testimony in the realm of
those representing the same interests; admissible evidence. (Ibid.)
3. The former case involved the same subject as Grounds which make a Witness Unable to
that in the present case, although on different Testify in a Subsequent Case
causes of action;
1. Death;
NOTE: Section 47 (now Sec. 49), Rule 130 2. Insanity or mental incapacity or the former
requires that the issues involved in both cases witness’ loss of memory through old age or
must, at least, be substantially the same; disease;
otherwise, there is no basis in saying that the 3. Physical disability by reason of sickness or
former statement was - or would have been - advanced age;
sufficiently tested by cross-examination or by 4. The fact that the witness has been kept away by
an opportunity to do so. The requirement of contrivance of the opposite party; or
similarity though does not mean that all the 5. The fact that after diligent search the former
issues in the two proceedings should be the witness cannot be found. (Francisco, 1992)
same. Although some issues may not be the

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Proof of Former Testimony Independently Relevant Statements
1. If reduced to writing, such writing is the These are statements which are relevant
primary evidence thereof and should be used; independently of whether they are true or not. They
or are neither hearsay nor an exception to the hearsay
2. The stenographic notes or a copy thereof. rule as the purpose thereof is not to prove the truth
of the declaration or document. (Estrada v. Desierto,
NOTE: The judge’s notes are not evidence of what supra) It merely proves the fact that a statement
the witness said, and, as a rule, they can be used only was made and not the truth of the fact asserted in
to refresh the memory of a witness. the statement. (1999, 2005, 2009, 2010 BAR)
RESIDUAL EXCEPTION An out-of-court statement which is relevant not for

(Sec. 50, Rule 130) the truth off a matter asserted therein, but for
something else, e.g., state of mind, intent, belief, the
A statement not specifically covered by any of the mere fact of utterance, or legal effect. It is a
exceptions, having circumstantial guarantees of statement relevant for something else than its truth.
trustworthiness, is admissible provided the Not being hearsay, independently relevant evidence
conditions under Sec. 50, Rule 130 are present. is admissible. (Riguera, 2020)
Requisites for Admissibility Classification of Independently Relevant

Statements
1. The statement, having equivalent
circumstantial guarantees of trustworthiness, 1. Those statements which are the very facts in
must not be covered by any of the foregoing issue; and
exceptions;
2. Those statements which are circumstantial
2. The statement is offered as evidence of a evidence of the fact in issue. It includes the
material fact; following:
3. The statement is more probative on the point a. Statements of a person showing his state of
for which it is offered than any other evidence mind, that is, his mental condition,
which the proponent can procure through knowledge, belief, intention, ill-will and
reasonable efforts; and other emotions;
4. The general purposes of these rules and the b. Statements of a person which show his
interests of justice will be best served by physical condition, as illness and the like;
admission of the statement of evidence. (Sec. 50,
Rule 130, ROC, as amended) c. Statements of a person from which an
inference may be made as to the state of
NOTE: A statement may not be admitted under this mind of another, i.e., the knowledge, belief,
exception unless the proponent makes known to the motive, good or bad faith, etc. of the latter
adverse party, sufficiently in advance of the hearing,
or by the pre-trial stage in the case of a trial of the d. Statements which may identify the date,
main case, to provide the adverse party with a fair place and person in question; and
opportunity to meet it, the proponent’s intention to
offer the statement and the particulars of it, e. Statements showing the lack of credibility
including the name and address of the declarant. of a witness.
(Ibid.)

Evidence
Q: Annie overheard Billy call Rocky a thief. In an his personal knowledge and derived from his own
action for defamation filed by Rocky against perception.
Billy, is the testimony of Annie offered to prove
the fact of utterance i.e., that Billy called Rocky a The contention that the guards had no personal
thief, admissible in evidence? Explain. (1999 knowledge of the contents of the package before it
BAR) was opened is without merit. The guards can testify
as to the facts surrounding the opening of the
A: YES. The testimony of Annie is admissible in package since they have personal knowledge of the
evidence as an independently relevant statement. It circumstances thereof, being physically present at
is offered in evidence only to prove the tenor the time of its discovery.
thereof, not to prove the truth of the facts asserted
therein. Independently relevant statements include On the other hand, the testimony of the trainer of
statements which are on the very facts in issue or the dog is not hearsay on the basis of the following
those which are circumstantial evidence thereof. grounds:
The hearsay rule does not apply. (People v. Gaddi,
G.R. No. 74065, 27 Feb. 1989) a. He has personal knowledge of the facts in issue,
having witnessed the same;
Q: A foreign dog trained to sniff dangerous drugs b. Hearsay merely contemplates an out-of-court
from packages, was hired by FDP Corporation, a declaration of a person which is being offered to
door-to-door forwarder company, to sniff prove the truthfulness and veracity of the facts
packages in their depot at the international asserted therein;
airport. In one of the routinary inspections of c. He is an expert witness; hence, his testimony
packages waiting to be sent to the USA, the dog may constitute an exception to the hearsay rule;
sat beside one of the packages, a signal that the d. The accused has the opportunity to cross-
package contained dangerous drugs. examine him; and
Thereafter, the guards opened the package and e. Testimony of a witness as to statements made
found 2 kilograms of cocaine. During the trial, by nonhuman declarants does not violate the
the prosecution, through the trainer who was rule against hearsay.
present during the incident and an expert in this
kind of field, testified that the dog was highly The law permits the so-called “non-human
trained to sniff packages to determine if the evidence” on the ground that machines and animals,
contents were dangerous drugs and the sniffing unlike humans, lack a conscious motivation to tell
technique of their highly trained dogs was falsehoods, and because the workings of machines
accepted worldwide and had been successful in can be explained by human witnesses who are then
dangerous drugs operations. The prosecution subject to cross-examination by opposing counsel.
moved to admit this evidence to justify the (City of Webster Groves v. Quick. 323 S.W. 2d 386)
opening of the package. The accused objected on
the grounds that: (i) the guards had no personal Conversely, the accused may not argue that he
knowledge of the contents of the package before cannot cross examine the dog as the Constitutional
it was opened; (ii) the testimony of the trainer of right to confrontation refers only to witnesses. As
the dog is hearsay; and (iii) the accused could alluded, the human witnesses who have explained
not cross-examine the dog. Decide. (2014 BAR) the workings of the non-human evidence is the one
that should be cross-examined. There is no doubt
A: The objections of the accused should be that the evidence of the prosecution is admissible
overruled. Evidence is admissible when it is for being relevant and competent.
relevant to the issue and is not excluded by the law
or the rules. (Section 3, Rule 128, ROC, as amended) Q: In Estrada v. Desierto, supra., at issue was
Under Section 22, Rules 130 of the Rules of Court, a whether President Estrada resigned from his
witness can testify only to those which he knows of position. Submitted to prove Estrada’s intent to
resign was the Angara Diary in which Executive

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Remedial Law
Secretary Edgardo Angara recorded Estrada’s NOTE: Opinion testimony involving questions of
statements in which he said, “Pagod na pagod na law or the ultimate fact in issue is not admissible.
ako. Ayoko na, masyado nang masakit. Pagod na
ako sa red tape, bureaucracy, intriga. I just want Evidence not based on personal knowledge vs.
to clear my name, then I will go.” Angara himself Opinion evidence (2002, 2004 BAR)
did not testify in court. Estrada’s lawyers argued
that these statements were hearsay. Were they? EVIDENCE NOT OPINION EVIDENCE
BASED ON PERSONAL
A: NO. The statements are independently relevant, KNOWLEDGE
that is, relevant independently of whether they are Consists of testimony Expert evidence based
true or not. Independently relevant statements are that is not based on on the personal
of two classes: (1) those statements which are the personal knowledge of knowledge, skill,
very facts in issue, and (2) those statements which the person testifying. experience or training
are circumstantial evidence of the acts in issue. of the person testifying
and evidence of an
The second includes statements of a person ordinary witness on
showing his state of mind (i.e., his mental condition, limited matters.
knowledge, belief, intention, ill will, and other
emotions) and statements of a person from which Opinion of Expert Witness
an inference may be made as to the state of mind of
another. The opinion of a witness on a matter requiring
special knowledge, skill, experience or training
The Angara Diary contains statements of Estrada which he shown to possess may be received in
which reflect his state of mind and are evidence. (Sec. 52, Rule 130, ROC, as amended)
circumstantial evidence of his intent to resign. It
also contains statements which one can reasonably NOTE: The use of the word “may”, signifies that the
infer Estrada’s intent to resign. Such statements are use of opinion of expert witness is permissive and
independently relevant and are excluded from the not mandatory on the part of the courts. It only
hearsay. (Riguera, 2020) assists the court in the determination of the issue
before it, and is for the court to adopt or not to adopt
7. OPINION RULE depending on its appreciation of the attendant facts
and the applicable law. (Tabao v. People, G.R. No.
Opinion 187246, 20 July 2011)
A person’s thought belief, or inference, especially a Expert Witness

witness’s view about facts in dispute, as opposed to
personal knowledge of the facts themselves. (Black’s He is one who belongs to the profession or calling to
Law Dictionary, 2004) which the subject matter of the inquiry relates and
who possesses special knowledge on questions on
GR: The opinion of a witness is not admissible. (Sec. which he proposes special knowledge to express an
51, Rule 130, ROC, as amended) A witness testifies opinion. (Regalado, 2008)
only with respect to facts personally observed by
him and it is for the court to draw conclusions from Before one may be allowed to testify as an expert
the facts testified to. (2011 BAR) witness, his qualification must first be established
by the party presenting him. (People vs. Fundano,
XPNs: G.R. No. 124737, 26 June 1998)
1. Opinion of expert witness; and
2. Opinion of ordinary witnesses. NOTE: Expert testimony is not admissible as to a
matter not in issue.

Evidence
NOTE: Expert witness is not necessary when the of discretion in determining the weight to be given
doctrine of res ipsa loquitur is applicable. (Rosit v. to such opinion, and for that purpose may consider
Davao Doctor’s Hopital, G.R. No. 210445, 05 Dec. the following:
2015)
1. Whether the opinion is based upon sufficient
Degree of Skill or Knowledge facts or data;
2. Whether it is the product of reliable principles
There is no definite standard in determining the and methods;
degree of skill or knowledge that a witness must 3. Whether the witness has applied the principles
possess in order to testify as an expert as long as the and methods reliably to the facts of the case;
following are present: and
4. Such other factors as the court may deem
1. Training and education; helpful to make such determination. (Sec. 5,
2. Particularity, first-hand familiarity with the Rule 133, ROC, as amended)
facts of the case; and
3. Presentation of authorities or standards upon Discretion of the Court in Giving Weight to the
which his opinion is based. (People v. Abriol, G.R. Testimony
No. 123137, 17 Oct. 2001)
Although courts are not ordinarily bound by expert
NOTE: An expert witness may base his opinion testimonies, they may place whatever weight they
either on the first-hand knowledge of the facts or on may choose upon such testimonies in accordance
the basis of hypothetical questions where the facts with the facts of the case. The relative weight and
are presented to him hypothetically and on the sufficiency of expert testimony is peculiarly within
assumption that they are true, formulates his the province of the trial court to decide, considering
opinion on such hypothesis. the ability and character of the witness, his actions
upon the witness stand, the weight and process of
The probative force of the testimony of an expert the reasoning by which he has supported his
does not lie in a mere statement of his theory or opinion, his possible bias in favor of the side for
opinion, but rather in the aid that he can render to whom he testifies, the fact that he is a paid witness,
the courts in showing the facts which serve as a the relative opportunities for study and observation
basis for his criterion and the reasons upon which of the matters about which he testifies, and any
the logic of his conclusion is founded. (Dizon v. other matters which deserve to illuminate his
Tuazon, G.R. No. 172167, 09 July 2008) statements.
NOTE: The competence of an expert witness is a The opinion of the expert may not be arbitrarily
matter for the trial court to decide upon in the rejected; it is to be considered by the court in view
exercise of its discretion. The test of qualification is of all the facts and circumstances in the case and
necessarily a relative one, depending upon the when common knowledge utterly fails, the expert
subject matter of the investigation, and the fitness of opinion may be given controlling effect. The
the expert witness. In our jurisdiction, the criterion problem of the credibility of the expert witness and
remains to be the expert witness’ special the evaluation of his testimony is left to the
knowledge, experience, and practical training that discretion of the trial court whose ruling thereupon
qualify him or her to explain highly technical is not reviewable in the absence of abuse of
medical matters to the court. (Casumpang v. Cortejo, discretion. (Tabao v. People, G.R. No. 187246, 20 July
G.R. Nos. 171127, 171217, 171228, 11 Mar. 2015) 2011)
Weight to be given Opinion of Expert Witness NOTE: The testimony of a qualified medical doctor
cannot be excluded simply because he is not a
In any case where the opinion of an expert witness specialist. The matter of training and specialization
is received in evidence, the court has a wide latitude of the witness goes to the weight rather than

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Remedial Law
admissibility. (Casumpang v. Cortejo, G.R. Nos. Opinion of Ordinary Witness

171127, 171217, 171228, 11 Mar. 2015)
That which is given by a witness who is of ordinary
Test in Determining the Need to Resort to Expert capacity and who has by opportunity acquired a
Evidence particular knowledge which is outside the limits of
common observation and which may be of value in
Whether the opinion called for will aid the court in elucidating a matter under consideration.
resolving an issue.
The opinion of a witness for which proper basis is
Handwriting Expert given, may be received in evidence regarding:
The opinion of handwriting experts is not 1. The identity of a person about whom he or
necessarily binding upon the court, the expert’s she has adequate knowledge;
function being to place before the court data upon 2. A handwriting with which he or she has
which the court can form its own opinion. This sufficient familiarity;
principle holds true especially when the question 3. The mental sanity of a person with whom
involved is mere handwriting similarity or he or she is sufficiently acquainted (People
dissimilarity, which can be determined by a visual v. Castillo, G.R. No. 1865333, 09 Aug. 2010);
comparison of specimens of the questioned
signatures with those of the currently existing ones. NOTE: Where the sanity of a person is at
A finding of forgery does not depend entirely on the issue, expert opinion is not necessary, the
testimonies of handwriting experts, because the observation of the trial judge coupled with
judge must conduct an independent examination of evidence establishing the person’s state of
the questioned signature in order to arrive at a mental sanity will suffice. (Hernandez v. San
reasonable conclusion as to its authenticity. Juan-Santos, G.R. No. 166470 & 169217, 07
(Gepulle-Garpo v. Spouses Garabato, G.R. No. 200013, Aug. 2009)
14 Jan. 2015)
4. The witness’ impressions of the emotion,
Q: In a case where the issue involves forgery, two behavior, condition or appearance of a
expert witnesses were presented by the person. (Sec. 53, Rule 130, ROC, as amended)
plaintiff, the NBI official and a handwriting (2005 BAR)
expert from the PNP. The NBI official testified
that the signatures in the deed of sale and the 8. CHARACTER EVIDENCE
other sample signatures are the same. However,
the PNP handwriting expert declared that the Character
person who signed are not the same person. The
lower court gave credit and based the ruling on The aggregate of the moral qualities which
the testimony of the PNP handwriting expert on belong to and distinguish an individual person;
the fact that the said witness has better the general result of one’s distinguishing
credentials than the NBI witness. Is the ruling attributes. (Black’s Law Dictionary, 2004)
valid, because of the fact that the court based the
ruling on the credentials? Admissibility of Character Evidence
A: NO. While credentials of an expert witness play a GR: Evidence of a person’s character or a trait of
factor in the evidentiary and persuasive weight of character is INADMISSIBLE for the purpose of
his testimony, the same cannot be the sole factor in proving action in conformity therewith on a
determining its value. The judge must conduct his particular occasion, except as provided in the rules.
own independent examination of the signatures
under scrutiny. (Tamani, et al. v. Salvador and Bravo, NOTE: The reason for this is that the evidence of a
G.R. No. 171497, 04 Apr. 2011) person’s character does not prove that such person

Evidence
acted in conformity with such character or trait in a Dave had been previously convicted of
particular occasion. homicide.
XPNs: Is Dovie's testimony admissible as to the

character of Dave? (2018 BAR)
CRIMINAL CASES
AS TO THE ACCUSED A: NO. Dovie’s testimony on Dave’s previous
The character of the offended party may be conviction for homicide as evidence of his bad
proved if it tends to establish in any reasonable character does not refer to a moral trait involved in
degree the probability or improbability of the the offense charged which is sexual assault.
offense charged.
The accused may prove his or her good moral Civil Cases
character pertinent to the moral trait involved in Evidence of the moral character of a party in a civil
the offense charged. case is admissible only when pertinent to the issue
AS TO THE PROSECUTION of character involved in the case. (Sec. 54[b], Rule
They may not prove the bad moral character of 130, ROC, as amended) (Sec. 54(b), Rule 130, ROC, as
the accused which is pertinent to the moral trait amended)
involved in the offense charged, unless in rebuttal
when the accused opens the issue by introducing Proof of bad character
evidence of his good moral character.
AS TO THE OFFENDED PARTY 1. Cross-examination; or
His good or bad moral character may be proved 2. Independent evidence of bad character.
as long as it tends to establish in any reasonable
degree the probability or improbability of the NOTE: It is permitted only when pertinent to the
offense charged. (2002, 2010 BAR) issue of character involved in the case like in a civil
action for damages emanating from the offense of
NOTE: In criminal cases, character evidence is libel, slander, or seduction. (Peralta, 2020)
inadmissible under the following situations:
Personal opinion as to the moral character of the
1. In rebuttal, proof of the bad character of the accused and the specific conduct of the part
victim is not admissible if the crime was exhibiting character is excluded as evidence.
committed through treachery and However, reputation in the community is
premeditation; and admissible.
2. In rape cases, the evidence of complainant’s
past sexual conduct, or reputation or opinion Q: Don was prosecuted for homicide for
thereof shall not be admitted unless and only to allegedly beating up Vilma to death with an iron
the extent that the court finds that such pipe. May the prosecution introduce evidence
evidence is material and relevant to the case. that Vilma had a good reputation for
(Sec. 6, R.A. No. 8505) peacefulness and non-violence? Why? (2002
BAR)
Q: Dave is on trial for sexual assault of Delly, a
law student who sidelines as a call center agent. A: NO. The prosecution may introduce evidence of
Dave offers the testimony of Danny, who says the good or even bad moral character of the victim
that Dave is known in the community as a decent if it tends to establish in any reasonable degree the
and discerning person. The prosecution probability or improbability of the offense charged.
presents a rebuttal witness, Dovie, who testifies In this case, the evidence is not relevant.
that, if Dave was reputed to be a good person,
that reputation was a misperception because

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Remedial Law
Criminal and Civil Cases evidence by the the prima facie

amount of evidence evidence against him.
Evidence of the good character of a witness is not required by law, which (Bautista v. Sarmiento,
admissible until such character has been is preponderance of G.R. No. L-45137, 23
impeached. evidence in civil cases. Sept. 1985)
(Supreme Transliner,
In all cases in which evidence of character or a trait Inc. v. CA, G.R. No.
of character of a person is admissible, proof may be 125356, 21 Nov. 2001)
made by testimony as to reputation or by testimony Never shifts. (Sec. 1,
in the form of an opinion. On cross examination, Rule 131, ROC, as
inquiry is allowable into relevant specific instances amended) May shift from one
of conduct. party to the other in
It remains throughout the course of the
In cases in which character or a trait of a character the entire case exactly proceedings,
of a person is an essential element of a charge, claim where the pleadings depending on the
or defense, proof may also be made of specific originally placed it or exigencies of the case.
instances of that person’s conduct. (Sec. 54[c], Rule with the party upon (Sec. 1, Rule 131, ROC,
130, ROC, as amended) (Sec. 54(c), Rule 130, ROC, as whim it is imposed. as amended)
amended) (Republic v. Mupas, G.R.
No. 181892, 08 Sept.
2015)
F. BURDEN OF PROOF AND PRESUMPTIONS Generally determined
(RULE 131) by the developments of
the trial, or by the
provisions of
Generally determined
Burden of Proof vs. Burden of Evidence substantive law or
by the pleadings filed
procedural rules which
by the party.
may relieve the party
BURDEN OF
BURDEN OF PROOF from presenting
EVIDENCE
evidence of the facts
It is the duty of a party It is the duty of a party
alleged.
to present evidence on to present evidence
the facts necessary to sufficient to establish
Test for Determining where the Burden of Proof
establish his or her or rebut a fact in issue
Lies
claim or defense by the to establish prima facie
amount of evidence case. (Sec. 1, Rule 131,
Ask which party to an action or suit will fail if he
required by law. (Sec. 1, ROC, as amended)
offers no evidence competent to show the facts
Rule 131, ROC, as
averred as the basis for the relief he seeks to obtain.
amended) Burden of evidence is
Burden of proof or that logical necessity
Q: In a collection case, who has the burden of proof?
“onus probandi” which rests upon a
traditionally refers to party at any particular
A: The party who alleges a fact has the burden of
the obligation of a time during the trial to
proving it. In the course of trial in a civil case, once
party to the litigation create a prima facie
plaintiff makes out a prima facie case in his favor,
to persuade the court case in his favor or to
the duty or the burden of evidence shifts to
that he is entitled to overthrow one created
defendant to controvert plaintiff’s prima facie case,
relief. against him.
otherwise, a verdict must be returned in favor of
Duty of a party to Duty of the party to go
plaintiff. Hence, the plaintiff must establish the
present evidence to forward with the
failure to pay on the part of the defendant, the latter,
establish his claim or evidence to overthrow

Evidence
on the other hand, has to prove their defense that establish a fact in issue. One need not introduce
the obligation was extinguished. evidence to prove the fact for a presumption is
prima facie proof of the fact presumed. (Diesel
In this case, BPI, as plaintiff, had to prove that Construction, Inc v. UPSI Property Holdings, Inc., G.R.
spouses De Leon failed to pay their obligations No. 154937, 24 Mar. 2008)
under the promissory note. The spouses, on the
other hand, had to prove their defense that the Presumption of Law vs. Presumption of Fact
obligation was extinguished by the loss of the
mortgaged vehicle, which was insured. The mere PRESUMPTION OF PRESUMPTION OF
loss of the mortgaged vehicle does not automatically LAW FACT
relieve the spouses De Leon of their obligation. As (PRAESUMPTIONES (PRAESUMPTIONES
provided in the Promissory Note with Chattel JURIS) HOMINIS)
Mortgage, the mortgagor must notify and submit It is a deduction which
proof of loss to the mortgagee. (De Leon v. BPI, G.R. It is a deduction which reason draws from
No. 184565, 20 Nov. 2013) the law expressly the facts proved
directs to be made from without an express
Presumptions particular facts. direction from law to
that effect.
Presumptions are inferences of the existence or A certain inference must
Discretion is vested in
non-existence of a fact which courts are permitted be made whenever the
the tribunal as to
to draw from the proof of other facts. (In the matter facts appear which
drawing the
of the Intestate Estates of Delgado and Rustia, G.R. furnish the basis of the
inference.
No. 175733, 27 Jan. 2006) inference.
Derived wholly and
NOTE: A presumption shifts the burden of going directly from the
forward with the evidence. It imposes on the party Reduced to fixed rules circumstances of the
against whom it is directed the burden of going and forms a part of the particular case by
forward with evidence to meet or rebut the system of jurisprudence means of the common
presumption. (Bautista, 2004) experience of
mankind
In a sense, a presumption is an inference which is Need not be pleaded or
mandatory unless rebutted. proved if the facts on
Has to be pleaded and
which they are based
Presumption vs. Inference proved
are duly averred and
established
PRESUMPTION INFERENCE
It is mandated by law It is a factual conclusion Kinds of Presumptions of Law
and establishes a that can rationally be
legal relation drawn from other facts. 1. Conclusive presumptions (presumptions juris et
between or among (Riano, 2019) de jure); and
the facts. 2. Disputable presumptions (presumptions juris
It is a deduction It is a permissive tantum). (Regalado, 2008)
directed by law. deduction. (Francisco,
1996) Conclusive Presumption
Effect of Presumption A presumption which is irrebuttable and any

evidence tending to rebut the presumption is not
A party in whose favor the legal presumption exists admissible. This presumption is in reality a rule of
may rely on and invoke such legal presumption to substantive law. (Riano, 2019)

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Remedial Law
Classes of Conclusive Presumptions Distinguish Estoppel from Waiver
a. Estoppel in pais (Equitable Estoppel) – A waiver is a voluntary and intentional

Whenever a party has, by his or her own abandonment or relinquishment of a known right. It
declaration, act or omission, intentionally and must be supported by an agreement founded upon
deliberately led another to believe a particular a valid consideration.
thing to be true, and to act upon such belief, he
cannot, in any litigation arising out of such An equitable estoppel may arise however, in the
declaration, act or omission, be permitted to absence of any intention on the part of the person
falsify it (Sec. 2(a), Rule 131, ROC, as amended); estopped to relinquish or change any existing right,
and and it need not be supported by any consideration,
agreement, or legal obligation. (Francisco, 1996)
b. Estoppel by deed – A party to a property deed
is precluded from asserting, as against another Disputable Presumption
party to the deed, any right or title in derogation
of the deed, or from denying the truth of any This refers to a presumption which is satisfactory if
material fact asserted in the deed uncontradicted but may be contradicted and
overcome by other evidence. (Sec. 3, Rule 131, ROC,
E.g. The tenant is not permitted to deny the title as amended)
of his or her landlord at the time of the
commencement of the relation of landlord and Disputable Presumptions under Section 3, Rule
tenant between them (Sec. 2[b], Rule 131, ROC, 131
as amended) (Sec. 2(b), Rule 131, ROC, as
amended) 1. A person is innocent of a crime or wrong;
NOTE: Estoppel may attach even though the NOTE: It applies to both civil and criminal
landlord does not have title at the commencement cases. Presumption of innocence of the accused
of the relations. It may inure in favor of the accompanies him until the rendition of
successor. (Golden Horizon Realty Corporation vs. St judgment and disappears after conviction, such
Chuan, G.R. No. 145416, 21 Sept. 2001) that upon appeal, the appellate court will then
presume the guilt of the accused. The
The rule on estoppel against tenants is subject to a prosecution’s case must rise and fall on its own
qualification. It does not apply if: merits and cannot draw strength from the
weakness of the defense. (People v. Mingming,
1. The landlord’s title has expired; G.R. No. 174195, 10 Dec. 2008)
2. It has been conveyed to another; or
3. It has been defeated by a title paramount, 2. Unlawful act is done with an unlawful intent;
subsequent to the commencement of lessor- 3. Person intends the ordinary consequences of
lessee relationship. his or her voluntary act;
In other words, if there was a change in the nature 4. Person takes ordinary care of his concerns;
of the title of the landlord during the subsistence of
the lease, then the presumption does not apply. GR: All people are sane and normal and moved
Otherwise, if the nature of the landlord’s title by substantially the same motives. When of age
remains as it was during the commencement of the and sane, they must take care of themselves.
relation of landlord and tenant, then estoppel lies Courts operate not because one person has
against the tenant. (Santos v. NSO, G.R. No. 171129, been defeated or overcome by another but
06 Apr. 2011) because that person has been defeated or
overcome illegally. There must be a violation of
the law. (Vales v. Villa, G.R. No. 10028, 16 Dec.

Evidence
1916) which a person possesses or exercises acts of

ownership over, are owned by him or her;
XPN: When one of the parties is unable to read
or if the contract is in a language not NOTE: In order to raise the presumption, the
understood by him, and mistake or fraud is following must be proved:
alleged, the person enforcing the contract must
show that the terms thereof have been fully a. That a crime was committed;
explained to the former. (Art. 1332, NCC) b. That it was committed recently;
c. That the stolen property was found in the
5. Evidence willfully suppressed would be possession of the defendant; and
adverse if produced; d. That the defendant is unable to explain his
Requisites: possession satisfactorily. (U.S. v. Espia 16,
G.R. No. L-5813, 27 Aug. 1910)
a. The evidence is material;
b. The party had the reasonable opportunity 11. A person in possession of an order on himself or
to produce it; and herself for the payment of the money, or the
c. The evidence is available only to the said delivery of anything, has paid the money or
party. delivered the thing accordingly;
The presumption will NOT be applicable when: 12. Person acting in public office was regularly
appointed or elected to it;
a. Suppression of evidence is not willful;
b. Evidence suppressed or withheld is merely Ratio: It would cause great inconvenience if in
corroborative or cumulative; the first instance strict proof were required of
c. Evidence is at the disposal of both parties; appointment or election to office in all cases
and where it might be collaterally in issue.
d. Suppression is by virtue of an exercise of
privilege. However, the presumption of a regular
appointment does not apply to a public officer
NOTE: Failure of the prosecution to present a seeking to recover salary attached to the office,
certain witness and to proffer a plausible or the benefits of a pension system.
explanation does not amount to willful
suppression of evidence since the prosecutor 13. Official duty has been regularly performed;
has the discretion/prerogative to determine the
witnesses he is going to present. (People v. NOTE: All things are presumed to have been
Jalbuena, G.R. No. 171163, 04 July 2007) done regularly and with due formality until the
contrary is proved. This presumption extends
6. Money paid by one to another was due to the to persons who have been appointed pursuant
latter; to a local or special statute to act in quasi-public
7. Thing delivered by one to another belonged to or quasi-official capacities and to professionals
the latter; like lawyers and surgeons.
8. Obligation delivered up to the debtor has been
paid; GR: Presumption applies to both civil as well as
9. Prior rents or installments had been paid when criminal cases.
a receipt for the later ones is produced;
XPNs:
10. A person found in possession of a thing taken in
the doing of a recent wrongful act is the taker a. Petition for writ of amparo – presumption
and doer of the whole act; otherwise, that things may not be invoked by the respondent

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Remedial Law
public officer or employee (Rule on the Writ with postage pre-paid and that it was actually
of Amparo, A.M. No. 17-9-12-SC); mailed.
b. The presumption does not apply during in-
custody investigation (People v. Camat, G.R. Bare denial of receipt of a mail cannot prevail
No. 112262, 2 Apr. 1996); or over the certification of the postmaster, whose
c. When the official conduct in question is official duty is to send notices of registered mail.
irregular on its face. (People v. Obmiranis, (Duarte v. Duran, G.R. No. 173038, 14 Sept. 2011)
GR. No. 181492, 16 Dec. 2008)
24. Presumption of Death;
14. A court or judge acting as such, whether in the
Philippines or elsewhere, was acting in the a. Absence of 7 years – It being unknown
lawful exercise of jurisdiction; whether, the absentee still lives, he or she
shall be presumed dead for all purposes,
NOTE: Lawful exercise of jurisdiction is except for those of succession;
presumed unless the record itself shows that b. Absence of 10 years – The absentee shall be
jurisdiction has not been acquired or the record considered dead for the purpose of opening
itself shows the absence of jurisdiction. his succession only after an absence of 10
years; and if he or she disappeared after the
15. All the matters within an issue raised in a case age of 75, absence of only 5 years is
were laid before the court and passed upon by sufficient;
it; c. The following shall be considered dead for
all purposes including the division of estate
16. All matters within an issue raised in a dispute among the heirs:
submitted for arbitration were laid before
arbitrators and passed upon by them; 1. Person on board a vessel lost during a
sea voyage, or an aircraft which is
17. Private transactions have been fair and regular; missing, who has not been heard of for
18. Ordinary course of business has been followed; 4 years since the loss of the vessel or
19. There was a sufficient consideration for a aircraft;
contract; 2. Member of the armed forces who has
20. Negotiable instrument was given or indorsed taken part in armed hostilities, and has
for a sufficient consideration; been missing for 4 years;
3. Person who has been in danger of
21. An indorsement of negotiable instrument was death under other circumstances and
made before the instrument was overdue and at whose existence has not been known
the place where the instrument is dated; for 4 years;
4. If a married person has been absent for
NOTE: Except where an endorsement bears 4 consecutive years, the spouse
date after the maturity of the instrument, every present may contract a subsequent
negotiation is deemed prima facie to have been marriage if he or she has well-founded
effected before the instrument was overdue. belief that the absent spouse is already
(Sec. 45, Act. No. 2031) dead; 2 years in case of disappearance
where there is danger of death under
22. A writing is truly dated; the circumstances hereinabove
provided. Before marrying again, the
23. Letter duly directed and mailed was received in spouse present must institute a
the regular course of the mail; summary proceeding as provided in
the Family Code and in the rules for
NOTE: For this presumption to arise, it must be declaration of presumptive death of
proved that the letter was properly addressed the absentee, without prejudice to the

Evidence
effect of re-appearance of the absent termination of the former marriage.

spouse.
32. A thing once proved to exist continues as long
25. Acquiescence resulted from a belief that the as is usual with things of that nature;
thing acquiesced in was conformable to the law 33. The law has been obeyed;
or fact;
34. A printed or published book, purporting to be
26. Things have happened according to the printed or published by public authority, was so
ordinary course of nature and ordinary habits printed or published;
of life;
35. A printed or published book, purporting to
27. Persons acting as co-partners have entered into contain reports of cases adjudged in tribunals of
a contract of co-partnership; the country where the book is published,
contains correct reports of such cases;
28. A man and woman deporting themselves as
husband and wife have entered into a lawful 36. A trustee or other person whose duty it was to
contract of marriage; convey real property to a particular person has
actually conveyed it to him when such
29. Property acquired by a man and a woman who presumption is necessary to perfect the title of
are capacitated to marry each other and who such person or his successor in interest;
live exclusively with each other as husband and
wife without the benefit of marriage or under 37. Except for purposes of succession, when 2
void marriage, has been obtained by their joint persons perish in the same calamity, and it is
efforts, work or industry; not shown who died first, and there are no
particular circumstances from which it can be
30. In cases of cohabitation by a man and a woman inferred, the survivorship is determined from
who are not capacitated to marry each other the probabilities resulting from the strength
and who have acquired properly through their and age of the sexes, according to the following
actual joint contribution of money, property or rules:
industry, such contributions and their
corresponding shares including joint deposits a. If both were under the age of 15 years, the
of money and evidences of credit are equal; older is deemed to have been survived;
b. If both were above the age of sixty, the
31. If the marriage is terminated and the mother younger is deemed to have survived;
contracted another marriage within 300 days c. If one is under 15 and the other above 60,
after such termination of the former marriage, the former is deemed to have survived;
these rules shall govern in the absence of proof d. If both be over 15 and under 60, and the sex
to the contrary; be different, the male is deemed to have
survived; if the sex be the same, the older;
a. A child born before 180 days after the e. If one be under 15 or over 60, and the other
solemnization of the subsequent between those ages, the latter is deemed to
marriage is considered to have been have survived.
conceived during the former marriage,
provided it be born within 300 days after 38. If there is a doubt, as between two or more
the termination of former marriage; persons who are called to succeed each other,
b. A child born after 180 days following the as to which of them died first, whoever alleges
celebration of the subsequent marriage is the death of one prior to the other, shall prove
considered to have been conceived the same; in the absence of proof, they shall be
during such marriage, even though it be considered to have died at the same time. (Sec.
born within the 300 days after the 3, Rule 131, ROC, as amended)

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Remedial Law
Q: Anastacia, who was then an 84-year old, A: NO. Documents consisting of entries in public
illiterate, rheumatic and bedridden mother, records made in the performance of a duty by a
agreed to the offer of petitioner to undertake the public officer are prima facie evidence of the facts
subdivision of her land in consideration for one stated therein; and all other public documents are
lot in the subdivision and a first preference to evidence, even against a third person, of the fact
buy any portion that might be for sale; but which gave rise to their execution and of the date of
taking advantage of the ignorance of the latter. Being a public document, the evidence to
respondents' family, petitioner managed to be presented to contradict the facts stated in the
have the DOS executed and misled Feliciana and DOS, which include the payment of the
Donata into believing that the document was the consideration, must be more than merely
instrument of subdivision. preponderant. Given the foregoing, the Court is not
persuaded by the CA's postulation that the oral
By the DOS, which was executed and notarized refutation by respondents Feliciana and Maria of
on November 18, 1992, Anastacia, with her the consideration stated in the DOS has reached the
husband's consent, purportedly sold her threshold of the required quantum of proof of clear
paraphernal property – a lot located at Barrio and convincing evidence. Their mere oral
Gaboc, Tagbilaran City to spouses Sepe for declaration that no consideration was paid to their
P15,000.00. Anastacia executed a notarized mother Anastacia is simply not enough given the
Notice of Adverse Claim, wherein she claimed presence of the following notarized and public
that "the second duplicate copy of the TCT was documents in petitioner's favor. Given the failure of
lost and was found in the possession of one respondents to adduce clear and convincing
Generoso Sepe without the knowledge and evidence to support their cause and overcome the
consent of the owner" and the "parcel of land presumptions granted by law in favor of the public
was never sold nor encumbered to anybody documents above-enumerated, the RTC did not err
else." in granting petitioner's demurrer to evidence.
(Generoso Sepe v. Heirs of Anastacia* Kilang, G.R. No.
Respondents, save Dominga, executed the COS 199766, 10 Apr. 2019, J. Caguioa)
for a consideration of P40,000.00, wherein they
confirmed absolutely and irrevocably the sale of Q: Lolita and Jasminia were close friends. They
the subject lot situated at Barrio Gaboc (now bought the subject lot in Bacoor, Cavite, and a
Cabawan District) made and executed by their few years later, they constructed a residential
parents, Anastacia and Fabian, in favor of house on the subject lot. Although Lolita has no
spouses Sepe, and warranted to defend their receipts, she shared in the cost of the
rights and peaceful possession of the subject lot. construction of the house from her income in the
Anastacia executed a notarized Notice of catering business and selling of various
Withdrawal of Adverse Claim, wherein she products. Jasminia executed a Deed of Absolute
alleged that she was made to sign an Adverse Sale (DAS) in favor of Lolita. Jasminia died.
Claim by Dominga and Donata; she did not Jasminia died. Lolita mortgaged the subject
understand its contents; and she remembered property two months after to Elizabeth. Spouses
that she had already sold the same land to Palugod, Jasminia's parents, filed a complaint
Spouses Sepe. for the Declaration of Nullity of the DAS and the
REM over the subject property arguing that
Respondents, represented by Maria, filed a case Jasminia was living with Lolita, a lesbian., who
(Civil Case No. 6703) for nullification of the sale took advantage of Jasminia, and caused the
and the TCT issued to petitioner. The counsel of latter to sign a DAS in her favour without
the petitioner filed a demurrer to evidence. The consideration. The RTC and the CA ruled that the
RTC issued an Order granting the demurrer to DAS is void for being simulated because Lolita
evidence and dismissing the case. However, the cannot present receipts to prove her payment of
CA reversed the RTC ruling. Is the CA correct? the consideration. Are the RTC and the CA
correct?

Evidence
A: NO. The Deed of Absolute Sale (DAS) is itself the

proof that the sale of the property is supported by G. PRESENTATION OF EVIDENCE
sufficient consideration. This is anchored on the (RULE 132)
disputable presumption of consideration inherent
in every contract under Article 1354 of the Civil
Code, which has been reiterated under Section 3,
1. EXAMINATION OF WITNESSES
Rule 131 of the Rules of Court. While petitioner
Lolita could not present receipts to show her
GR: The examination of witnesses presented in a
payments to the late Jasminia, her sworn testimony
trial or hearing shall be done in open court, and
which in certain portions were corroborated by
under oath or affirmation. Unless the witness is
pertinent documents, remains more credible than
incapacitated to speak, or the question calls for a
that of respondent Natividad. Indeed, the lack of
different mode of answer, the answers of the
receipts may be explained by the "close friendship"
witness shall be given orally. (Sec. 1, Rule 132, ROC,
between petitioner Lolita and Jasminia. (Mendoza v.
as amended)
Spouses Palugod, G.R. No. 220517, 20 June 2018, J.
Caguioa)
RATIO: Open court examination allows the court
the opportunity to observe the demeanor of the
Presumptions in Civil Actions and Proceedings
witness and allows the adverse party to cross-
examine the witness. (Riano, 2019)
In all civil actions and proceedings not otherwise
provided for by law or these Rules, a presumption
XPNs: The testimony of the witness may not be
imposes on the party against whom it is directed the
given in open court in the following cases:
burden of going forward with evidence to rebut or
meet the presumption.
1. In civil cases, by depositions pursuant to and
under the limitations of Rules 23 and 24
Inconsistent Presumptions
(Regalado, 2008);
If the presumptions are inconsistent, the

2. In criminal cases, by depositions or conditional
presumption that is founded upon weightier
examinations, pursuant to Secs. 12-15, Rule
considerations of policy shall apply. If
119, and Sec. 1, Rule 123, or by the records of
considerations of policy are of equal weight, neither
the preliminary investigation, under the
presumption applies. (Sec. 5, Rule 131, ROC, as
circumstances of Sec. 1(f) of Rule 115
amended)
(Regalado, 2008);
Presumption Against an Accused in Criminal

3. In criminal cases covered by the Rule on
Case
Summary Procedure, the affidavits of the
parties shall constitute the direct testimonies of
If a presumed fact that establishes guilt, is an
the witnesses who executed the same (Riano,
element of the offense charged, or negates a
2019);
defense, the existence of the basic fact must be
proved beyond reasonable doubt and the presumed
4. In civil cases covered by the Rules on Summary
fact follows from the basic fact follows from the
Procedure, the parties are merely required to
basic fact beyond reasonable doubt. (Sec. 6, Rule
submit the affidavits of their witnesses and
other pieces of evidence on the factual issues,
together with their position papers, setting
forth the law and the facts relied upon (Riano,
2019);

e

Remedial Law
5. Under the Judicial Affidavit Rule, the judicial Waiver of the Right to have the Witness Sworn
affidavit shall take the place of direct
testimonies of witnesses (Sec. 2, Judicial The right may be waived. If a party admits proof to
Affidavit Rule); be taken in a case without an oath, after the
testimony has been acted upon by the court, and
6. Matters regarding the admissibility and made the basis of a judgment, such party can no
evidentiary weight of electronic documents longer object to the admissibility of the testimony.
may be proved by affidavits subject to cross by He will be deemed to have waived the objection.
the adverse party (Sec. 1, Rule 9, Rules on (People v. Bisda, G.R. No. 140895, 17 July 2003)
Electronic Evidence);
Matters to be Recorded During Trial
7. If the witness is incapacitated to speak; and
8. The question calls for a different mode of The entire proceedings of a trial or hearing,
answer. including:
Oath vs. Affirmation 1. Questions propounded to a witness and his

answers thereto; and
OATH AFFIRMATION 2. The statements made by the judge or any of the
It is an outward pledge An affirmation is a parties, counsel, or witnesses with reference to
made under an substitute for an oath the case. (Sec. 2, Rule 132, ROC, as amended)
immediate sense of and is solemn and
responsibility to God or formal declaration NOTE: These shall be recorded by means of
a solemn appeal to the that the witness will shorthand or stenotype or by other means of
Supreme Being in tell the truth. recording found suitable by the court. (Ibid.)
attestation of the truth
of some statement. Exclusion and Separation of Witnesses
NOTE: The object of the The court, motu proprio or upon motion, shall order
rule is to affect the witnesses excluded so that they cannot hear the
conscience of the testimony of other witnesses. This rule does not
witness to compel him authorize the exclusion of:
to speak the truth, and
to lay him open to 1. A party who is a natural person;
punishment for perjury 2. A duly designated representative of a juridical
if he testifies falsely. entity which is not a party to the case;
3. A person whose presence is essential to the
NOTE: The option to take either an oath or presentation of the party’s cause; or
affirmation is given to the witness and not to the 4. A person authorized by a statute to be present.
court. (Riano, 2019)
The court may also cause witnesses to be kept
In order that one may be competent as a witness, it separate and to be prevented from conversing with
is not necessary that he has a definite knowledge of one another, directly through intermediaries, until
the difference between his duty to tell the truth after all shall have been examined. (Sec. 15, Rule 132, ROC,
being sworn and before, or that he is able to state it, as amended)
but it is necessary that he be conscious that there is
a difference. (People v. Bisda, G.R. No. 140895, 17 July XPNs:
2003) 1. An accused in a criminal case as it is his
constitutional right to be present at all stages of
the proceedings;

Evidence
2. Parties to the litigation will generally not be otherwise provided by law (right against self-
excluded, their presence usually being incrimination);
necessary to a proper management of the case;
NOTE: This refers to immunity statutes
3. Party in interest though not a party to the wherein the witness is granted immunity from
record and an agent of such party, if the criminal prosecution for offenses admitted in
presence of such agent is necessary; his testimony, e.g., under Sec. 8, R.A. 1379, the
law providing for the forfeiture of unlawfully
4. Officers and complaining witnesses are acquired property; and under P.D. 749, in
customarily excepted from the rule unless the prosecutions for bribery and graft. (Regalado,
circumstances warrant otherwise; and 2008)
5. Expert witnesses are not excluded until 5. Not to give an answer, which will tend to
production of evidence bearing upon the degrade his or her Reputation, unless it be to
question or subject as to which they have been the very fact at issue or to a fact from which the
called or unless liable to be influenced by the fact in issue would be presumed. But a witness
testimony of the other witnesses. (Herrera, must answer to the fact of his or her previous
1999) final conviction for an offense. (Sec. 3, Rule 132,
ROC, as amended)
Recantation of a Witness
Classifications of Immunity Statutes
Courts must not automatically exclude the original
statement based solely on the recantation. It should TRANSACTIONAL
USE IMMUNITY
determine which statement should be given IMMUNITY
credence through a comparison of the original and Prohibits the use of the Grants immunity to the
the new statements, applying the general rules of witness' compelled witness from
evidence. (PLDT v. Bolso, G.R. No. 159701, 17 Aug. testimony and its fruits prosecution for an
2007) in any manner in offense to which his
connection with the compelled testimony
Rights of a witness (P-D-E-A-R) criminal prosecution of relates.
the witness.
1. To be Protected from irrelevant, improper, or It is immunity from
insulting questions, and from harsh or insulting It is immunity from use prosecution by reason
demeanor; of any statement given or on the basis of the
by the witness. testimony.
NOTE: The trial court’s duty is to protect every By the grant of use- Transactional
witness against oppressive behavior of an and-derivative-use immunity is broader in
examiner and this is especially true where the immunity, a witness is the scope of its
witness is of advanced age. (Lee v. CA, G.R. No. only assured that his or protection. By its grant,
177861, 13 July 2010) her particular a witness can no longer
testimony and be prosecuted for any
2. Not to be Detained longer than the interests of evidence derived from offense whatsoever
justice require; it will not be used arising out of the act or
against him or her in transaction to which
3. Not to be Examined except only as to matters subsequent the testimony relates.
pertinent to the issue; prosecution.
4. Not to give an Answer which will tend to subject

him or her to a penalty for an offense unless

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Remedial Law
Obligation of a Witness in Open Court 1. Such question is directed to the very fact at
issue or to a fact from which the fact at issue
GR: A witness must answer questions, although his would be presumed; or
or her answer may tend to establish a claim against 2. If it refers to his previous final conviction for an
him or her. (Sec. 3, Rule 132, ROC, as amended) offense. (Regalado, 2008)
Refusal to answer as a witness constitutes direct
contempt. (Sec. 1, Rule 71, ROC, as amended) NOTE: A witness invited by the Senate who refused
to testify and arrested for contempt, cannot invoke
XPNs: A witness may validly refuse to answer on the the right against self-incrimination in a petition for
basis of the following: certiorari and prohibition. The said right may be
invoked only when the incriminating question is
1. Right against self-incrimination – If his being asked, since he has no way of knowing in
answer will tend to subject him to punishment advance the nature or effect of the questions to be
for an offense; or asked of him. That this right may possibly be
violated or abused is no ground for denying the
NOTE: The constitutional assurance of the right Senate Committees their power of inquiry. (In Re:
against self-incrimination is a prohibition Sabio, G.R. Nos. 174340, 174318 & 174177, 17 Oct.
against the use of physical or moral compulsion 2006)
to extort communications from the accused. It
is simply a prohibition against legal process to Prohibition on Narrative Form Testimony
extract from the accused’s own lips, against his
will, admission of his guilt. (Ong v. A witness’ testimony should be elicited by way of
Sandiganbayan & Office of the Ombudsman, G.R. questions and answers. (Secs. 1 and 2, Rule 132, ROC,
No. 126858, 16 Sept. 2005) Hence, a purely as amended) Thus, if the witness does a narration
mechanical act required to be done or produced instead of answering the question, the answer may
from the accused is not covered by the right be stricken out upon objection. (Sec. 39, Rule 132,
against self-incrimination. (Beltran vs Samson, ROC, as amended) The reason is that if a witness
G.R. No. 32025, 23 Sept. 1929) testifies in narrative form, the adverse party is
deprived of the opportunity to object to the
The privilege against self-incrimination must be testimony beforehand. (Riguera, 2020)
invoked at the proper time, and the proper time
to invoke it is when a question calling for an XPN; The court may allow a child witness to testify
incriminating answer is propounded. Also, a in a narrative form. (Sec. 19, Rule on Examination of
person who has been summoned to testify Child Witness)
cannot decline to appear, nor can he decline to
be sworn as a witness and no claim of privilege Refusal of a Witness to take the Witness Stand
can be made until a question calling for an
incriminating answer is asked. (Gonzales vs. GR: A witness may not refuse to take the witness
Secretary of Labor, G.R. No. L-6409, 05 Feb. stand.
1954).
XPNs:
2. Right against self-degradation – If his answer 1. An accused in a criminal case; or
will have a direct tendency to degrade his 2. A party who is not an accused in a criminal case
character. is allowed not to take the witness stand – in
administrative cases/proceedings that partook
XPNs to the XPN: A witness may not invoke the of the nature of a criminal proceeding or
right against self-degradation if: analogous to a criminal proceeding. As long as
the suit is criminal in nature, the party thereto
can altogether decline to take the witness stand.
It is not the character of the suit involved but

Evidence
the nature of the proceedings that controls. themselves of the protection provided for
(Rosete, et. al. v. Lim, et. al., G.R. No. 136051, 08 under the Act. (Sec. 3, R.A. No. 6981)
June 2006)
Q: As counsel of an accused charged with
Right against Self-incrimination NOT available homicide, you are convinced that he can be
under the Witness Protection Program utilized as a state witness. What procedure will
you take? (2006 BAR)
Any witness admitted into the program of the
Witness Protection, Security and Benefit Act cannot A: As counsel of an accused charged with homicide,
refuse to testify or give evidence or produce books, I would ask the prosecutor to recommend that the
documents, records or writings necessary for the accused be made a state witness. It is the prosecutor
prosecution of the offense or offenses for which he who must recommend and move for the acceptance
has been admitted into the Program on the ground of the accused as a state witness. The accused may
of the constitutional right against self-incrimination also apply under the Witness Protection Program.
but he shall enjoy immunity from criminal
prosecution and cannot be subjected to any penalty State Witness may be Liable for Contempt or
or forfeiture for any transaction, matter or thing Criminal Prosecution
concerning his compelled testimony or books,
documents, records and writings produced. (Sec. 14, If he fails or refuses to testify or to continue to testify
R.A. No. 6981) without just cause when lawfully obliged to do so or
if he testifies falsely or evasively, he shall be liable
Persons Eligible to the Witness Protection, to prosecution for perjury. If a State witness fails or
Security and Benefit Program refuses to testify, or testifies falsely or evasively, or
violates any condition accompanying such
Any person who has witnessed or has knowledge or immunity without just cause, as determined in a
information on the commission of a crime and has hearing by the proper court, his immunity shall be
testified or is testifying or about to testify before any removed and he shall be subject to contempt or
judicial or quasi-judicial body, or before any criminal prosecution. Moreover, the enjoyment of
investigating authority may be admitted provided all rights and benefits under R.A. 6981 shall be
that: deemed terminated. The witness may, however,
purge himself of the contumacious acts by testifying
a. The offense in which his testimony will be used at any appropriate stage of the proceedings. (Sec. 13,
is a grave felony as defined under the Revised R.A. No. 6981)
Penal Code, or its equivalent under special laws;
Order and Purpose of each stage of the
b. His testimony can be substantially examination of an Individual Witness
corroborated in its material points;
c. He or any member of his family within the 1. Direct examination – To elicit facts about the
second civil degree of consanguinity or affinity client’s cause of action or defense. (Riano, 2019)
is subjected to threats to life or bodily injury or
there is a likelihood that he will be killed, forced, 2. Cross examination
intimidated, harassed or corrupted to prevent a. To bring out facts favorable to counsel’s
him from testifying, or to testify falsely, or client not established by the direct
evasively, because or on account of his testimony; and
testimony; and b. To enable counsel to impeach or to impair
the credibility of the witness. (Ibid.)
d. He is not a law enforcement officer, even if he
would be testifying against the other law 3. Re-direct examination
enforcement officers. In such a case, only the
immediate members of his family may avail

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Remedial Law
a. To afford opportunity to the witness to Cross Examination

explain or supplement his answers given
during the cross-examination; and Upon the termination of the direct examination, the
b. To rehabilitate a witness whose credibility witness may be cross-examined by the adverse
has been damaged. (Ibid.) party on any relevant matter, with sufficient
fullness and freedom to test his or her accuracy and
4. Re-cross examination truthfulness and freedom from interest or bias, or
a. To overcome the proponent’s attempt to the reverse, and to elicit all important facts bearing
rehabilitate the witness; and upon the issue. (Sec 6, Rule 132, ROC, as amended)
b. To rebut damaging evidence brought out
during redirect examination. Scope of a Cross Examination
Order of Examination 1. American rule - restricts cross-examination to

facts and circumstances which are connected
The order in which an individiual witness may be with the matters that have been stated in the
examined iis as follows; direct examination of the witness.
1. Direct examination by the proponent.; 2. English rule – where a witness is called to

2. Cross-examination by the opponent.; testify to a particular fact, he becomes a witness
3. Re-direct examination by the propnent.; and for all purposes and may be fully cross-
4. Re-cross examination b the opponent. (Sec. 4, examined upon all matters material to the issue,
Rule 132, ROC, as amended) the examination not being confined to the
matters inquired about in the direct
Direct Examination examination.
The examination-in-chief of a witness by the party NOTE: Both rules are followed under Philippine
presenting him or her on the facts relevant to the jurisdiction. In general, the English Rule is being
issue. (Sec. 5, Rule 132, ROC, as amended) followed, which allows the cross-examination
to elicit all important facts bearing upon the
In light of the Judicial Affidavit Rule, most direct issue (Sec. 6, Rule 132, ROC, as amended) but this
examinations are now in the form of a judicial does not mean that a party, by doing so, is
affidavit. (Riguera, 2020) making the witness his own in accordance with
Sec. 5 of Rule 132. Conversely, the American
Q: Tony states on direct examination that he Rule is being followed as to the accused or a
once knew the facts being asked but he cannot hostile witness, who may only be cross-
recall them now. When handed a written record examined on matters covered by direct
of the facts, he testifies that the facts are examination. (Herrera, 1999)
correctly stated, but that he has never seen the
writing before. Is the writing admissible as past Doctrine of Incomplete Testimony
recollection recorded? Explain. (1996 BAR)
GR: When cross-examination cannot be done or
A: NO. For the written record to be admissible as completed due to causes attributable to the party
past recollection recorded, it must have been who offered the witness, the incomplete testimony
written or recorded by Tony or under his direction is rendered incompetent and should be stricken
at the time when the fact occurred, or immediately from the record. (Bachrach Motor Co., Inc. v. CIR, G.R.
thereafter, or at any other time when the fact was No. L-26136, 30 Oct. 1978)
fresh in his memory and he knew that the same was
correctly written or recorded. (Sec. 16, Rule 132, XPN: Where the prosecution witness was
ROC, as amended) But in this case, Tony has never extensively cross-examined on the material points
seen the writing before. and thereafter failed to appear and cannot be

Evidence
produced despite a warrant of his arrest, the party calling him or her, to explain or supplement
striking out is not warranted. (People v. Gorospe, G.R. his or he answers given during the cross-
No. 51513, 15 May 1984) examination. (Sec. 7, Rule 132, ROC, as amended)
Effect of Death or Absence of a Witness after the Q: On re-direct examination, may questions on
Direct Examination by the Proponent matters not dealt with during the cross-
examination be allowed?
1. If the witness was not cross-examined because
of causes attributable to the cross-examining A: YES. Questions on matters not dealt with during
party and the witness had always made himself the cross-examination, may be allowed by the court
available for cross-examination, the direct in its discretion.
testimony of the witness shall remain on record
and cannot be stricken off because the cross- Re-Cross Examination
examiner is deemed to have waived his right to
cross-examine. (Dela Paz v. IAC, G.R. No. 71537, Upon the conclusion of the re-direct examination,
17 Sept. 1987) the adverse party may re-cross examine the witness
on matters stated in his or her re-direct
2. If the witness was partially cross-examined but examination, and also on such other matters as may
died before the completion of his cross- be allowed by the court in its discretion. (Sec. 8, Rule
examination, his testimony on direct may be 132, ROC, as amended)
stricken out but only with respect to the
testimony not covered by the cross- Recalling the Witness
examination. (People v. Señeris, G.R. No. L-48883,
06 Aug. 1980) GR: After the examination of a witness by both sides
has been concluded, the witness cannot be recalled
3. The absence of a witness is not sufficient to without leave of court. Recalling a witness is a
warrant the striking out of his testimony for matter of judicial discretion and it shall be guided by
failure to appear for further cross-examination the interests of justice. (Sec. 9, Rule 132, ROC, as
where the witness has already been sufficiently amended)
cross-examined, and the matter on which cross-
examination is sought is not in controversy. XPNs:
(Ibid.) 1. The examination has not been concluded; or
2. If the recall of the witness was expressly
GR: The party who offered the testimony of a reserved by a party with the approval of the
witness is bound by such testimony. court. In these two cases the recall of a witness
is a matter of right. (Regalado, 2008)
XPNs:
1. In the case of a hostile witness; NOTE: Something more than the bare assertion of
2. Where the witness is the adverse party or the the need to propound additional questions is
representative of a juridical person which is the essential before the court's discretion may
adverse party; and rightfully be exercised to grant or deny recall. There
3. When the witness is not voluntarily offered but must be a satisfactory showing of some concrete,
is required by law to be presented by the substantial ground for the recall. For instance, that
proponent, as in the case of subscribing particularly identified material points were not
witnesses to a will. (Regalado, 2008) covered in the cross-examination, or that
particularly described vital documents were not
Re-Direct Examination presented to the witness whose recall is prayed for,
or that the cross-examination was conducted in so
After the cross-examination of the witness has been inept a manner as to result in a virtual absence
concluded, he or she may be re-examined by the thereof. Absent such particulars, to repeat, there

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Remedial Law
would be no foundation for a trial court to authorize on Examination of a Child Witness, A.M. No. 004-
the recall of any witness. (People v. Rivera, G.R. No. 07-SC)
98376, 16 Aug. 1991)
Misleading Question
LEADING AND MISLEADING QUESTIONS
A misleading question is one which assumes as true
Leading question a fact not yet testified to by the witness, or contrary
to that which he or she has previously stated. It is
It is one which suggests to the witness the answer NOT allowed. (Sec. 10, Rule 132, ROC, as amended)
which the examining party desires. A leading
question is generally not allowed. (Sec. 10, Rule 132, Impeachment of witness
ROC, as amended) It is a technique employed usually as part of cross-
examination to discredit a witness by attacking his
The test whether a question is leading or not is the credibility. (Riano, 2019)
suggestiveness of the conduct.
Ways of Impeaching an Adverse Party’s Witness
When a leading question is allowed (C-U-P-D-A-
J) 1. By contradictory evidence;
2. By evidence that his or her general reputation
A leading question is allowed: for truth, honesty or integrity is bad; or
3. By evidence that he or she has made at other
1. On Cross-examination; times statements inconsistent with his or her
2. Of an Unwilling witness or hostile witness; present testimony. (Sec. 11, Rule 132, ROC, as
3. On Preliminary matters; amended)
4. When there is Difficulty in getting direct and
intelligible answers from a witness who is NOTE: An adverse party’s witness may not be
ignorant, or a child of tender years, or is of impeached by evidence of particular wrongful
feeble mind, or a deaf-mute; acts, except that it may be shown by the
examination of the witness, or record of the
NOTE: A witness may be considered as judgment, that he or she has been convicted of
unwilling or hostile only if so declared by the an offense. (Ibid.)
court upon adequate showing of his or her
adverse interest, unjustified reluctance to The other modes of impeaching a witness are:
testify or his or her having misled the party into
calling him or her to the witness stand. (Sec. 13, 1. By involving him during cross-examination in
Rule 132, ROC, as amended) contradiction;
2. By showing the impossibility or improbability
5. Of a witness who is an Adverse party or an of his testimony;
officer, director, or managing agent of a public 3. By proving action or conduct of the witness
or private corporation or of a partnership or inconsistent with his testimony; and
association which is an adverse party; (Sec. 10, 4. By showing bias, interest or hostile feeling
Rule 132, ROC, as amended); against the adverse party. (Herrera, 1999)
6. A child of tender years may be asked leading Impeachment by Evidence of Conviction of

questions; (Sec. 10(c), Rule on Examination of a Crime
Child Witness, A.M. No. 004-07-SC)
GR: For the purpose of impeaching a witness,
7. In all stages of examination of a child if the same evidence that he or she has been convicted by final
will further the interests of justice. (Sec. 20, Rule judgment of a crime shall be admitted if:

Evidence
1. The crime was punishable by a penalty in excess Impeachment of the Adverse Party as a Witness
of one (1) year; or
2. The crime involved moral turpitude, regardless That the witness is the adverse party does not
of the penalty. necessarily mean that the calling party will not be
bound by the former’s testimony. The fact remains
XPN: Evidence of a conviction is not admissible if that it was at his instance that his adversary was put
the conviction has been the subject of an amnesty or on the witness stand. He is not bound only in the
annulment of the conviction. (Sec. 12, Rule 132, ROC, sense that he may contradict him by introducing
as amended) other evidence to prove a statement of facts
contrary to what the witness testifies. (Gaw v. Chua,
Impeachment of a Witness by Evidence of G.R. No. 160855, 16 Apr. 2008)
Particular Wrongful Acts
Unlike an ordinary witness, the calling party may
GR: A witness may NOT be impeached by evidence impeach an adverse witness in all respects as if he
of particular wrongful acts. had been called by the adverse party, except by
evidence of his bad character. Under a rule
XPN: If it may be shown by the examination of the permitting the impeachment of an adverse witness,
witness, or the record of the judgment, that he or although the calling party does not vouch for the
she has been convicted of an offense. (Sec. 11, Rule witness’ veracity, he is nonetheless bound by his
132, ROC, as amended) testimony if it is not contradicted or remains
unrebutted. (Ibid.)
Impeachment by a Party of his of his or her Own
Witness How the Witness is Impeached by Evidence of
Inconsistent Statements (Laying the Predicate)
GR: The party presenting the witness is not allowed
to impeach the credibility of such witness. It is the duty of a party trying to impugn the
testimony of a witness by means of prior or
XPN: The witness is an: subsequent inconsistent statements, whether oral
or in writing, to give the witness a chance to
1. Unwilling or hostile; reconcile his conflicting declarations, such that it is
only when no reasonable explanation is given by
NOTE: A witness may be considered as him that he should be deemed impeached. (People v.
unwilling or hostile only if so declared by the Sambahon, G.R. No. 182789, 03 Aug. 2010)
court upon showing adequate showing of his or
adverse interest, unjustified reluctance to Laying the Predicate in Impeaching a Witness by
testify, or his or her having misled the party into Evidence of Prior Inconsistent Statements
calling him or her to the witness stand.
1. The prior inconsistent statements must be
2. Adverse party; or related to him or her, with the circumstances of
3. Officer, director, or managing agent of a public the times and places and the persons present;
or private corporation or of a partnership or
association which is an adverse party. (Sec. 13, 2. The witness must be asked whether he or she
Rule 132, ROC, as amended) made such statements, and if so, be allowed to
explain them; and
NOTE: In these instances, such witnesses may be
impeached by the party presenting him or her in all 3. If the statements be in writing it must be shown
respects as if he had been called by the adverse to the witness before any question is put to him
party, except by evidence of his or her bad or her concerning them. (Sec. 14, Rule 132, ROC,
character. (Ibid.) as amended) (1996 BAR)

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Remedial Law
NOTE: Contradicting testimony given subsequently PRIOR

CONTRADICTORY
does not necessarily discredit the previous INCONSISTENT
EVIDENCE
testimony if the contradiction is satisfactorily STATEMENTS
explained. There is no rule which states that a Refer to statements,
Refers to other
previous testimony is presumed to be false merely oral or documentary,
testimony of the same
because a witness now says that the same is not made by the witness
witness, or other
true. A testimony solemnly given in court should not sought to be
evidence presented by
be lightly set aside. Before this can be done both the impeached on
him in the same case,
previous testimony and the subsequent ne should occasions other than
but not the testimony
be carefully scrutinized – in other words, all the the trial in which he is
of another witness.
expedients devised by man to determine the testifying.
credibility of witnesses should be utilized to
determine which of the two contradicting Evidence of the Good Character of a Witness
testimonies represents the truth. (OCA v. Morante,
A.M. No. P-02-1555, 16 Apr. 2004) GR: Evidence of the good character of a witness is
not admissible for the purpose of proving action in
As between statements made during the conformity therewith on a particular occasion. (Sec.
preliminary investigation of the case and the 54, Rule 130, ROC, as amended)
testimony of a witness in open court, the latter
deserves more credence. Preliminary investigations XPNs:
are commonly fairly summary or truncated in 1. In Criminal cases:
nature, being designed simply for the
determination, not of guilt beyond reasonable a. The character of the offended party may be
doubt, but of probable cause prior to the filing of an proved if it tends to establish in any
information in court. (People v. Buduhan, G.R. No. reasonable degree the probability or
178196, 06 Aug. 2008) improbability of the offense charged.
Inapplicability of the Rule b. The accused may prove his or her good
moral character, pertinent to the moral trait
If the prior inconsistent statement appears in a involved in the offense charged. However,
deposition of the adverse party, and not a mere the prosecution may not prove his or her
witness, that adverse party who testifies may be bad moral character unless on rebuttal.
impeached without laying the predicate, as such (Sec. 54, Rule 130, ROC, as amended)
prior statements are in the nature of admissions of
said adverse party. (Regalado, 2008) 2. In Civil cases:
The reasons for laying the predicate are: Evidence of the moral character of a party in a
civil case is admissible only when pertinent to
1. To avoid unfair surprise to the adversary; the issue of character involved in the case. (Sec.
2. To save time, as an admission by the witness 54, Rule 130, ROC, as amended)
may make the extrinsic proof necessary; and
3. To give the witness, in fairness to him, a chance 3. In Criminal and Civil cases
to explain the discrepancy. (Herrera, 1999)
Evidence of the good moral character of a
witness is not admissible until such character
has been impeached. (Sec. 54, Rule 130, ROC, as
amended)

Evidence
NOTE: in all cases in which evidence of character or immediately correctly stated

a trait of character of a person is admissible, proof thereafter; or the transaction
may be made by testimony as to reputation or by when made.
testimony in the form of an opinion. b. At any other
time when
In cases in which character or a trait of character of the fact was
a person is an essential element of a charge, claim or fresh in his
defense, proof may also be made of specific memory and
instances of that person’s conduct. (Sec. 54, Rule 130, he knew that
ROC, as amended) the same was
correctly
When the Witness may Refer to Memorandum recorded.
Entitled to greater Entitled to lesser
A witness may be allowed to refresh his or her weight. weight.
memory respecting a fact by anything written or Evidence is the writing
Evidence is the
recorded by himself or herself, or under his or her or record (the
testimony.
direction, at the time when the fact occurred, or memorandum).
immediately thereafter, or at any other time when Rule of evidence
the fact was fresh in his or her memory and he or affected is competency Rule of evidence
she knew that the same was correctly written or of witness, affected is the best
recorded. (Sec. 16, Rule 132, ROC, as amended) examination of witness evidence rule.
(laying the predicate).
NOTE: The writing or record must be produced and The witness simply
may be inspected by the adverse party, who may, if testifies that he knows
he or she chooses, cross-examine the witness upon that the memorandum Witness must swear
it and may read it in evidence. (Ibid.) is correctly written by that the writing
him or under his correctly states the
NOTE: A witness may also testify from such a direction. There is no transaction. (Regalado,
writing or record, though he or she retains no need to swear that the 2008)
recollection of the particular facts, if he or she is able writing correctly states
to swear that the writing or recording correctly the transaction.
stated the transaction when made. Such evidence
must be received with caution. (Ibid.) Right of the adverse party when a writing is
shown to a witness
PRESENT PAST RECOLLECTION
RECOLLECTION RECORDED Whenever a writing or record is shown to a witness,
REVIVED it must be produced and may be inspected by the
Applies if the witness Applies where the adverse party, who may, if he or she chooses, cross-
remembers the facts witness does not recall examine the witness upon it and may read it in
regarding his entries. the facts involved. evidence. (Sec. 18, Rule 132, ROC, as amended)
Requisites: Requisites:
1. Memorandum has 1. Witness retains no
been written by recollection of the
him or under his particular facts;
direction; and and
2. Written by him: 2. But he is able to

a. When the fact swear that the
occurred or record or writing

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Remedial Law
RULE ON EXAMINATION OF CHILD WITNESS testimony of the child and that it be recorded and
(A.M. No. 004-07-SC) preserved on videotape. If the court finds that the
child will not be able to testify in open court at trial,
The rule shall govern the examination of child it shall issue an order that the deposition of the child
witnesses in all criminal and non-criminal be taken and preserved by videotape. (Sec. 27, A.M.
proceedings of children who are: (V-A-W) No. 004-07-SC)
1. Victims; Live-link TV Testimony

2. Accused; and
3. Witnesses to a crime. The court may order by an application may be made
by the prosecutor, counsel or guardian ad litem for
Child witness the testimony of the child to be taken in a room
outside the courtroom and be televised to the
1. Any person who at the time of giving testimony courtroom by live-link television, if there is a
is below the age of 18 years old; or likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel
2. A person over 18 years of age, if he/she is or the prosecutor as the case may be. (Sec. 25, A.M.
found by the court as unable to fully take care No. 004-07-SC; Riano, 2019)
of himself or protect himself from abuse,
neglect, cruelty, exploitation or discrimination Upon an application made by the prosecutor,
because of physical or mental disability or counsel or guardian ad litem, the court may order
condition. (Sec. 4(a), A.M. No. 004-07-SC) for the testimony of the child to be taken in a room
outside the courtroom and be televised to the
Presumption of Competency courtroom by live-link television, if there is a
likelihood that the child would suffer trauma from
GR: Every child is presumed qualified to be a testifying in the presence of the accused, his counsel
witness. The burden of proof to rebut such or the prosecutor as the case may be. (Sec. 25, A.M.
presumption lies in the party challenging his No. 004-07-SC)
competence.
The kind of trauma contemplated is trauma that
XPN: When the court finds that substantial doubt would impair the completeness or truthfulness of
exists regarding the ability of the child to perceive, the testimony of the child.
remember, communicate, distinguish from
falsehood, or appreciate the duty to tell the truth in Hearsay Exception in Child Abuse Cases
court, the judge shall conduct a competency
examination of a child. (Sec. 6, A.M. No. 004-07-SC) A statement made by a child describing any act or
attempted act of child abuse, not otherwise
Examination of a Child Witness admissible under the hearsay rule, may be admitted
in evidence in any criminal or non-criminal
The examination of a child witness presented in a proceeding. In ruling on the admissibility of such
hearing or any proceeding shall be done in open hearsay statement, the court shall consider the time,
court. Unless the witness is incapacitated to speak, content and circumstances thereof which provide
or the question calls for a different mode of answer, sufficient indicia of reliability. It shall consider the
the answers of the witness shall be given orally. (Sec. following factors:
8, A.M. No. 004-07-SC)
a. Whether there is a motive to lie;
Videotaped Deposition b. The general character of the declarant child;
c. Whether more than one person heard the
The prosecutor, counsel, or guardian ad litem may statement;
apply for an order that a deposition be taken of the d. Whether the statement was spontaneous;

Evidence
e. The timing of the statement and the signs a written affirmation that he has received
relationship between the declarant child and and read a copy of the protective order; that he
witness; submits to the jurisdiction of the court with
f. Cross-examination could not show the lack of respect to the protective order; and that in case
knowledge of the declarant child; of violation thereof, he will be subject to the
g. The possibility of faulty recollection of the contempt power of the court.
declarant child is remote; and
h. The circumstances surrounding the statement 4. Each of the tape cassettes and transcripts
are such that there is no reason to suppose the thereof made available to the parties, their
declarant child misrepresented the counsel, and respective agents shall bear the
involvement of the accused. (Sec. 28, A.M. No. following cautionary notice:
004-07-SC) "This object or document and the contents
thereof are subject to a protective order issued
Sexual Abuse Shield Rule by the court in (case title), (case number). They
shall not be examined, inspected, read, viewed,
GR: The following evidence is not admissible in any or copied by any person, or disclosed to any
criminal proceeding involving alleged child sexual person, except as provided in the protective
abuse: order. No additional copies of the tape or any
of its portion shall be made, given, sold, or
a. Evidence offered to prove that the alleged shown to any person without prior court
victim engaged in other sexual behavior; and order. Any person violating such protective
b. Evidence offered to prove the sexual order is subject to the contempt power of the
predisposition of the alleged victim. court and other penalties prescribed by law."
XPN: Evidence of specific instances of sexual 5. No tape shall be given, loaned, sold, or shown
behavior by the alleged victim to prove that a to any person except as ordered by the court.
person other than the accused was the source of
semen, injury, or other physical evidence shall be 6. Within thirty (30) days from receipt, all copies
admissible. (Sec. 30, A.M. No. 004-07-SC) of the tape and any transcripts thereof shall be
returned to the clerk of court for safekeeping
Protective Order unless the period is extended by the court on
motion of a party.
Any videotape or audiotape of a child that is part of
the court record shall be under a protective order 7. This protective order shall remain in full force
that provides as follows: and effect until further order of the court. (Sec.
31, A.M. No. 004-07-SC)
1. Tapes may be viewed only by parties, their
counsel, their expert witness, and the guardian Q: AA, a twelve-year-old girl, while walking
ad litem. alone met BB, a teenage boy who befriended her.
Later, BB brought AA to a nearby shanty where
2. No tape, or any portion thereof, shall be he raped her. The Information for rape filed
divulged by any member of the court staff, the against BB states: “On or about October 30,
prosecuting attorney, the defense counsel, the 2015, in the City of S.P. and within the
guardian ad litem, agents of investigating law jurisdiction of this Honorable Court, the
enforcement agencies, and other persons as accused, a minor, 15 years old with lewd design
determined by the court to any other person, and by means of force, violence, and
except as necessary for the trial. intimidation, did then and there, willfully,
unlawfully and feloniously had sexual
3. No person shall be granted access to the tape, intercourse with AA, a minor, 12 years old,
its transcription or any part thereof unless he against the latter’s will and consent.”

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Remedial Law
At the trial, the prosecutor called to the witness is not included in this enumeration. Such
stand AA as his first witness and manifested that recording does not make the private writing
he be allowed to ask leading questions in itself a public document so as to make it
conducting his direct examination pursuant to admissible without authentication, e.g., birth
the Rule on the Examination of a Child Witness. certificate recorded in the NSO is a public
BB’s counsel objected on the ground that the record, but it is still a private document.
prosecutor has not conducted a competency (Peralta & Peralta, 2020)
examination on the witness, a requirement
before the rule cited can be applied in the case. 3. The writing is a notarial document
Is BB’s counsel correct? (2015 BAR) acknowledged, proved or certified (Sec. 30, Rule
A: NO. BB’s counsel is not correct. Every child is
presumed qualified to be a witness. (Sec. 6, A.M. No. 4. The genuineness and authenticity of an
004-07-SC) To rebut the presumption of actionable document have not been specifically
competence enjoyed by a child, the burden of proof denied under oath by an adverse party (Sec 8,
lies on the party challenging his competence. Here, Rule 8, ROC, as amended);
AA, a 12-year old child witness who is presumed to
be competent, may be asked leading questions by 5. When such genuineness and due execution are
the prosecutor in conducting his direct examination immaterial to the issue;
pursuant to the RECW and the Revised Rules on
Criminal Procedure. (People v. Santos, G.R. No. 6. The genuineness and authenticity of the
171452, 17 Oct. 2008) In order to obviate the document have been admitted (Sec 4, Rule 129,
counsel’s argument on the competency of AA as ROC, as amended); and
prosecution witness, the judge motu proprio
conducted his voir dire examination of AA. 7. The document is not being offered as genuine.
2. AUTHENTICATION AND PROOF OF
DOCUMENTS Classes of Documents
Meaning of Authentication For purposes of their presentation in evidence,

documents are either public or private. (Sec. 19, Rule
It is the process of proving the due execution and 132, ROC, as amended)
genuineness of a document.
Public document vs. Private document
NOTE: Not only objects but also documents
introduced in evidence need to be authenticated. It PUBLIC DOCUMENT PRIVATE DOCUMENT
is a preliminary step in showing the admissibility of What comprises it
an evidence. (Riano, 2019) 1. The written official
acts, or records of
When Authentication is NOT Required the official acts of
the sovereign
1. The writing is an ancient document (Sec. 21, authority, official
All other writings are
Rule 132, ROC, as amended); bodies and
private. (Sec. 19, Rule
tribunals, and
2. The writing is a public document or record (Sec. public officers,
19, Rule 132, ROC, as amended); whether of the
Philippines, or of a
NOTE: A private document required by law to foreign country;
be recorded, while it is transformed into a
public document by the “public record” thereof,

Evidence
2. Documents NOTE: Church registries of births, marriages and

acknowledged deaths are no longer public writings nor are they
before a notary kept by duly authorized public officials. They are
public except last private writings and their authenticity must
wills and therefore be proved, as are all other private writings
testaments; in accordance with the rules. (Llemos v. Llemos, G.R.
No. 150162, 26 Jan. 2007)
3. Documents that
are considered How to Prove the Due Execution and
public documents Authenticity of a Private Document
under treaties and
conventions which Before any private document offered as authentic is
are in force received in evidence, its due execution and
between the authenticity must be proved by any of the following
Philippines and the means:
country of source;
and 1. By anyone who saw the document executed or
written;
4. Public records, 2. By evidence of the genuineness of the signature
kept in the or handwriting of the maker; or
Philippines, of 3. By other evidence showing its due execution
private documents and authenticity,
required by law to
be entered therein. Any other private document need only be identified
(Sec. 19, Rule 132, as that which it is claimed to be. (Sec. 20, Rule 132,
ROC, as amended) ROC, as amended)
As to authenticity and admissibility as
evidence Related jurisprudence
Admissible as evidence Before any private
without need of further document offered as In addition to the modes of authenticating a private
proof of its authentic is received in document under Sec. 20, Rule 132 of the ROC, as
genuineness and due evidence, its due amended, American jurisprudence also recognizes
execution execution and the doctrine of self-authentication – where the
authenticity must first facts in writing could only have been known by the
be proved. writer; and the rule of authentication by the adverse
As to persons bound party – where the reply of the adverse party refers
Evidence even against Binds only the parties to and affirms the sending to him and his receipt of
third persons, of the who executed them or the letter in question, a copy of which the proponent
fact which gave rise to their privies, insofar as is offering as evidence. (Regalado, 2008)
its due execution and due execution and date
to the date of the latter of the document are When Evidence of Authenticity of a Private
concerned Writing is NOT Required
As to validity of certain transactions
Certain transactions 1. When the private document is more than thirty
must be contained in a (30) years old (ancient document/authentic
public document; document rule) (Sec. 21, Rule 132, ROC, as
otherwise, they will amended);
not be given any
validity.

e

Remedial Law
2. When the genuineness and authenticity of an Genuineness of Handwriting

actionable document have not been specifically
denied under oath by the adverse party; Handwriting may be proved by:
3. When the genuineness and authenticity of the 1. A witness who actually saw the person writing
document have been admitted; and the instrument;
2. A person who is familiar or has acquired
4. When the document is not offered as authentic knowledge of the handwriting of such person,
as implied. (Patula v. People, G.R. No. 164457, 11 his opinion as to the handwriting being an
Apr. 2012) exception to the opinion rule;
3. A comparison by the court of the questioned
Requisites of Ancient Document/Authentic handwriting from the admitted genuine
Document Rule (2011 BAR) specimens thereof; or
4. An expert witness. (Secs. 20 & 22, Rule 132; Sec.
1. That the private document be more than 30 52, Rule 130, ROC, as amended)
years old;
NOTE: The law makes no preference, much less
2. That it be produced from a custody in which it distinction among and between the different means
would naturally be found if genuine; and stated above in proving the handwriting of a person.
Courts are not bound to give probative value or
NOTE: Ancient documents are considered from evidentiary value to the opinions of handwriting
proper custody if they come from a place from experts, as resort to handwriting experts is not
which they might reasonably be expected to be mandatory. (Heirs of Salud v. Rural Bank of Salinas,
found. Custody is proper if it is proved to have G.R. No. 202756, 06 Apr. 2016)
had a legitimate origin or if the circumstances
of the particular case are such as to render such Comparison as a Mode of Authentication
an origin probable. If a document is found
where it would not properly and natural be, its Use of comparison technique to establish
absence from the proper place must be authenticity actually involves two (2) levels of
satisfactorily accounted for. authentication, i.e., authentication of the specimen
and authentication of the offered exhibit. In order to
The requirement of proper custody was met establish the requisite connective relevance, the
when the ancient document in question was item or document in question must be compared
presented in court by the proper custodian with an item the authenticity of which has been
thereof who is an heir or the person who would demonstrated. Authenticity of the specimen, then, is
naturally keep it. (Cerado-Siga v. Cerado, Jr., G.R. a logical prerequisite to the procedure. (Peralta &
No. 185374, 11 Mar. 2015) Peralta, 2020)
3. That it is unblemished by any alteration or The testimony of a handwriting expert is not

circumstances of suspicion. (Sec. 21, Rule 132, indispensable to the examination or the comparison
ROC, as amended) of handwritings in cases of forgery. The judge must
conduct an examination of the questioned signature
NOTE: This rule applies only if there are no other in order to arrive at a reasonable conclusion as to its
witnesses to determine authenticity. authenticity. The opinions of handwriting experts
are not binding upon courts, especially when the
question involved is mere handwriting similarity or
dissimilarity, which can be determined by a visual
comparison of specimens of the questioned
signatures with those of the currently existing ones.

Evidence
(Pontaoe v. Pontaoe, G.R. Nos. 159585 & 165318, 22 officer, such as entries made by the Civil Registrar in
Apr. 2008) the books of registries, or by a ship captain in the
ship’s logbook. The certifications are conclusions
It is also hornbook doctrine that the opinions of unsupported by adequate proof, and thus have no
handwriting experts, even those from the NBI and probative value. Certainly, the certifications cannot
the PC, are not binding upon courts. This principle be considered prima facie evidence of the facts
holds true especially when the question involved is stated therein. (Republic v. T.A.N. Properties Inc., G.R.
mere handwriting similarity or dissimilarity, which No. 154953, 26 June 2008)
can be determined by a visual comparison of
specimens of the questioned signatures with those Q: G&S Transportation submits that the USAID
of the currently existing ones. (Multi-International Certification being a private document cannot
Business Data System, Inc. v. Martinez, G.R. No. be admitted as evidence since it is inadmissible
175378, 11 Nov. 2015) and was not properly authenticated nor
identified in court by the signatory thereof. The
Handwriting experts are usually helpful in the opposing party contends that the USAID
examination of forged documents because of the Certification is a public document and was
technical procedure involved in analyzing them. But properly admitted in evidence, because Jose
resort to these experts is not mandatory or Marcial’s widow, witness Ruby Bueno Ochoa,
indispensable to the examination or the comparison was able to competently testify as to the
of handwriting. A finding of forgery does not depend authenticity and due execution of the said
entirely on the testimonies of handwriting experts, Certification and that the signatory Jonas Cruz
because the judge must conduct an independent personally issued and handed the same to her.
examination of the questioned signature in order to The court ruled that the USAID Certification is a
arrive at a reasonable conclusion as to its public document. Is the court’s ruling correct?
authenticity. (Ibid.)
A: YES. The USAID Certification is a public
Public Documents as Evidence document, hence, does not require authentication.
Sec. 19 (a), Rule 132 of the Rules of Court provides
When a public officer in the performance of his or that public documents are the written official acts,
her duty makes an entry in the public record, the or records of the official acts of the sovereign
document of such entry is deemed prima facie authority, official bodies and tribunals, and public
evidence of the facts stated in the entry. (Sec. 24, Rule officers, whether of the Philippines, or of a foreign
132, ROC, as amended) Its probative value may country.
either be substantiated or nullified by other
competent evidence. Here, USAID is an official government agency of a
foreign country, the United States. The authenticity
NOTE: Public or official records of entries made in and due execution of said Certification are already
excess of official duty are not admissible in presumed. The USAID Certification could very well
evidence. As to matters which the officer is not be used as basis for the award for loss of income to
bound to record, his certificate, being extrajudicial, the heirs. (Heirs of Jose Marcial Ochoa v. G & S
is merely the statement of a private person. Transport Corporation, G.R. No. 170071, 16 July
2012)
Related Jurisprudence
Q: Sharwin purchased a townhouse from Riel. A
The CENRO and Regional Technical Director, FMS- notarized Deed of Absolute Sale was executed by
DENR, certifications do not fall within the class of Riel in favor of Sharwin. The same was also
public documents contemplated in the first notarized and the purchase price was paid in
sentence of Section 23 of Rule 132. The full. However, it was later found that all of the
certifications do not reflect entries in public records documents that were in Sharwin's possession
made in the performance of a duty by a public were falsified. A case was then filed by Sharwin

e

Remedial Law
against Riel which was dismissed by the RTC for 2. If the office in which the record is kept is in a
lack of merit. On appeal, the CA held that since a foreign country,
notarized document enjoys the presumption of
regularity, and only clear, strong, and a. An official publication thereof; or
convincing evidence can rebut such b. By a copy attested by the officer having the
presumption, the evidence presented by Riel legal custody of the record, or by his deputy
was not enough to refute the notarized Deed of AND a certificate that such officer has the
Absolute Sale. The Motion for Reconsideration custody. (Apostille Certificate or its
filed by Riel was also denied by the CA. Thus, a equivalent) (Sec. 24, Rule 132, ROC, as
petition was filed before the SC questioning the amended)
CA's decision.
NOTE: If the office in which the record is
Is the CA correct in upholding the sale on the kept is in a foreign country, which is a
basis of the presumption of regularity of the contracting party to a treaty or convention
supposedly notarized Deed of Absolute Sale? to which the Philippines is also a party, or
considered a public document under such
A: NO. In Suntay v. Court of Appeals, the Court held treaty or convention pursuant to paragraph
though the notarization of the deed of sale in (c) of Section 19, the certificate or its
question vests in its favor the presumption of equivalent shall be in the form prescribed
regularity, it is not the intention nor the function of by such treaty or convention subject to
the notary public to validate and make binding an reciprocity granted to public documents
instrument never, in the first place, intended to have originating from the Philippines.
any binding legal effect upon the parties thereto.
The intention of the parties still and always is the For documents originating from a foreign
primary consideration in determining the true country which is not a contracting party to
nature of a contract. a treaty or convention, the certificate may
be made by a secretary of the embassy or
Notarization per se is not a guarantee of the validity legation, consul general, consul, vice-
of the contents of a document. The presumption of consul, or consular agent or by any officer
regularity of notarized documents cannot be made in the foreign service of the Philippines
to apply and may be overthrown by highly stationed in the foreign country in which
questionable circumstances, as may be pointed out the record is kept, and authenticated by the
by the trial court. (Dizon v. Matti, Jr. G.R. No. 215614, seal of his or her office. (Sec. 24, Rule 132,
27 Mar. 2019, J. Caguioa) ROC, as amended)
Proof of Official Record A document that is accompanied by a

certificate or its equivalent may be
Official records are written official acts, or records presented in evidence without further
of the official acts of the sovereign authority, official proof, the certificate or its equivalent being
bodies and tribunals, and public officers, e.g., a prima facie evidence of the due execution
written foreign law. Official records may be and genuineness of the document involved.
evidenced by: The certificate shall not be required when
or convention between a foreign country
1. If it is within the Philippines: and the Philippines has abolished the
requirement or has exempted the
a. An official publication thereof; or document itself from this formality.
b. By a copy attested by the officer having the
legal custody of the record, or by his NOTE: Upon failure to comply with the above-
deputy. (Sec. 24, Rule 132, ROC, as amended) mentioned requirements, courts will apply the
doctrine of processual presumption.

Evidence
Q: Ellen Harper and her son, Jonathan Harper without the certification or authentication required
filed a case for damages against Shangri-La under Section 25, Rule 132 of the Rules of Court, is
Hotel and Resort, Inc. for the death of Christian not admissible in evidence in Philippine courts. The
Harper. To prove heirship of the plaintiffs- failure to have the SPA authenticated is a question
appellees, they presented several documents of jurisdiction. (Riano, 2019 citing Lopez v. CA, G.R.
(Birth Certificates, Marriage Certificate, and No. 77008, 29 Dec. 1987)
Certificate from the Oslo Probate Court) which
were all kept in Norway. The documents had Irremovability of Public Records
been authenticated by the Royal Norwegian
Ministry of Foreign Affairs and bore the official GR: Any public record must not be removed from
seal of the Ministry and signature of one Tanja the office in which it is kept.
Sorlie. The documents were also accompanied
by an Authentication by the Consul, Embassy of XPN: Upon order of a court where the inspection of
the Republic of the Philippines in Stockholm, the record is essential to the just determination of a
Sweden to the effect that, Tanja Sorlie was duly pending case. (Sec. 26, Rule 132, ROC, as amended)
authorized to legalize official documents for the
Ministry. Shangri-La Hotel however, questioned REASON: They have a common repository, from
their filiation with the deceased assailing that where they ought not to be removed. Besides, these
the documents presented were incompetent for records by being daily removed would be in great
failing to comply with the requirement of danger of being lost.
authentication. Is the contention correct?
RATIONALE: They have a common repository, from
A: NO. Although the documents were not attested where they ought not to be removed. Besides, these
by the officer having the legal custody of the record records, by being daily removed, would be in great
or by his deputy in the manner required in Section danger of being lost.
25 of Rule 132, and said documents did not comply
with the requirement under Section 24 of Rule 132 Attestation of a Copy
to the effect that if the record was not kept in the
Philippines a certificate of the person having The attestation must state, in substance:
custody must accompany the copy of the document
that was duly attested stating that such person had 1. That the copy is a correct copy of the original, or
custody of the documents, the deviation was not a specific part thereof, as the case may be; and
enough reason to reject the utility of the documents 2. It must be under the official seal of the attesting
for the purposes they were intended to serve. officer, if there be any, or if he be the clerk of a
court having a seal, under the seal of such court.
That rules of procedure may be mandatory in form (Sec. 25, Rule 132, ROC, as amended)
and application does not forbid a showing of
substantial compliance under justifiable Proof of Public Record of a Private Document
circumstances, because substantial compliance
does not equate to a disregard of basic rules. For 1. By the original record; or
sure, substantial compliance and strict adherence 2. By a copy thereof, attested by the legal
are not always incompatible and do not always clash custodian of the record, with an appropriate
in discord. (Makati Shangri-La Hotel and Resort, Inc. certificate that such officer has the custody.
v. Harper, G.R. No. 189998, 29 Aug. 2012) (Sec. 27, Rule 132, ROC, as amended)
Special power of attorney executed abroad Proof of Lack of Record

(2011 BAR)
Proof of lack of record of a document consists of
A special power of attorney (SPA) executed before a written statement signed by an officer having
city judge-public notary in a foreign country, custody of an official record or by his deputy. The

e

Remedial Law
written statement must contain the following found to exist in the records of his office,
matters: accompanied by a certificate as above provided, is
admissible as evidence that the records of his office
1. There has been a diligent search of the record; contain no such record or entry.”
and
2. That despite the diligent search, no record of The records of the PNP Firearm and Explosives
entry of a specified tenor is found to exist in the Office are a public record. Hence, notwithstanding
records of his office. that the certifying officer was not presented as a
witness for the prosecution, the certification he
NOTE: The written statement must be accompanied made is admissible in evidence against Lino. (Sec.
by a certificate that such officer has the custody of 28, Rule 130; Mallari v. Court of Appeals, G.R. No.
official records. (Sec. 28, Rule 132, ROC, as amended) 110569, 09 Dec. 1996)
The certification to be issued by the Local Civil Proof of Notarial Documents

Registrar must categorically state that the
document does not exist in his or her office or the Documents acknowledged before a notary public is
particular entry could not be found in the register considered a public document and enjoy the
despite diligent search. (Sevilla v. Cardenas, G.R. No. presumption of regularity. A notarized document is
167684, 31 July 2006) entitled to full faith and credit upon its face.
Impeachment of a Judicial Record (2009 BAR) The document may be presented in evidence
without further proof, the certificate of
Any judicial record may be impeached by: (W-C-F) acknowledgment being prima facie evidence of the
execution of the instrument or document involved.
1. Want of jurisdiction in the court or judicial (Sec. 30, Rule 132, ROC, as amended)
officer;
2. Collusion between the parties (e.g., legal Evidentiary Weight of a Notarial Document
separation, annulment cases); or
3. Fraud in the party offering the record, in A notarial document celebrated with all the legal
respect to the proceedings. (Sec. 29, Rule 132, requisites under a notarial certificate is evidence of
ROC, as amended) a high character, and to overcome its recitals, it is
incumbent upon the party challenging it to prove his
NOTE: Fraud refers to extrinsic fraud, which is a claim with clear and convincing evidence.
ground for annulment of judgment.
Q: Etom, Jr. filed a case for illegal dismissal and
Q: Lino was charged with illegal possession of money claims against his employer Aroma
firearm. During trial, the prosecution presented Lodging House. The Labor Arbiter and NLRC
in evidence a certification of the PNP Firearms found him to have been legally dismissed but
and Explosives Office attesting that the accused ordered the employer to pay punitive damages,
had no license to carry any firearm. The salary differential, holiday pay and 13th month
certifying officer, however, was not presented as pay. CA reversed the ruling stating that for
a witness. Is the certification of the PNP Firearm having executed an earlier notarized affidavit
and Explosives Office without the certifying stating that he received wages above the
officer testifying on it admissible in evidence required minimum salary, Etom, Jr. could not
against Lino? (2003 BAR) subsequently claim that he was underpaid by his
employer. Is the presumption of regularity of
A: YES. Section 28, Rule 130 provides that “a written notarized documents disputable?
statement signed by an officer having the custody of
an official record or by his deputy that after diligent A: YES. While a notarized document is presumed to
search, no record or entry of a specified tenor is be regular, such presumption is not absolute and

Evidence
may be overcome by clear and convincing evidence a translation has been impugned as incorrect, to
to the contrary. The fact that a document is decide the issue. Where such document, not so
notarized is not a guarantee of the validity of its accompanied with a translation in English or
contents. Here, Etom, Jr. is an unlettered employee Filipino, is offered in evidence and not objected to,
who may not have understood the full import of his either by the parties or the court, it must be
statements in the affidavit. Notably, he, along with a presumed that the language in which the document
co-worker did not state the specific amount of what is written is understood by all, and the document is
they referred as salary above the minimum required admissible in evidence. (Heirs of Doronio v. Heirs of
by law. The employer’s mere reliance on the Doronio, G.R. No. 169454, 27 Dec. 2007)
foregoing affidavit is misplaced because the
requirement of established jurisprudence is for the 3. OFFER AND OBJECTION
employer to prove payment, and not merely deny
the employee’s accusation of nonpayment on the GR: The court shall consider only the evidence which
basis of the latter’s own declaration. (Etom Jr. v. has been formally offered. The purpose for which the
Aroma Lodging House, G.R. No. 192955. 09 Nov. evidence is offered must be specified. (Sec. 34, Rule
2015) 132, ROC, as amended) (2007 BAR)
Alterations in a Document XPNs:
A party producing a document as genuine which has 1. Marked exhibits not formally offered may be
been altered and appears to have been altered after admitted provided it complies with the
its execution must account for the alteration. He or following requisites:
she may show that the alteration: (A-C-I-D)
a. Must be duly identified by testimony duly
1. Was made by Another, without his recorded; and
concurrence; b. Must have been incorporated in the records
2. Was made with the Consent of the parties of the case; (Ramos v. Dizon, G.R. No.
affected by it; 137247, 06 Aug. 2006)
3. Was otherwise properly or innocently made;
or 2. Under the Rule on Summary Procedure, where
4. Did not change the meaning or language of the no full-blown trial is held in the interest of
instrument. speedy administration of justice;
NOTE: Failure to do at least one of the above will 3. In summary judgments under Rule 35 where
make the document inadmissible in evidence. (Sec. the judge based his decisions on the pleadings,
31, Rule 132, ROC, as amended) depositions, admissions, affidavits and
documents filed with the court;
Documentary Evidence in an Unofficial
Language 4. Documents whose contents are taken judicial
notice of by the court;
Documents written in an unofficial language shall
not be admitted as evidence unless accompanied 5. Documents whose contents are judicially
with a translation into English or Filipino. (Sec. 33, admitted;
6. Object evidence which could not be formally
The requirement that documents written in an offered because they have disappeared or have
unofficial language must be accompanied with a become lost after they have been marked,
translation in English or Filipino as a prerequisite identified and testified on and described in the
for its admission in evidence must be insisted upon record and became the subject of cross-
by the parties at the trial to enable the court, where examination of the witness who testified on

e

Remedial Law
them during the trial; (Tabuena v. CA, G.R. No. for which it was offered. (Ragudo v. Fabella Estate
85423, 06 May 1991) or Tenants Assoc. Inc., G.R. No. 146823, 09 Aug. 2005)
7. Documents and affidavits used in deciding Identification of a Documentary Evidence vs.

quasi-judicial or administrative cases. Formal Offer as an Exhibit
(Bantolino v. Coca-Cola Bottlers Inc., G.R. No.
153660, 10 June 2003)
IDENTIFICATION OF A
FORMAL OFFER AS
Purposes of Offer of Evidence DOCUMENTARY
AN EXHIBIT
EVIDENCE
1. To notify the party of possible objection, and for Done only when the
Done in the course of the
the offeror to make necessary correction at the party rests its case.
trial and accompanied
trial level to meet the objection; (Dizon v. Court of Tax
by the marking of the
2. To allow the trial judge to rule properly; and Appeals, G.R. No.
evidence as an exhibit.
3. To lay basis for appeal so that the appellate 140944, 30 Apr. 2008)
court can decide intelligently. (Regalado, 2008)
Q: Gizel filed a complaint for recovery of
NOTE: A formal offer is necessary, since judges are possession and damages against Fara. In the
required to base their findings of fact and their course of the trial, Gizel marked his evidence but
judgment solely and strictly upon the evidence his counsel failed to file a formal offer of
offered by the parties at the trial. (Aludos v. Suerte, evidence. Fara then presented in evidence tax
G.R. No. 165285, 18 June 2012) declarations in the name of his father to
establish that his father is a co-owner of the
To allow parties to attach any documents to their property. The court ruled in favor of Fara, saying
pleadings and then expect the court to consider it as that Gizel failed to prove sole ownership of the
evidence, even without formal offer and admission, property in the face of Fara’s evidence. Was the
may draw unwarranted consequences. Opposing court correct? Explain briefly. (2007 BAR)
parties will be deprived of their chance to examine
the document and to object to its admissibility. On A: YES. The court shall consider no evidence which
the other hand, the appellate court will have has not been formally offered. The trial court
difficulty reviewing the documents not previously rendered judgment considering only the evidence
scrutinized by the court below. (Candido v. Court of offered by Fara. The offer is necessary because it is
Appeals, G.R. No. 107493, 01 Feb. 1996) the duty of the judge to rest his findings of fact and
his judgment only and strictly upon the evidence
NOTE: An offer of evidence is important because the offered by the parties at the trial. (People v. Pecardal,
court shall consider no evidence which has not been G.R. No. 71381, 24 Nov. 1986)
formally offered. (Riguera, 2020)
Q: Aiza and Matet were charged with murder.
Reasons for Stating Purposes of Offer of Upon application of the prosecution, Matet was
Evidence discharged from the Information to be utilized
as a State witness. The prosecutor presented
1. For the court to determine whether that piece Matet as witness but forgot to state the purpose
of evidence should be admitted/considered or of his testimony much less offer it in evidence.
not; and Matet testified that she and Aiza conspired to
2. For the adverse party to interpose the proper kill the victim but it was Aiza who actually shot
objection. the victim.
NOTE: It is basic in the law of evidence that the The testimony of Matet was the only material
court shall consider evidence solely for the purpose evidence establishing the guilt of Aiza. Matet
was thoroughly cross-examined by the defense

Evidence
counsel. After the prosecution rested its case, documentary or object

the defense filed a motion for demurrer to evidence for marking
evidence based on the following grounds: and identification
during trial is not the
a. The testimony of Matet should be excluded offer contemplated in
because its purpose was not initially stated the rules. (Riano, 2019)
and it was not formally offered in evidence;
and NOTE: All evidence must be made orally. (Sec. 35,
b. Matet's testimony is not admissible against Rule 132, ROC, as amended)
Aiza pursuant to the rule on "res inter alios
acta." (2003 Bar) Stages in the Presentation of Documentary
Evidence
Rule on the motion for demurrer to evidence on
the above grounds. MARKING
The purpose is to facilitate the identification of the exhibit. It may be made
during the pre-trial or during the trial.
A:
1. The demurrer to evidence should be denied
because the defense counsel did not object to
Jt
IDENTIFICATION
Presenting proof that the document being presented is the same as the one
her testimony despite the fact that the referred to by the witness in his testimony.
prosecutor forgot to state its purpose and offer
it in evidence. Moreover, the defense counsel
thoroughly cross-examined Matet and thus
JL
AUTHENTICATION
waived the objection. Positive identification of the witness that the document presented is
genuine and has been duly executed or that it is neither spurious nor
counterfeit nor executed by mistake or under duress. (Sales v. sta. Mesa
The res inter alios acta rule does not apply

Market Carp., G.R. Na. 157766, July 12, 2007}
2.
because Matet testified in open court and was
subjected to cross-examination.
Jt
INSPECTION
Whenever a writing is shown to a witness, it may be inspected by the
adverse party(Sec. 18, Rule 132}
When to Make an Offer
TESTIMONIAL DOCUMENTARY AND

Jt
FORMAL OFFEROF EXHIBIT
EVIDENCE OBJECT EVIDENCE After the termination of the testimonial evidence the proponent will then
make a formal offer and state the purpose for which the document is
The offer of the The offer of presented. (Sec. 34, Rule 132}
testimony of a witness documentary and

in evidence must be object evidence shall D
made at the time the be made after the OBJECTIONS
Objections to introduction of documentary evidence shall be made when it
witness is called to presentation of a is formally offered. (Sec. 36, Rule 132}
testify. (Sec. 35, Rule party’s testimonial

132, ROC, as amended) evidence. (Sec. 35, Rule JL
(2009 BAR) 132, ROC, as amended) TENDEROF EXCLUDEDEVIDENCE/OFFEROF PROOF
Remedy of a party if the court improperly excluded an otherwise admissible
The evidence is only evidence. (Sec. 40, Rule 132}
offered once, after all

Every time a new the testimonial Ways of Impeaching the Evidence of the
witness is called to evidence are offered
Proponent
testify, there must be and prior to the resting
an offer of evidence. of the case for a party.
1. By objection to offer of evidence (Sec. 36, Rule
132, ROC, as amended); or
NOTE: The 2. By motion to strike out answer. (Sec. 39, Rule
presentation of a

Remedial Law
Purposes of Objections substantive law that authorizes the exclusion of

evidence. (Riano, 2019)
1. To keep out inadmissible evidence that would
cause harm to a client’s cause; Contemporaneous Objection Rule
2. To protect the record, i.e., to present the issue of It requires that a specific and timely objection be
inadmissibility of the offered evidence in a way made to the admission of evidence. Objections to the
that if the trial court rules erroneously, the admission of evidence must be made seasonably, at
error can be relied upon as a ground for a future the time it is introduced or offered, otherwise they
appeal; are deemed waived, and will not be entertained for
the first time on appeal. (People v. Bañares, G.R. No.
3. To protect a witness from being embarrassed 68298, 25 Nov. 1986)
on the stand or from being harassed by the
adverse counsel; Kinds of objections
4. To expose the adversary’s unfair tactics like his 1. Irrelevant– The evidence being presented is
consistently asking obviously leading not relevant to the issue (e.g., when the
questions; prosecution offers as evidence the alleged offer
of an insurance company to pay for the damages
5. To give the trial court an opportunity to correct suffered by the victim in a homicide case);
its own errors and at the same time warn the
court that a ruling adverse to the objector may 2. Incompetent – The evidence is excluded by law
supply a reason to invoke a higher court’s or rules (Sec. 3, Rule 128, ROC, as amended) (e.g.,
appellate jurisdiction; and evidence obtained in violation of the
Constitutional prohibition against
6. To avoid a waiver of the inadmissibility of unreasonable searches and seizures);
otherwise inadmissible evidence. (Riano, 2019)
3. Specific objections– e.g., parol evidence and
Time when Objection Should be Made best evidence rule;
Objection to evidence offered orally must be made 4. General objections– e.g., continuing objections
immediately after the offer is made. (Sec. 37, Rule 132, ROC, as amended)
1. Objection to the testimony of a witness for a. objection to a question propounded in the

lack of a formal offer – as soon as the witness course of the oral examination of the
begins to testify. witness; and
2. Objection to a question propounded in the b. objection to an offer of evidence in writing;
course of the oral examination of a witness -
as soon as the grounds shall become reasonably 5. Formal– One directed against the alleged defect
apparent. (Sec. 36, Rule 132, ROC, as amended) in the formulation of the question (e.g.,
ambiguous questions, leading and misleading
NOTE: As a rule, failure to specify the grounds for questions, repetitious questions, multiple
the objection is in effect a waiver of the objection, questions, argumentative questions) (Riano,
except where the evidence could not have been 2019); and
legally admitted for any purpose whatsoever.
(People v. Singh, 45 Phil. 676) 6. Substantive– One made and directed against
the very nature of evidence (e.g., parol, not the
The objection must be specific enough to adequately best evidence hearsay, privileged
inform the court the rule of evidence or of communication, not authenticated, opinion, res
inter alios acta). (Ibid.)

Evidence
NOTE: Objections to admissibility of evidence court desires to take a reasonable time to inform
cannot be raised for the first time on appeal. When itself on the question presented; but the ruling shall
a party desires the court to reject the evidence always be made during the trial and at such time as
offered, he must so state in the form of objection. will give the party against whom it is made an
Without objection, he cannot raise the question for opportunity to meet the situation presented by the
the first time on appeal. (People v. Salak, G.R. No. ruling. (Sec. 38, Rule 132, ROC, as amended)
181249, 14 Mar. 2011)
However, if the objection is based on two or more
Rules on Continuing Objections grounds, a ruling sustaining the objection on one or
some of the must specify the ground or grounds
GR: When it becomes reasonably apparent in the relied upon. (Ibid.)
course of the examination that the questions asked
are of the same class as those to which objection has NOTE: The rulings of the trial court during the
been made (whether sustained or overruled), it course of the trial are interlocutory in nature and
shall not be necessary to repeat the objection, it may not be the subject of separate appeals or review
being sufficient for the adverse party to record his on certiorari but are assigned as errors and
continuing objection to such class of questions. (Sec. reviewed on appeal properly taken from the
37, Rule 132, ROC, as amended) decision rendered by the trial court. (Gatdula v.
People, G.R. No. 140688, 26 Jan. 2001)
XPNs:
1. Where the question has not been answered, it is Q: Counsel Oliva objected to a question posed by
necessary to repeat the objection when the opposing Counsel Diesta on the grounds that it
evidence is again offered or the question is was hearsay and it assumed a fact not yet
again asked; established. The judge banged his gavel and
ruled by saying “Objection Sustained”. Can
2. Incompetency is shown later; Counsel Diesta ask for a reconsideration of the
ruling? (2012 BAR)
3. Where objection refers to preliminary question,
objection must be repeated when the same A: YES, Counsel Diesta may ask the Judge to specify
question is again asked during the introduction the ground/s relied upon for sustaining the
of actual evidence; objection and thereafter move its reconsideration
thereof. (Sec. 38, Rule 132, ROC, as amended)
4. Objection to evidence was sustained but
reoffered at a later stage of the trial; Modes of excluding inadmissible evidence
5. Evidence is admitted on condition that its 1. Objection – when the evidence is offered;
competency or relevancy be shown by further
evidence and the condition is not fulfilled, the NOTE: Objections may be waived because the
objection formerly interposed must be right to object is merely a privilege which the
repeated or a motion to strike out the evidence party may waive. (People v. Martin, G.R. No.
must be made; and 172069, 30 Jan. 2008) However, such waiver
only extends to the admissibility of the
6. Where the court reserves the ruling on evidence. It does not involve an admission that
objection, the objecting party must request a the evidence possesses the weight attributed to
ruling or repeat the objection. it by the offering party. (Riano, 2019)
Ruling 2. Motion to strike out or expunge:
The ruling on the objection must be given a. When the witness answers prematurely
immediately after the objection is made, unless the before there is reasonable opportunity for

e

Remedial Law
the adverse party to object, and such NOTE: This rule is in preparation in the filing of an
objection is found to be meritorious; appeal. Moreover, the rule is that the offeror must
preserve such excluded evidence on his record and
b. When a question is not objectionable but stating the purpose of such preservation, e.g.,
the answer is not responsive; knowing that it is relevant and must be admitted.
c. When a witness testifies without a question Purposes of Tender of Excluded Evidence

being posed or testifies beyond limits set by
the court; a. To allow the court to know the nature of the
testimony or the documentary evidence and
d. When the witness does a narration instead convince the trial judge to permit the evidence
of answering the question; or testimony; and
e. When the answers are incompetent, b. To create and preserve a record for appeal,
irrelevant, or improper (Sec. 39, Rule 132, should the judge be not persuaded to reverse
ROC, as amended); his earlier ruling. (Riano, 2019)
f. When the witness becomes unavailable for Even assuming that the trial court erroneously
cross-examination through no fault of the rejected the introduction as evidence of the CA
cross-examining party; Decision, petitioner is not left without legal
recourse. Petitioner could have availed of the
g. When the testimony was allowed remedy provided in Section 40, Rule 132 where he
conditionally and the condition for its could have included the same in his offer of
admissibility was not fulfilled (Riano, exhibits. If an exhibit sought to be presented in
2019); evidence is rejected, the party producing it should
ask the courts permission to have the exhibit
h. When a witness has volunteered attached to the record. (Catacutan v. People, G.R. No.
statements in such a way that the party has 175991, 31 Aug. 2011)
not been able to object thereto; or
Offer of Proof vs. Offer of Evidence
i. Uncompleted testimonies where there is no
opportunity for the other party to cross- OFFER OF PROOF /
examination. (Ibid.) TENDER OF OFFER OF EVIDENCE
EXCLUDED EVIDENCE
NOTE: A direct testimony given and allowed Refers to testimonial,
without a prior formal offer may not be expunged The process by which a documentary or object
from the record. When such testimony is allowed proponent of an evidence that are
without any objection from the adverse party, the excluded evidence presented or offered in
latter is estopped from questioning the non- tenders the same. court by a party so that
compliance with the requirement. Only resorted to if the court can consider
admission is refused by his evidence when it
Tender of Excluded Evidence (2017 BAR) the court for purposes comes to the
of review on appeal. preparation of the
When an attorney is not allowed by the court to decision.
present testimony which he thinks is competent,
material and necessary to prove his case, he must How tender of excluded evidence is made
make an offer of proof. This is the method properly
preserving the record to the end that the question 1. As to documentary or object evidence: It may
may be saved for purposes of review. (Caraig, 2004) have the same attached to or made part of the

Evidence
record. (Sec. 40, Rule 132, ROC, as amended) English Exchequer Rule vs. Harmless Error Rule
(1991, 1996 Bar)
ENGLISH HARMLESS ERROR
NOTE: The party should ask that evidence ruled EXCHEQUER RULE RULE
out at the trial be attached to the record of case It provides that a trial The appellate court
in order that same may be considered on court's error as to the will disregard an error
appeal. (Bañez v. CA, G.R. No. L-30351, 11 Sept. admission of evidence committed by the trial
1974) was presumed to have court in the admission
caused prejudice and of evidence unless in
2. As to oral evidence: It may state for the record therefore, almost its opinion, some
the name and other personal circumstances of automatically required substantial wrong or
the witness and the substance of the proposed new trial. miscarriage of justice
testimony. (Sec. 40, Rule 132, ROC, as amended) has been occasioned.
How offer of Evidence is Made NOTE: We follow the harmless error rule, for in
dealing with evidence improperly admitted in the
1. Before the court has ruled on the objection, in trial, courts examine its damaging quality and its
which case its function is to persuade the court impact to the substantive rights of the litigant. If the
to overrule the objection or deny the privilege impact is slight and insignificant, appellate courts
invoked; disregard the error as it will not overcome the
weight of the properly admitted evidence against
2. After the court has sustained the objection, in the prejudiced part. (People v. Teehankee Jr., G.R.
which case its function is to preserve for the Nos. 111206-08, 06 Oct. 1995)
appeal the evidence excluded by the privilege
invoked; or
H. JUDICIAL AFFIDAVIT RULE
3. Where the offer of proof includes the (A.M. No. 12-8-8-SC)
introduction of documents, or any of the
physical evidence, the same should be marked
for identification so that they may become part
Scope and Answer where Applicable
of the record. (Herrera, 1999)
This Rule shall apply to all actions, proceedings, and
incidents requiring the reception of evidence
When Offer of Proof is NOT Required
before:
1. When the question to which an objection has
1. The MeTC, MTC in Cities, MTC, and the MCTC,
been sustained clearly reveals on its face the
and the Shari‘a Circuit courts;
substance, purpose and relevancy of the
excluded evidence;
NOTE: It shall not apply to small claims cases
under A.M. No. 08-8-7-SC;
2. When the substance, purpose and relevancy of
the excluded evidence were made known to the
2. The RTC and the Shari‘a District Courts;
court either in the court proceedings and such
3. The Sandiganbayan, CTA, CA and the Shari‘a
parts appear on record; and
Appellate Courts;
4. The investigating officers and bodies
3. Where evidence is inadmissible when offered
authorized by the Supreme Court to receive
and excluded, but thereafter becomes
evidence, including the IBP; and
admissible, it must be re-offered, unless the
5. The special courts and quasi-judicial bodies,
court indicates that a second offer would be
whose rules of procedure are subject to
useless. (Herrera, 1999)
disapproval of the Supreme Court, insofar as

e

Remedial Law
their existing rules of procedure contravene 3. The court will already take active part in
the provisions of this Rule. (Sec. 1, JAR) examining the witnesses. The judge will no
longer be limited to asking clarificatory
NOTE: In civil cases (with the exception of small questions; he can also ask questions that will
claims), the application of the JAR is mandatory determine the credibility of the witness,
regardless of the amount of money claimed. ascertain the truth of his testimony and elicit
the answers that the judge needs for resolving
Effect of the Judicial Affidavit Rule (JAR) in the issues. (Associate Justice Roberto Abad, supra)
Philippine Judicial System
Submissions in lieu of Direct Testimony
It signals a dramatic shift from a dominantly
adversarial system to a mix adversarial and The following are the requirements of the JAR
inquisitorial system. (Associate Justice Roberto which the parties are bound to follow:
Abad, UST Law Review Chief Justice Andres Narvasa
Honorary Lecture, 15 Feb. 2013) The parties shall file with the court and serve on the
adverse party, personally or by licensed courier
Purpose of JAR service, not later than 5 days before pre-trial or
preliminary conference or the scheduled hearing
To decongest the courts of cases and to reduce with respect to motions and incidents, the
delays in the disposition of cases. following:
Significance of the use of a Judicial Affidavit 1. The judicial affidavits of their witnesses, which
shall take the place of such witnesses' direct
The judicial affidavit shall take the place of direct testimonies; and
testimonies of witnesses.
2. The parties' documentary or object evidence, if
Notable Changes by the JAR any, which shall be attached to the judicial
affidavits and marked as Exhibits A, B, C, and so
1. Testimonies are now allowed to be taken and on in the case of the complainant or the plaintiff,
kept in the dialect of the place provided they are and as Exhibits 1, 2, 3, and so on in the case of
subsequently translated into English or the respondent or the defendant. (Sec. 2, JAR)
Filipino. These will be quoted in pleadings in
their original version with the English or NOTE: Every pleading stating a party’s claims or
Filipino translation in parenthesis provided by defenses shall state, among others the summary of
the party, subject to counter translation by the witnesses’ intended testimonies, provided that
opposing side. the judicial affidavits of said witnesses shall be
attached to the pleading and form an integral part
2. In civil actions, the judicial affidavit rule thereof. Only witnesses whose judicial affidavits are
requires the parties to lay their cards on the attached to the pleading shall be presented by the
table before pre-trial by submitting the judicial parties during trial. Except if a party presents
affidavits and documents of the parties and meritorious reasons as basis for the admission of
their witnesses and serving copies on the additional witnesses, no other witnesses or affidavit
adverse party at least 5 days before the pre- shall be heard or admitted by the court. (Sec. 6, Rule
trial. No further stipulations of facts are needed 7, ROC, as amended)
at the pre-trial since, by comparing the judicial
affidavits of the opposing sides, the court will Attachment of the Original Document as
already see what matters they agree and on Documentary Evidence
what matters they dispute.
A party or a witness may keep the original
document or object evidence in his possession after

Evidence
the same has been identified, marked as exhibit, and authorized by law to administer the same. (Sec.
authenticated, but he must warrant in his judicial 3, JAR); and
affidavit that the copy or reproduction attached to
such affidavit is a faithful copy or reproduction of 7. A sworn attestation by the lawyer who
that original. In addition, the party or witness shall conducted or supervised the examination of the
bring the original document or object evidence for witness attesting to the following:
comparison during the preliminary conference with
the attached copy, reproduction, or pictures, failing a. He faithfully recorded or caused to be
which the latter shall not be admitted. (Ibid.) recorded the questions he asked and the
corresponding answers that the witness
Contents of a Judicial Affidavit (2016 BAR) gave; and
b. Neither he nor any other person present or
A judicial affidavit shall be prepared in a language assisting him coached the witness regarding
known to the witness and, if not in English or the latter's answers. (Sec. 4, JAR)
Filipino, accompanied by a translation in English or
Filipino, and shall contain the following: NOTE: A false attestation shall subject the lawyer to
disciplinary action, including disbarment. (Sec. 4(b)
1. The name, age, residence or business address, JAR)
and occupation of the witness;
Effect of Non-compliance with the Content and
2. The name and address of the lawyer who Attestation Requirements
conducts or supervises the examination of the
witness and the place where the examination is The judicial affidavit shall not be admitted by the
being held; court in evidence. (Sec. 10(c), JAR)
3. A statement that the witness is answering the NOTE: The above provision, however, does not
questions asked of him, fully conscious that he absolutely bar the submission of a complaint
does so under oath, and that he may face replacement judicial affidavit as long as the
criminal liability for false testimony or perjury; replacement shall be submitted before the hearing
or trial and provided further that the following
4. Questions asked of the witness and his requisites are met:
corresponding answers, consecutively
numbered, that: 1. The submission shall be allowed only once;
2. The delay is for a valid cause;
a. Show the circumstances under which the 3. The delay would not unduly prejudice the
witness acquired the facts upon which he opposing party; and
testifies; 4. The public or private counsel responsible for
b. Elicit from him those facts which are the preparation and submission of the affidavit
relevant to the issues that the case pays a fine of not less than ₱1,000.00 nor more
presents; and than ₱5,000.00, at the discretion of the court.
c. Identify the attached documentary and
object evidence and establish their Subpoena
authenticity in accordance with the Rules of
Court; The requesting party may avail himself of the
issuance of a subpoena ad testificandum or duces
5. The signature of the witness over his printed tecum under Rule 21 of the Rules of Court if the (a)
name; government official or employee, or the (b)
requested witness, who is neither the witness of the
6. A jurat with the signature of the notary public adverse party nor a hostile witness:
who administers the oath or an officer who is

e

Remedial Law
1. Unjustifiably declines to execute a judicial personnel, without prejudice to the tender of

affidavit; or excluded evidence under Sec. 40, Rule 132.
2. Refuses without just cause to make the relevant
books, documents, or other things under his 3. The adverse party shall have the right to cross-
control available for copying, authentication, examine the witness on his judicial affidavit and
and eventual production in court. (Sec. 5, JAR) on the exhibits attached to the same (Sec. 7,
JAR);
NOTE: Regardless of whether the requested
witness, who is the adverse party’s witness, 4. The party who presents the witness may
unjustifiably declines to execute a judicial affidavit examine him on re-direct;
or refuses without just cause to present the
documents, Section 5 cannot be made to apply to NOTE: In every case, the court shall take active
him for the reason that he is included in a group of part in examining the witness to determine his
individuals expressly exempt from the provision’s credibility as well as the truth of his testimony
application. (Ng Meng Tamv. China Banking and to elicit the answers that it needs for
Corporation, G.R. No. 214054, 05 Aug. 2015) resolving the issues.
Submission by the Prosecution of the Judicial 5. Upon the termination of the testimony of his
Affidavit last witness, a party shall immediately make an
oral offer of documentary evidence, piece by
The prosecution shall submit the judicial affidavits piece, in their chronological order, stating the
of its witnesses not later than five days before the purpose or purposes for which he offers the
pre-trial, serving copies of the same upon the particular exhibit (Sec. 8, JAR);
accused. The complainant or public prosecutor shall
attach to the affidavits such documentary or object 6. After each piece of exhibit is offered, the
evidence as he may have, marking them as Exhibits adverse party shall state the legal ground for his
A, B, C, and so on. No further judicial affidavit, objection, if any, to its admission, and the court
documentary, or object evidence shall be admitted shall immediately make its ruling respecting
at the trial. that exhibit.
Trial
NOTE: Since the documentary or object exhibits
After submitting to the court and serving the form part of the judicial affidavits that describe
adverse party a copy of the judicial affidavits, trial and authenticate them, it is sufficient that such
shall commence as follows: exhibits are simply cited by their markings
during the offers, the objections, and the
1. The party presenting the judicial affidavit of his rulings, dispensing with the description of each
witness in place of direct testimony shall state exhibit.
the purpose of such testimony at the start of the
presentation of the witness (Sec. 6, JAR); Application to Criminal Actions
2. The adverse party may move to disqualify the The judicial affidavit rule shall apply to all criminal
witness or to strike out his affidavit or any of the actions:
answers found in it on ground of
inadmissibility; 1. Where the maximum of the imposable penalty
does not exceed six years;
NOTE: The court shall promptly rule on the 2. Where the accused agrees to the use of judicial
motion and, if granted, shall cause the marking affidavits, irrespective of the penalty involved;
of any excluded answer by placing it in brackets or
under the initials of an authorized court

Evidence
3. With respect to the civil aspect of the actions, In all other cases where the culpability or the
whatever the penalties involved are. (Sec. 9, innocence of the accused is based on the testimonies
JAR) of the alleged eyewitnesses, the testimonies of these
witnesses shall be in oral form. (Sec. 11, JAR)
Form of Testimony in Criminal Cases
Q: Can a party filing a criminal action cognizable
(a) For First Level Courts by the Regional Trial Court be mandated to
follow the JAR?
In all criminal cases, including those covered by the
Rule on Summary Procedure, the testimonies of A: NO. The jurisdiction of the RTC in criminal cases
witnesses shall consist of the duly subscribed includes offenses where the imposable penalty
written statements given to law enforcement or exceeds 6 years, thus, as a rule the JAR has no
peace officers or the affidavits or counter-affidavits application except when the accused agrees to its
submitted before the investigating prosecutor if use.
such are not available, testimonies shall be in the
form of judicial affidavits, subject to additional Q: Is it mandatory on the part of the accused to
direct and cross—examination questions. submit a judicial affidavit?
The trial prosecutor may dispense with the sworn A: NO. Since the accused is already aware of the
written statements submitted to the law evidence of the prosecution, he has the option to
enforcement or peace officers and prepare the submit or not to submit his judicial affidavits. If the
judicial affidavits of the affiants or modify or revise accused desires to be heard, he may submit his
the said sworn statements before presenting it as judicial affidavit as well as those of his witnesses
evidence. within ten days from receipt of the affidavits of the
prosecution with service upon the public and
(b) For Second Level Courts, Sandiganbayan and private prosecutor. (Sec. 9(c), JAR)
Court of Tax Appeals
Q: The JAR took effect last January 1, 2013, but
In criminal cases where the demeanor of the with some modification as to its applicability to
witness is not essential in determining the criminal cases. What are these modifications?
credibility of said witness, such as forensic chemists,
medico-legal officers, investigators, auditors, A: The JAR was modified only with respect to
accountants, engineers, custodians, expert actions filed by public prosecutors, subject to the
witnesses and other similar witnesses, who will following conditions:
testify on the authenticity, due execution and the
contents of public documents and reports, and in 1. For the purpose of complying with the Judicial
criminal cases that are transactional in character, Affidavit Rule, public prosecutors in the first and
such as falsification, malversation, estafa, or other second level courts shall use the sworn
crimes where the culpability or innocence of the statements that the complainant and his or her
accused can be established through documents, the witnesses submit during the initiation of the
testimonies of the witnesses shall be the duly criminal action before the office of the public
subscribed written statements given to law prosecutor or directly before the trial court;
enforcement or peace officers or the affidavits or
counter-affidavits submitted before the 2. Upon presenting the witness, the attending
investigating prosecutor, and if such are not public prosecutor shall require the witness to
available, testimonies shall be in the form of judicial affirm what the sworn statement contains and
affidavits, subject to additional direct and cross- may only ask the witness additional direct
examination questions. examination questions that have not been
amply covered by the sworn statement; and

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Remedial Law
3. This modified compliance does not apply to As to Rules of Procedure governing Quasi-
criminal cases where the complainant is judicial bodies which are Inconsistent with it
represented by a duly empowered private
prosecutor. The private prosecutor shall be They are thereby disapproved. (Ibid.)
charged in the applicable cases the duty to
prepare the required judicial affidavits of the Q: Pedro was charged with theft for stealing
complainant and his or her witnesses and cause Juan's cellphone worth P20, 000.00. Prosecutor
the service of the copies of the same upon the Marilag at the pre-trial submitted the judicial
accused. affidavit of Juan attaching the receipt for the
purchase of the cellphone to prove civil liability.
Effect of Non-Compliance She also submitted the judicial affidavit of
GR: A party who fails to submit the required Mario, an eyewitness who narrated therein how
judicial affidavits and exhibits on time shall be Pedro stole Juan's cellphone. At the trial, Pedro's
deemed to have waived their submission. (Sec. 10, lawyer objected to the prosecution's use of
JAR) judicial affidavits of her witnesses considering
the imposable penalty on the offense with which
XPN: The court may, however, allow only once the his client was charged. (2015 BAR)
late submission of the same provided, the delay is
for a valid reason, would not unduly prejudice the a. Is Pedro's lawyer correct in objecting to the
opposing party, and the defaulting party pays a judicial affidavit of Mario?
fine of not less than ₱1,000.00 nor more than
₱5,000.00, at the discretion of the court. (Ibid.) A: YES, Pedro’s lawyer is correct in objecting to the
judicial affidavit of Mario. The Judicial Affidavit
Appearance of the Witness at the Scheduled Rules shall apply only to criminal actions where the
Hearing maximum of the imposable penalty does not exceed
six years. (Sec. 9(a)(1), A.M. No. 12-8-9-SC) Here, the
The submission of the judicial affidavit of the maximum imposable penalty for the crime of theft
witness does not exempt such witness from of a cellphone worth ₱20,000 is prison mayor in its
appearing at the scheduled hearing. His appearance minimum to medium periods, or six years and one
is necessary as the adverse party has the right to day to eight years and one day.
cross-examine him on his judicial affidavit and the
attached exhibits. b. Is Pedro's lawyer correct in objecting to the
judicial affidavit of Juan?
NOTE: The court shall not consider the affidavit of
any witness who does not appear in the scheduled A: NO. Pedro’s lawyer is not correct in objecting to
hearing of the case as required. As for the counsel, the judicial affidavit of Juan because the Judicial
his failure to appear without a valid cause despite Affidavit Rules apply with respect to the civil aspect
notice shall be deemed to have waived his client’s of the actions, regardless of the penalties involved.
right to confront by cross-examination, the (Sec. 9, A.M. No. 12-8-8-SC) Here the judicial affidavit
witnesses present. of Juan was offered to prove the civil liability of
Pedro.
Effect on the Rules of Court and Rules of
Procedure governing investigating officers and c. At the conclusion of the prosecution's
bodies authorized by the Supreme Court to presentation of evidence, Prosecutor Marilag
receive evidence orally offered the receipt attached to Juan's
judicial affidavit, which the court admitted over
They are repealed or modified insofar as they are the objection of Pedro's lawyer.
inconsistent with the provisions of the Judicial
Affidavit Rule. (Sec. 11, JAR) After Pedro's presentation of his evidence, the
court rendered judgment finding him guilty as

Evidence
charged and holding him civilly liable for Guidelines in the Assessment of Credibility of a
₱20,000.00. Pedro's lawyer seasonably filed a Witness
motion for reconsideration of the decision
asserting that the court erred in awarding the 1. A witness who testified in clear, positive and
civil liability on the basis of Juan's judicial convincing manner and remained consistent in
affidavit, documentary evidence which cross-examination is a credible witness; (People
Prosecutor Marilag failed to orally offer. Is the v. Comanda, G.R. No. 175880, 06 July 2007) and
motion for reconsideration meritorious? (2015
Bar) (2015 BAR) 2. Findings of fact and assessment of credibility of
a witness are matters best left to the trial court
A: NO. The motion for reconsideration is not that had the front-line opportunity to
meritorious. The judicial affidavit is not required to personally evaluate the demeanor, conduct, and
be orally offered as separate documentary evidence, behavior of the witness while testifying. (Sps.
because it is filed in lieu of the direct testimony of Paragas v. Heirs of Balacano, G.R. No. 168220, 31
the witness. It is offered, at the time the witness is Aug. 2005)
called to testify, and any objection to it should have
been made at the time the witness was presented. Q: Hesson was charged with Murder for the
(Secs. 6 and 8, A.M. No. 12-8-8-SC) Since the receipt death of Fernando. Sario was the lone witness
attached to the judicial affidavit was orally offered, for the prosecution, and he testified that he saw
there was enough basis for the court to award civil Junello hacked Fernando's body on the side
liability. using a bolo. Fernando lost consciousness.
Hesson stabbed Fernando twice in the chest
using a knife. Hesson then sliced open
I. WEIGHT AND SUFFICIENCY OF EVIDENCE Fernando's chest and took out the latter's heart
(RULE 133) using the same knife. Junello followed and took
out Fernando's liver using a bolo. Hesson and
Junello went at large, but Hesson was arrested
after a year. The RTC and the CA found Hesson
Weight of Evidence
guilty of Murder. The accused argued that the
testimony of Sario, being uncorroborated, does
It is the probative value given by the court to
not sufficiently establish his guilt beyond
particular evidence admitted to prove a fact in issue.
reasonable doubt. Is Hesson correct?
Degree of Evidence Required to Disprove the

A: NO. Sario's testimony, although uncorroborated,
Prima Facie Case established by the Party
can be relied upon. The testimony of a lone
having the Burden of Proof
eyewitness, if found positive and credible by the
trial court, is sufficient to support a conviction
A prima facie case need not be countered by a
especially when the testimony bears the earmarks
preponderance of evidence nor by evidence of
of truth and sincerity and had been delivered
greater weight. Defendant's evidence which
spontaneously, naturally and in a straightforward
equalizes the weight of plaintiff's evidence or puts
manner. Witnesses are to be weighed, not
the case in equipoise is sufficient. As a result,
numbered. Evidence is assessed in terms of quality
plaintiff will have to go forward with the proof.
and not quantity. Corroborative evidence is deemed
Should it happen that at the trial the weight of
necessary only when there are reasons to warrant
evidence is equally balanced or at equilibrium and
the suspicion that the witness falsified the truth or
presumptions operate against plaintiff who has
that his observation had been inaccurate. (People v.
burden of proof, he or she cannot prevail. (People v.
Callao y Marcelino, G.R. No. 228945, 14 Mar. 2018, J.
Santiago, G.R. Nos. 137542-43, 20 Jan. 2004)
Caguioa)

e

Remedial Law
Q: In an Information, Christopher Pacu-An identification was duly corroborated by Alvin's

(petitioner) and co-accused Peter Romer Abao testimony. (Pacu-An v. People of the Philippines, G.R.
were charged with homicide for the death of No. 237542, 16 June 2021)
Zaldy Milad. Petitioner voluntarily surrendered
to the police authorities. Petitioner and Rommel Hierarchy of quantum of evidence
entered a plea of not guilty. The RTC found
petitioner guilty beyond reasonable doubt of the PROOF
BEYOND
REASONABLE
DOUBT
crime of homicide. The CA affirmed the Decision

. . Requiredto convictan accu,ed
of the RTC in convicting petitioner of the crime Moral certaintyor that degreeof proofwhich produce,convictionin an
of Homicide. Petitioner argues that the CA

gravely erred when it upheld his conviction
. unprejudicedmind
Doe, not demandabrnlute-certaintyandthe exdu,ion of all ponibility of error
despite weak, inconsistent and unreliable

identification by the prosecution's witnesses. He
CLEAR
JL
ANDCONVINCING
EVIDENCE
claims that the inconsistent statements given by
Alicia should not be considered as a mere
. Degreeof proofwhich produce,in the mindof the courta firm belief or
inconsistency that can be lightly overlooked. He . convictiona, to the allegationrnughtto be e1tabli1hed.

Adducedto overcomeaprimafacie caseora disputablepreiumption
points to the inconsistency in Alicia's

Sinumpaang Salaysay taken during the night
Zaldy was stabbed where Alicia stated that a
JL
PREPONDERANCE
OFEVIDENCE
witness informed her that petitioner was the
one who stabbed Zaldy. However, in her open . . Degreeof proof requiredin civil ca,e,
Evidencewhich i! of greaterweight or rnperiorweight of evidencethan t hat
court examination, Alicia testified that she which i, offeredin oppo,itionto it.
herself saw petitioner stab Zaldy. Is the

petitioner guilty of the crime of homicide? lt
SUBSTANTIAL
EVIDENCE
A: YES. The discrepancy in Alicia's statements in her
Sinumpaang Salaysay and her open court testimony .. Applicablein cam filed beforeadministrativeor qua,i-judicialbodie,
Suchrelevantevidencea, a rearnnablemindmightaccepta, adequatet
,upport a concluiion
was explained by Alicia during her cross-
examination. The Supreme Court sustained the
finding of the CA that the discrepancy in Alicia's NOTE: Evidence, to be worthy of credit, must not
statement in her Sinumpaang Salaysay did not only proceed from a credible source but must also
diminish the probative value of her open court be credible in itself. It must be natural, reasonable
testimony in positively identifying petitioner as the and probable as to make it easy to believe. (People v.
perpetrator of the crime of Homicide. In Madali v. Peruelo, G.R. No. 50631, 29 June 1981)
People, the Court held that slight inconsistencies in
the declarations of witnesses hardly weaken the Proof beyond Reasonable Doubt
probative value of the witnesses' open court
testimony. Proof beyond reasonable doubt does not mean such
a degree of proof as, excluding possibility of error,
The CA was correct in sustaining the ruling of the produces absolute certainty. Moral certainty only is
RTC regarding the probative value of Alicia's required, or that degree of proof which produces
testimony in positively identifying petitioner as the conviction in an unprejudiced mind. (Sec. 2, Rule
perpetrator of the crime. The Court agrees that the 133, ROC, as amended)
minor inconsistencies in Alicia's Sinumpaang
Salaysay were not sufficient to damage the essential Moral Certainty
integrity of the prosecution's evidence in its
material whole. Alicia's positive identification That degree of certainty which will justify the trial
prevails over petitioner's defenses of denial and judge in grounding on it his verdict. It is a certainty
alibi since the latter can be easily fabricated and is that convinces and directs the understanding and
essentially unreliable. Further, Alicia's positive

2022 GOLDEN NOTES
Evidence
satisfies the reason and judgment of those who are commission of the offense. (Medina v. People, G.R.
bound to act conscientiously upon it. No. 161308, 15 Jan. 2014)
Identity of the Accused must be Proved Beyond Q: Tumbaga was watching a basketball game in
Reasonable Doubt Barangay Matingain, together with his uncle.
When he was about to board his parked
When the identity of the accused is not established motorcycle, he was shot twice at the back.
beyond reasonable doubt, acquittal necessarily Tumbaga was able to survive. Aliling's alibi was
follows. Conviction for a crime rests on the strength that he was in another Barangay for a miting de
of the prosecution’s evidence, never on the avance. Aliling's defense witness, Bathan, also
weakness of that of the defense. (People v. Jalon, G.R. testified that he was at the same basketball
No. 93729, 13 Nov. 1992) court on that night and he saw that Aliling was
about to ride his motorcycle when he was shot.
NOTE: In every criminal prosecution, the However, Bathan did not see accused Hilario
prosecution must prove two things: Aliling at the place when the shooting happened
and instead saw an unidentified man shot the
1. The commission of the crime; and private complainant.
2. The identification of the accused as the
perpetrator of the crime. What is needed is The RTC and the CA found Aliling guilty and held
positive identification made with moral that the positive allegations of the prosecution
certainty as to the person of the offender. witnesses prevailed over the denial and alibi of
(People v. Maguing, G.R. No. 144090, 26 June the defense witnesses. Ailing argued that the
2003 testimonial evidence of the prosecution cannot
be relied on as they were inconsistent and
Q: Prosecution witnesses positively identified incredible, especially against the eyewitness
Johnny as the assailant of Chris. Hence, he was account of Bathan. Are the RTC and CA correct?
convicted of Homicide. However, he contends
that the State failed to present sufficient A: NO. Positive testimony is generally given more
evidence against him in court. He sufficed that weight than the defenses of denial and alibi which
should the knife he held during a fight against are held to be inherently weak defenses because
his longtime enemies, brothers Chris and they can be easily fabricated. While, indeed, the
Michael, had been presented, it would show the defense of denial or alibi can be easily fabricated,
difference that Chris’ knife, although smaller the same can be said of untruthful accusations, in
than Johnny’s, had more blood stains but which that they can be as easily concocted.
size fits best on the mortal wound inflicted on
himself. It would thereby be ascertained that Thus, if found credible, the defenses of denial and
Chris accidentally stabbed himself upon losing alibi may be considered complete and legitimate
his balance during such aggressive fight. Is defenses. The burden of proof does not shift by the
Johnny’s contention meritorious? mere invocation of said defenses; the presumption
of innocence remains in favor of the accused. In
A: NO. The non-identification and non-presentation alibi, the accused must prove not only that he was at
of the weapon actually used in the killing did not some other place at the time the crime was
diminish the merit of the conviction on the ground committed, but that it was likewise physically
that other competent evidence and the testimonies impossible for him to be at the scene of the crime at
of witnesses had directly and positively identified the time thereof. In this case, the Court found that
and incriminated Johnny as the assailant of Chris. Ailing's alibi was straightforward, credible, and
The presentation of the weapon is not a prerequisite corroborated by an impartial witness. Bolstering
for conviction. Positive identification of the accused the alibi of Ailing is the eyewitness account of
is sufficient for the judgment of conviction despite Bathan who positively testified that he witnessed
the non-presentation of the weapon used in the the shooting incident and saw that the culprit was

e

Remedial Law
not Aliling. (Aliling v. People, G.R No. 230991, June 11, There is, however, reasonable doubt that the dita
2018, J. Caguioa) tree was cut and collected without any authority
granted by the State. It is a general principle in law
Q: In 2005, Diosdado Sama y Hinupas, Demetrio that in malum prohibitum case, good faith or motive
Masanglay y Aceveda and Bandy Masanglay y is not a defense because the law punishes the
Aceveda, residents of Barangay Baras, Baco, prohibited act itself. The penal clause of Section 77
Oriental Mindoro, cut with the use of of PD 705, as amended punishes the cutting,
unregistered power chainsaw, a Dita tree. On collecting, or removing of timber or other forest
arraignment, all three (3) accused pleaded not products only when any of these acts is done
guilty. Thereafter, they filed a Motion to Quash without lawful authority from the State. (Sama v.
Information dated July 31, 2007, alleging among People, G.R. No. 224469, 05 Jan. 2021)
others, that they are members of the Iraya-
Mangyan tribe, and as such, are governed by Preponderance of Evidence
Republic Act No. 8371, The Indigenous Peoples
Rights Act of 1997 (IPRA). Preponderance of evidence means that the evidence
adduced by one side is, as a whole, superior to or has
By Order dated August 23, 2007, the motion was greater weight than that of the other. It means
denied for being a mere scrap of paper. Trial evidence which is more convincing to the court as
followed. On August 24, 2010, the trial court worthy of belief than that which is offered in
convicted the accused. The trial court ruled that opposition thereto. (Ava v. De Guzman, A.C. No. 7649,
a dita tree with an aggregate volume of 500 14 Dec. 2011)
board feet can be classified as "timber" within
the purview of Section 68, now Section 771 of It is the weight, credit, and value of the aggregate
P.D. No. 705, as amended. Thus, cutting the dita evidence on either side and is usually considered to
tree without a corresponding permit from the be synonymous with the term “greater weight of the
DENR or any competent authority violated the evidence” or “greater weight of the credible
law. The trial court further held that a violation evidence.” It means probability of the truth,
of Section 77 of P.D. No. 705 constituted malum evidence which is more convincing to the court as
prohibitum, and for this reason, the commission worthy of belief than that which is offered in
of the prohibited act is a crime in itself and opposition thereto. (Philippine Commercial
criminal intent does not have to be established. International Bank v. Balmaceda, G.R. No. 158143, 21
The Court of Appeals affirmed. Sept. 2011)
Was his guilt proven beyond reasonable doubt? NOTE: A judgment cannot be entered in the
plaintiff’s favor if his or her evidence still does not
A: NO. In practice, there is proof beyond a suffice to sustain his cause of action.
reasonable doubt where the judge can conclude:
"All the above, as established during trial, lead to no Matters that the court may consider in
other conclusion than the commission of the crime determining whether there is preponderance of
as prescribed in the law." The prosecution was not evidence
able to prove the guilt of petitioners beyond
reasonable doubt. Section 77 of PD 705, as 1. All the facts and circumstances of the case;
amended, punishes, among others, "any person who 2. The witnesses' manner of testifying, their
shall cut, gather, collect, removed timber or other intelligence, their means and opportunity of
forest products from any forest land, or timber from knowing the facts to which they are testifying,
alienable or disposable public land, or from private the nature of the facts to which they testify, the
land, without any authority shall be punished with probability or improbability of their testimony;
the penalties imposed under Articles 309 and 310 of 3. The witnesses’ interest or want of interest, and
the Revised Penal Code...." their personal credibility so far as the same may
legitimately appear upon the trial; and

Evidence
4. The number of witnesses, though the transactions, Uy did not remit the payments to
preponderance is not necessarily with the Cathay's treasury department. Was Cathay able
greater number. (Sec. 1, Rule 133, ROC, as to prove by preponderance of evidence its cause
amended) of action against Uy?
NOTE: To persuade by the preponderance of A: YES. In civil cases, the party having the burden of
evidence is not to take the evidence quantitatively proof must establish its cause of action by a
but qualitatively. (Riano, 2019) preponderance of evidence, or that "evidence which
is of greater weight or is more convincing than that
Related jurisprudence which is in opposition to it." Preponderance of
evidence "does not mean absolute truth; rather, it
In civil cases, only a preponderance of evidence or means that the testimony of one side is more
"greater weight of the evidence" is required. While believable than that of the other side, and that the
the charge invoices are not actionable documents probability of truth is on one side than on the other."
per se, they provide details on the alleged The guidelines in the determination of
transactions. These documents need not be preponderance of evidence are provided under
attached to or stated in the complaint as these are Section 1, Rule 133 of the Rules of Court:
evidentiary in nature. In fact, the cause of action is
not based on these documents but on the contract of SECTION 1. Preponderance of evidence,
sale between the parties. Here, the delivery of the how determined. — In civil cases, the
supplies and materials was duly proved by the party having the burden of proof must
charge invoices and purchase orders indicating that establish his [or her] case by a
Asian Construction indeed ordered supplies and preponderance of evidence. In
materials from Highett and that these were determining where the preponderance or
delivered. (Asian Construction and Development superior weight of evidence on the issues
Corporation v. Mendoza, G.R. No. 176949, 27 June involved lies, the court may consider all
2012) the facts and circumstances of the case, the
witnesses' manner of testifying their
Q: Cathay hired Uy as material handling officer intelligence, their means and opportunity
tasked with the sale of special assorted steel of knowing the facts to which they are
bars known as retazos, authorized to accept testifying, the nature of the facts to which
cash payments directly from customers to be they testify, the probability or
remitted immediately to Cathay's treasury improbability of their testimony, their
department. Sometime in March 2008, Cathay interest or want of interest, and also their
discovered that cash proceeds from the sale of personal credibility so far as the same
retazos for the month of February 2008 covered legitimately appear upon the trial. The
by several delivery receipts amounting to court may also consider the number of
P409,280.00 were not remitted to its treasury witnesses, though the preponderance is
department. Uy's signature was on the delivery not necessarily with the greater number.
receipts. Cathay sent a demand letter for
payment of the amount covered by the Thus, the determination of preponderance of
questionable transactions, but Uy failed to pay evidence depends greatly on the credibility of the
or settle with Cathay. Cathay filed a Complaint witnesses. Hence, in the evaluation of their
against Uy for Sum of Money and Damages. testimonies, the courts must be guided by the well-
Cathay presented the delivery receipts, also settled doctrine that "[w]hen it comes to [the
known as "scrap miscellaneous sales (SMS)," witnesses'] credibility, the trial court's assessment
covering the five transactions when Uy allegedly deserves great weight, and is even conclusive and
authorized the release of the retazos on a cash binding, unless the same is tainted with
transaction basis, as well as the corresponding arbitrariness or oversight of some fact or
statements of account to prove that during such circumstance of weight and influence." Here, Cathay

e

Remedial Law
was able to prove that Uy authorized on four Clear and Convincing Evidence
occasions the release of the retazos sold on a cash
transaction basis, for which he had the duty to It is that degree of evidence that produces in the
accept cash payment, but failed to remit the mind of the trier of fact a firm belief or conviction as
payments to Cathay's treasury department. (Cathay to allegations sought to be established. It is
Pacific Steel Corporation v. Charlie Chua Uy, Jr., G.R. intermediate, being more than preponderance, but
No. 219317, 14 June 2021) not to the extent of such certainty as is required
beyond reasonable doubt as in criminal cases.
Substantial Evidence (Black’s Law Dictionary, 2004)
Substantial evidence applies to cases filed before Instances when Clear and Convincing Evidence
the administrative or quasi-judicial bodies and is Required
which requires that in order to establish a fact, the
evidence should constitute that amount of relevant 1. When proving forgery (Citibank, N.A. v.
evidence which a reasonable mind might accept as Sabeniano, G.R. No. 156132, 06 Feb. 2007);
adequate to justify a conclusion. (Sec. 6, Rule 133,
ROC). Substantial evidence is more than mere 2. When proving ownership over a land in
scintilla. annulment or reconveyance of title (Manotok
Realty, Inc. v. CLT Realty Development Corp., G.R.
The requirement is satisfied where there is No. 123346, 14 Dec. 2007);
reasonable ground to believe that the petitioner is
guilty of the act or omission complained of, even if 3. When invoking self-defense, the onus is on the
the evidence might not be overwhelming. (Office of accused-appellant to establish by clear and
the Deputy Ombudsman for Luzon v. Dionisio, G.R. No. convincing evidence his justification for the
220700, 10 July 2017) killing (People v. Tomolin, G.R. No. 126650, 28
July 1999);
NOTE: In a petition for a writ of amparo, the parties
shall establish their claims by substantial evidence. 4. When proving the allegation of frame-up and
(Sec 17, The Rule on the Writ of Amparo) extortion by police officers in most dangerous
drug cases (People v. Boco, G.R. No. 129676, 23
Preponderance of Evidence vs. Substantial June 1999);
Evidence (2003 BAR)
5. When proving physical impossibility for the
PREPONDERANCE OF SUBSTANTIAL accused to be at the crime scene when using
EVIDENCE EVIDENCE alibi as a defense (People v. Cacayan, G.R. No.
As to Nature or Definition 180499, July 9, 2008); (People v. Cacayan, G.R.
That amount of No. 180499, 09 July 2008);
The evidence as a relevant evidence
whole adduced by one which a reasonable 6. When using denial as a defense like in
side is superior to that might mind accept as prosecution for violation of the Dangerous
of the other. adequate to justify a Drugs Act (People v. Mustapa, G.R. No. 141244,
conclusion 19 Feb. 2001);
As to Applicability
Applicable in 7. To overcome the presumption of due execution
Applicable in civil of notarized instruments (Viaje v. Pamintel, G.R.
administrative cases or
cases No. 147792, 23 Jan. 2006)
quasi-judicial bodies
8. When proving bad faith to warrant an award of

moral damages (Resolution of the SC in Cual v.

Evidence
Leonis Navigation, G.R. No. 167775, 10 Oct. without ruling on its merits. CA ruled that
2005); Ayesha failed to comply with its Resolution
which required hereto submit the lacking
9. When proving that the police officers did not Exhibits "6" and "9" in her petition, within the
properly perform their duty or that they were period required by law. Was it proper to dismiss
inspired by an improper motive (People v. the petition for review based on procedural
Concepcion, G.R. No. 178876, 27 June 2008); or grounds?
10. When a person seeks confirmation of an A: NO. Cases shall be determined on the merits, after
imperfect or incomplete title to a piece of land full opportunity to all parties for ventilation of their
on the basis of possession by himself and his causes and defenses, rather than on technicality or
predecessors-in-interest, he must prove with some procedural imperfections. The CSC's decisions
clear and convincing evidence compliance with were anchored principally on the sole testimony of
the requirements of the applicable law Loraine that Ayesha took PRC forms (renewal,
(Republic v. Imperial Credit Corp., G.R. No. application and oath forms) from her and sent them
173088, 25 June 2008; Riano, 2009); and to PREMPC to be sold. There was no evidence
presented to show that Ayesha actually delivered
11. In granting or denying bail in extradition the forms to PREMPC. Likewise, there was no
proceedings. (Government of Hongkong Special evidence to support the allegation that the forms
Administrative Region v. Olalia, G.R. No. 153675, were sold by Ayesha or PREMPC. In this case, CSC
19 Apr. 2007) has relied solely on the evidence presented by
Loraine without taking into account the
NOTE: The list is NOT exclusive. countervailing evidence established by Ayesha.
(Sonia Mahinay v CA & Alma Genotiva, G.R. 230355,
Q: Loraine filed a complaint before the Civil 18 Mar. 2021)
Service Commission Regional Office No. VIII
(CSCRO VIII) against several employees of the Trial Court’s Findings as to the Credibility of
Professional Regulation Commission (PRC) Witnesses, Not Disturbed on Appeal
Tacloban Office, including Ayesha, for conflict of
interest, grave abuse of authority, dishonesty The trial court’s findings of fact will not be disturbed
and violation of graft and corrupt practices and on appeal, unless there is a clear showing that it
the Anti-Red Tape Act. PREMPC, a cooperative plainly overlooked matters of substance which, if
formed by some of the employees of the PRC, considered, might affect the results of the review.
operates inside the premises of PRC Tacloban The credibility of witnesses is best determined by
Office. It provides photocopying services and the trial judge, who has the direct opportunity to
sells mailing envelopes, mail stamps and observe and evaluate their demeanor on the
documentary stamps to PRC clients. On several witness stand. (People v. Pacuancuan, G.R. No.
instances, the above-mentioned employees left 144589, 16 June 2003)
their posts during office hours, took PRC forms
(renewal, application for examination and oath Uncorroborated Testimony of an Accused who
forms), documentary stamps, and window turned into a State Witness Sufficient to Convict
envelopes with mailing stamps from PRC office his Co-accused
and sent them to PREMPC to be sold to the
latter's customers. CSCRO VIII issued a Formal It may suffice to convict his co-accused if it is given
Charge against Ayesha and Cedie finding a prima in a straightforward manner and is full of details
facie case for the administrative offense of Grave which by their nature could not have been the result
Misconduct. CA directed Ayesha to submit of deliberate afterthought, otherwise, it needs
documents/pleadings that were not included in corroboration, the presence or lack of which may
her petition for review. But due to her failure to ultimately decide the case of the prosecution and
do so, the CA dismissed the petition for review

e

Remedial Law
the fate of the accused. (People v. Sunga, G.R. No. (People v. Negrosa, G.R. Nos. 142856-57, 25 Aug.
126029, 27 Mar. 2003) 2003)
Sufficiency of Evidence When the Maxim Falsus in uno, falsus in omnibus

applies
In determining the sufficiency of evidence, what
matters is not the number of witnesses but the 1. That the false testimony is as to one or more
credibility and the nature and quality of their material points; and
testimonies. The testimony of a lone witness is 2. That there should be conscious and deliberate
sufficient to support a conviction if found positive intention to falsify a material point. (People v.
and credible. (Ceniza-Manantan v. People, G.R. No. Pacapac, G.R. No. 90623, 07 Sept. 1995)
156248, 28 Aug. 2007)
Extrajudicial Confession is NOT Sufficient
Partial Credibility of a Witness Ground for Conviction
The testimony of a witness may be believed in part An extrajudicial confession made by an accused,
and disbelieved in another part, depending on the shall not be sufficient ground for conviction, unless
probabilities and improbabilities of the case. corroborated by evidence of corpus delicti. (Sec. 3,
(People v. Tan, G.R. No. 176526, 08 Aug. 2007) Rule 133, ROC, as amended)
NOTE: If the testimony of the witness on a material When Circumstantial Evidence is Sufficient for
issue is willfully false and given with an intention to Conviction (2017 BAR)
deceive, the court may disregard all the witness’
testimony under the Falsus in uno, falsus in omnibus 1. There are more than one circumstances;
rule. (Riano, 2019) This is not a mandatory rule of 2. The facts from which the inferences are derived
evidence but is applied by the courts in its are proven; and
discretion. The court may accept and reject portions 3. The combination of all the circumstances is
of the witness’ testimony depending on the inherent such as to produce a conviction beyond
credibility thereof. (Regalado, 2008) reasonable doubt. (Sec. 4, Rule 133, ROC, as
amended)
Falsus in uno, falsus in omnibus (in relation to
Credibility of Witness) NOTE: Inferences cannot be based on other
inferences. (Sec. 4, Rule 133, ROC, as amended)
Literally, falsus in uno, falsus in omnibus means
“false in one thing, false in everything.” The corollary rule is that the circumstances proven
must constitute an unbroken chain which leads to
If the testimony of a witness on a material issue is one fair and reasonable conclusion pointing to the
willfully false and given with an intention to deceive, accused, to the exclusion of all others, as the guilty
the jury may disregard all the witness’ testimonies. person. (Trinidad v. People, G.R. No. 192241, 13 June
(Hargrave v. Stockloss, 127 N.J.L. 262, 21 A.2d 820, 2012)
823)
Q: A criminal complaint for simple arson was
The principle of falsus in uno, falsus in omnibus is not filed against Allysa and she was convicted.
strictly applied in this jurisdiction. It deals only with Allysa then appealed. She argued that none of
the weight of the evidence and is not a positive rule the prosecution’s witnesses had positively
of law. Modern trend in jurisprudence favors more identified her as the person who burned the
flexibility when the testimony of a witness may be nipa hut. CA affirmed the Decision of the RTC in
partly believed and partly disbelieved depending on toto. Allysa moved for reconsideration but it was
the corroborative evidence presented at the trial. denied. Thus, Allysa filed a Petition for Review
on Certiorari arguing that the CA erred in

Evidence
upholding her conviction based on they disappeared from her view; she tried to
circumstantial evidence, which, being merely pull Angel away from Totoy, but Angel was
based on conjecture, falls short of proving her heavy; she ran because she was afraid, she might
guilt beyond reasonable doubt. No direct be made to go with them; she went home, played
evidence was presented to prove that she some more and ate lunch; and, next time she saw
actually set fire to Marie’s nipa hut. Moreover, Angel, Angel was already inside their house,
there were two (2) incidents that occurred, dead. BBB's testimony is corroborated by
which should be taken and analyzed separately. Abonger, her father. Further, the prosecutions
Is Allysa guilty of simple arson? presented other witnesses. RTC convicted
Carbonay of rape with homicide, but CA
A: YES. The identity of the perpetrator of a crime convicted him only of attempted rape and
and a finding of guilt may rest solely on the strength homicide. Despite lack of direct evidence, may
of circumstantial evidence. The commission of a Carbonay be convicted?
crime, the identity of the perpetrator, and the
finding of guilt may all be established by A: YES. While it is a long-standing rule that medical
circumstantial evidence. The circumstances must be finding is not an element of rape and cannot
considered as a whole and should create an establish the one responsible for the same,
unbroken chain leading to the conclusion that the jurisprudence dictates that in the absence of a direct
accused authored the crime. The proven evidence, it is corroborative of strong
circumstances must be "consistent with each other, circumstantial evidence that the victim was raped.
consistent with the hypothesis that the accused is
guilty, and at the same time inconsistent with the CA finds that Carbonay is guilty of attempted rape
hypothesis that he is innocent, and with every other with homicide, because the doctor did not declare
rational hypothesis except that of guilt." In this case, that there was the slightest penetration of the
no one saw petitioner actually set fire to the nipa victim's vagina and the whitish discharge found by
hut. Nevertheless, the prosecution has established the doctor on the victim's vaginal canal was not
multiple circumstances, which, after being tested for chemical analysis. The medical
considered in their entirety, support the conclusion examination on the samples taken from the vagina
that petitioner is guilty beyond reasonable doubt of is not indispensable to an inference leading to rape.
simple arson. (Marlon Bacerra vs. People of the However, based on the hematoma on the left
Philippines, G.R. No. 204544, 03 July 2017) inguinal area, as well as on the perineal area of the
victim's vagina, the position of the victim when she
Q: BBB testified that: she was a classmate in sustained the hematoma and the removed
Kindergarten, friend and neighbor of the victim, underwear one (1) meter away from the victim, we
five-year-old AAA, who was fondly called Angel; are convinced that, at the very least, there was an
she knows that Angel is now dead; the last time attempt to rape the victim. Dr. Solis testified that the
she saw Angel was when she and Angel played perpetrator could have been trying his best to rape
with mud forming it into objects, underneath the victim.
their house in Samar at noontime after class;
thereafter, they went to pick santol; they also No other evidence indicates that Carbonay
went biking; then they went to pathway going to succeeded in having a carnal knowledge of the
Angel's house; Angel went to a place where there victim. (People of the Philippines v Carbonay, G.R.
was a gemelina plant with Totoy [the nickname 250649, 24 Mar. 2021)
of Cabornay); she knows Totoy who is from
Barangay Atigawan because he was often seen in Weight to be given Opinion of Expert Witness,
the house of Nay Goring, the grandmother of How Determined
Angel; their house and the house of Nay Goring
are just near without any house in between; she The court has wide latitude of discretion in
kept on looking at them (Totoy and Angel) determining the weight to be given to such opinion,
headed to the direction of Brgy. Nabong, until and for that purpose may consider the following:

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Remedial Law
a. Whether the opinion is based on sufficient facts Thus, the crime committed should be attempted, not
or data; frustrated, homicide. The victim's attending
b. Whether it is the product of reliable principles physician did not testify on the gravity of the wound
and methods; inflicted on the victim.
c. Whether the witness has applied the principles
and methods to the reliability of the facts of the The evidence fails to prove with moral certainty that
case; and Andong would have died from the gunshot wound
d. Such other factors as the court may deem without timely medical intervention. Unfortunately,
helpful to make such determination. (Sec. 5, the prosecution failed to present Dr. Manubag, the
Rule 133, ROC, as amended) physician who treated Andong and administered
the alleged life-saving procedure. The Medical
Q: At 3:30 o'clock in the morning of June 21, Certificate alone, without the testimony of Dr.
1997, Atilano Andong (Andong) was sleeping at Manubag is inadequate proof of the nature and
home with his common-law wife Marilou extent of Andong's injury. This lacuna may not be
Gamboa (Gamboa) and their child. Suddenly, filled with the testimony of the expert witness Dr.
Quijano started banging on their door and Paradela.
shouting Andong's name. When Andong rose
from the bed, he was surprised to see Quijano While it is true that the prosecution and the defense
standing 60 centimeters away from him, stipulated on the qualification of Dr. Paradela, this
beaming a flashlight at him. Then, Quijano stipulation does not in any way mean that the Court
suddenly shot Andong on his right shoulder. must accord probative value and weight to his
Gamboa pleaded for Quijano to stop. testimony. The stipulation solely pertained to the
physician's qualification was an expert witness
Andong's neighbors Chona Baguio (Baguio) and being a medical doctor." It did not dispense with the
Rosemarie Barrellano (Barrellano) heard a prosecution's burden to prove the elements of the
gunshot. They went outside of their house and offense.
saw Quijano holding a handgun. Thereafter,
they saw Andong blood-stained and with a Dr. Paradela's statement was so curt and wanting in
wound on his right shoulder. essential details that he failed to furnish sufficient
facts and data relevant to the charge. Moreover, the
Andong was rushed to the hospital where he fact that the RTC and the CA gave probative value to
underwent an operation. He was treated by Dr. Dr. Paradela's expert opinion does not in any way
Prudencio Manubag (Dr. Manubag) and was bind this Court to blindly adopt the same finding,
confined for more than two weeks. especially in light of facts warranting a different
conclusion. (Quijano v. People, G.R. No. 202151, 10
Is Quijano guilty of frustrated murder? Feb. 2021)
A: NO. Quijano is not guilty of frustrated murder, but Alibi

rather of attempted murder. In Serrano v. People,
the Court cautioned that the accused may not be It is a defense where an accused claims that he was
convicted of frustrated homicide in the absence of somewhere else at the time of the commission of the
clear evidence establishing that the injury would offense. It is one of the weakest defenses an accused
have been fatal if not medically attended to. When may avail because of the facility with which it can be
nothing in the evidence shows that the wound fabricated, just like a mere denial. (People v.
would be fatal without medical intervention, the Esperanza, G.R. Nos. 139217-24, 27 June 2003) When
character of the wound enters the realm of doubt; this is the defense of the accused, it must be
under this situation, the doubt created by the lack of established by positive, clear and satisfactory
evidence should be resolved in favor of the evidence.
petitioner. Thus, the crime committed should be
attempted, not frustrated, homicide. petitioner.

Evidence
NOTE: A categorical and positive identification of an purpose. (People v. Claudio Teehankee, Jr., G.R.
accused, without any showing of ill-motive on the Nos. 111206-08, 06 Oct. 1995)
part of the eyewitness testifying on the matter,
prevails over an alibi. (People v. Gingos and Margote, NOTE: A police line-up is merely a part of the
G.R. No. 176632, 11 Sept. 2007) investigation process by police investigators to
ascertain the identity of offenders or confirm
For the defense of alibi to prosper, the accused must their identification by a witness to the crime.
show that: Police officers are not obliged to assemble a
police line-up as a condition sine qua non to
1. He or she was somewhere else; and prove the identity of an offender. If, on the basis
2. It was physically impossible for him to be at the of the evidence on hand, police officers are
scene of the crime at the time of its commission certain of the identity of the offender, they need
(People v. Gerones, et al., G.R. No. L-6595, 29 Oct. not require any police line-up anymore.
1954) (Tapdasan, Jr. v. People, G.R. No. 141344, 21 Nov.
2002)
Alibi may serve as basis for acquittal if it can really
be shown by clear and convincing evidence that it Q: Tumbaga was watching a basketball game in
was indeed physically impossible for the accused to Barangay Matingain, together with his uncle.
be at the scene of the crime at the time of When he was about to board his parked
commission. (People v. Cacayan, G.R. No. 180499, 09 motorcycle, he was shot twice at the back.
July 2008) Tumbaga was able to survive. Aliling's alibi was
that he was in another Barangay for a miting de
For the defense of alibi to prosper, the requirements avance. Aliling's defense witness, Bathan, also
of time and place must be strictly met. (Ibanez v. testified that he was at the same basketball
People, G.R. No. 190798, 27 Jan. 2016) court on that night and he saw that Aliling was
about to ride his motorcycle when he was shot.
Out-of-Court Identification However, Bathan did not see accused Hilario
Aliling at the place when the shooting happened
It is a means of identifying a suspect of a crime and and instead saw an unidentified man shot the
is done thru: private complainant. The RTC and the CA found
Aliling guilty and held that the positive
1. Show-ups: where the suspect alone is brought allegations of the prosecution witnesses
face-to-face with the witness for identification; prevailed over the denial and alibi of the
defense witnesses. Aliling argued that the
NOTE: Eyewitness identification is often testimonial evidence of the prosecution cannot
decisive of the conviction or acquittal of an be relied on as they were inconsistent and
accused. Identification of an accused through incredible, especially against the eyewitness
mug shots is one of the established procedures account of Bathan. Are the RTC and CA correct?
in pinning down criminals. However, to avoid
charges of impermissible suggestion, there A: NO. Positive testimony is generally given more
should be nothing in the photograph that would weight than the defenses of denial and alibi which
focus attention on a single person. (People v. are held to be inherently weak defenses because
Villena, G.R. No. 140066, 14 Oct. 2002) they can be easily fabricated. While, indeed, the
defense of denial or alibi can be easily fabricated,
2. Mug shots: where photographs are shown to the same can be said of untruthful accusations, in
the witness to identify the suspect; or that they can be as easily concocted. Thus, if found
credible, the defenses of denial and alibi may be
3. Line-ups: where a witness identifies the considered complete and legitimate defenses. The
suspect from a group of persons lined up for the burden of proof does not shift by the mere
invocation of said defenses; the presumption of

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Remedial Law
innocence remains in favor of the accused. In alibi, Corpus Delicti

the accused must prove not only that he was at some
other place at the time the crime was committed, It is the actual commission by someone of the
but that it was likewise physically impossible for particular crime charged. It refers to the fact of the
him to be at the scene of the crime at the time commission of the crime, not to the physical body of
thereof. the deceased or to the ashes of a burned building.
The corpus delicti may be proven by the credible
In this case, the Court found that Aliling's alibi was testimony of a sole witness, not necessarily by
straightforward, credible, and corroborated by an physical evidence. (Rimorin v. People, G.R. No.
impartial witness. Bolstering the alibi of Aliling is 146481, 30 Apr. 2003)
the eyewitness account of Bathan who positively
testified that he witnessed the shooting incident and Elements of Corpus Delicti
saw that the culprit was not Aliling. (Aliling v. People,
G.R. No. 230991, 11 June 2018, J. Caguioa) 1. Proof of the occurrence of a certain event; and
2. A person’s criminal responsibility for the act.
Admissibility of Out-of-Court Identification (People v. Corpuz, G.R. No. 148919, 17 Dec. 2002)
It is admissible and reliable when it satisfies the NOTE: The identity of the accused is not a necessary
“totality of circumstances” test. Under the “totality element of the corpus delicti.
of circumstances” test, the following factors are
considered: Plea of Guilty in Open Court Sufficient without
Proof of Corpus Delicti
1. Witness’ opportunity to view the criminal at the
time of the crime; A plea of guilty at the arraignment in open court,
2. Witness’ degree of attention at that time; which is a confession of guilt by the defendant, is
3. Accuracy of any prior description given by the sufficient to support a conviction without necessity
witness; of proof aliunde of corpus delicti. In contrast, an
4. Level of certainty demonstrated by the witness extrajudicial confession made by defendant does
at the identification; not warrant a conviction unless corroborated by
5. Length of time between the crime and the independent evidence of corpus delicti. (Francisco,
identification; and 1996)
6. Suggestiveness of the identification procedure.
(People v. Claudio Teehankee, Jr., G.R. Nos. Q: Jose Mariposa was charged with violation of
111206-08, 06 Oct. 1995) Sec. 4, Art. 2 of the Dangerous Drugs Act of 1972.
He was apprehended thru a buy-bust operation.
Frame-up During trial the prosecution failed to produce
the marijuana sticks that Mariposa sold during
Allegations of frame-up by police officers are the entrapment operation. Is there a need to
common and standard defenses in most dangerous produce the marijuana sticks to convict the
drugs cases. For this claim to prosper, the defense accused?
must adduce clear and convincing evidence to
overcome presumption that government officials A: YES. The elements necessary for a charge of
have performed their duties in a regular and proper illegal sale of marijuana are: (1) the identity of the
manner. Thus, in the absence of proof of motive to buyer and the seller, the object, and consideration;
falsely impute such a serious crime against the and (2) the delivery of the thing sold and the
accused, the presumption of regularity in the payment therefore. It is indispensable that the
performance of official duty shall prevail. (People v. identity of the marijuana which constitutes the
Almodiel, G.R. No. 200951, 05 Sept. 2012) corpus delicti must be established before the court.
During the trial, the sticks of marijuana were never
presented as evidence to prove that appellant

Evidence
indeed sold the same during the entrapment established, or an obligation extinguished, or by
operation. It is indispensable in every prosecution which a fact may be proved and affirmed, which
for illegal sale of marijuana, a prohibited drug, is the is received, recorded, transmitted, stored
submission of proof that the sale for the illicit drug processed, retrieved or produced
took place between the poseur-buyer and the seller electronically; and
thereof, and the presentation further of the
marijuana, the corpus delicti, as evidence in court. ii. It includes digitally signed documents and any
(People v. Rigodon, G.R. No. 111888, 08 Nov. 1994) print-out or output, readable by sight or other
means, which accurately reflects the electronic
Res ipsa loquitur data message or electronic document. (Sec. 1(h),
Rule 2, A.M. No. 01-07-01-SC)
It literally means the “thing speaks for itself”. This
doctrine provides that the fact of the occurrence of For the document to be deemed electronic, it is
an injury, taken with the surrounding important that it be received, recorded, transmitted,
circumstances. Where the thing which caused the stored, processed, retrieved, or produced
injury complained of is shown to be under the electronically. The Rule does not absolutely require
management of the defendant or his servants and that that the electronic document be initially
the accident is such as in ordinary course of things generated or produced electronically. (Riano, 2019)
does not happen if those who have its management
or control use proper care, it affords reasonable Electronic Data Message
evidence, in the absence of participation by the
defendant, that the accident arose from or was Information generated, sent, received, or stored by
caused by the defendant's want of care. (Ramos v. electronic, optical or similar means. (Sec. 1(f), Rule
CA, G.R. No. 124354, 29 Dec. 1999) 2, A.M. No. 01-07-01-SC)
Application of the Doctrine DOES NOT Dispense Electronic Documents as Functional Equivalent
with the Requirement of Proof of Negligence of Paper-based Documents
It is considered merely as evidentiary or in the Whenever a rule of evidence refers to the term of
nature of procedural rule. It is simply in the process writing, document, record, instrument,
of such proof, permitting the plaintiff to present memorandum or any other form of writing, such
enough of the attending circumstances to invoke the term shall be deemed to include an electronic
doctrine, creating an inference or presumption of document. (Sec. 1, Rule 3, A.M. No. 01-07-01-SC)
negligence and thereby place on the defendant the
burden of going forward with the proof to the Admissibility
contrary. (Ramos, et al. v. CA, G.R. No. 124354, 29 Dec.
1999) 1. It must comply with the rules on admissibility
prescribed by the Rules of Court and related
laws; and
J. RULES ON ELECTRONIC EVIDENCE 2. If must be authenticated in the manner
(A.M. No. 01-7-01-SC) prescribed by these Rules.
Privileged Communication
Electronic Document (2012 BAR)

The confidential character of a privileged
communication is not denied solely on the ground
i. Information or the representation of
that it is in the form of an electronic document.
information, data, figures, symbols or other
modes of written expression, described or
however represented, by which a right is

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Remedial Law
Electronic Data Message vs. Electronic What differentiates an electronic document from a
Document paper-based document is the manner by which the
information is processed. By no stretch of the
ELECTRONIC DATA ELECTRONIC imagination can a person’s signature affixed
MESSAGE DOCUMENT manually be considered as information
As to Definition electronically received, recorded, transmitted,
Information or the stored, processed, retrieved or produced. Hence, the
representation of argument that since the paper printouts were
information, data, produced through an electronic process, then these
figures, symbols or photocopies are electronic documents as defined in
other modes of written the Rules on Electronic Evidence is obviously an
expression, described erroneous, if not preposterous, interpretation of the
or however law. (NPC v. Codilla, G.R. No. 170491, 04 Apr. 2007)
represented, by which
Information generated, a right is established or Original of an electronic document
sent, received or stored an obligation
by electronic, optical or extinguished, or by An electronic document shall be regarded as the
similar means. which a fact may be equivalent of an original document under the Best
proved and affirmed, Evidence Rule if it is a printout or output readable
which is received, by sight or other means, shown to reflect the data
recorded, transmitted, accurately. (Sec. 1, Rule 4, A.M. No.01-07-01-SC)
stored, processed,
retrieved or produced Copies as Equivalents of the Originals
electronically.
It includes digitally GR: Copies or duplicates shall be regarded as the
signed documents. equivalent of the original when:
While "data message" has reference to information 1. A document is in two or more copies executed
electronically sent, stored or transmitted, it does not at or about the same time with identical
necessarily mean that it will give rise to a right or contents; or
extinguish an obligation, unlike an electronic 2. It is a counterpart produced by the same
document. Evident from the law, however, is the impression as the original, or from the same
legislative intent to give the two terms the same matrix, or by mechanical or electronic re-
construction. (MCC Industrial Sales Corporation v. recording, or by chemical reproduction, or by
Ssangyong Corporation, G.R. No. 170633, 17 Oct. other equivalent techniques which are
2007) accurately reproduces the original. (Sec. 2, Rule
4, A.M. No.01-07-01-SC)
Related Jurisprudence
XPNs:
The terms "electronic data message" and "electronic 1. A genuine question is raised as to the
document," as defined under the Electronic authenticity of the original; or
Commerce Act of 2000, do not include a facsimile 2. In the circumstances, it would be unjust or
transmission. Accordingly, a facsimile transmission inequitable to admit a copy in lieu of the
cannot be considered as electronic evidence. It is original. (Sec. 2, Rule 4, A.M. No.01-07-01-SC)
not the functional equivalent of an original under
the Best Evidence Rule and is not admissible In Maliksi v. COMELEC (G.R. No. 203302, 11 Apr.
as electronic evidence. (Torres v. PAGCOR, G.R. No. 2013), the Supreme Court ruled that the picture
193531, 14 Dec. 2011) images of the ballots are electronic documents that
are regarded as the equivalents of the original
official ballots themselves. Citing Vinzons-Chato v.

Evidence
House of Representatives Electoral Tribunal, the 5. The nature and quality of the information which
Court held that "the picture images of the ballots, as went into the communication and information
scanned and recorded by the PCOS, are likewise system upon which the electronic data message
‘official ballots’ that faithfully capture in electronic or electronic document was based; or
form the votes cast by the voter, as defined by
Section 2(3) of R.A. No. 9369. As such, the printouts 6. Other factors which the court may consider as
thereof are the functional equivalent of the paper affecting the accuracy or integrity of the
ballots filled out by the voters and, thus, may be electronic document or electronic data
used for purposes of revision of votes in an electoral message. (Sec. 1, Rule 7, A.M. No.01-07-01-SC)
protest."
Affidavit of Evidence
That the two documents—the official ballot and its
picture image—are considered "original All matters relating to the admissibility and
documents" simply means that both of them are evidentiary weight of an electronic document may
given equal probative weight. In short, when either be established by an affidavit stating facts of direct
is presented as evidence, one is not considered as personal knowledge of the affiant or based on
weightier than the other. authentic records. The affidavit must affirmatively
show the competence of the affiant to testify on the
Burden of Proving Authenticity matters contained therein. (Sec. 1, Rule 9, A.M.
No.01-07-01-SC)
The person offering the document has the burden to
prove its authenticity. (Sec. 1, Rule 5, A.M. No.01-07- NOTE: Cross-examination of the deponent is
01-SC) allowed as a matter of right by the adverse party.
(Sec. 2, Rule 9, A.M. No.01-07-01-SC)
Evidentiary Weight of Electronic Documents;
Factors for Assessing Evidentiary Weight Inapplicability of the Hearsay Rule
1. The reliability of the manner or method in A memorandum, report, record or data compilation
which it was generated, stored or of acts, events, conditions, opinions, or diagnoses,
communicated, including but not limited to made by electronic, optical or other similar means
input and output procedures, controls, tests and at or near the time of or from transmission or supply
checks for accuracy and reliability of the of information by a person with knowledge thereof,
electronic data message or document, in the and kept in the regular course or conduct of a
light of all the circumstances as well as any business activity, and such was the regular practice
relevant agreement; to make the memorandum, report, record, or data
compilation by electronic, optical or similar means,
2. The reliability of the manner in which its all of which are shown by the testimony of the
originator was identified; custodian or other qualified witnesses, is excepted
from the rule on hearsay evidence. (Sec. 1, Rule 8,
3. The integrity of the information and A.M. No.01-07-01-SC)
communication system in which it is recorded
or stored, including but not limited to the NOTE; The presumption provided for in Sec. 1, Rule
hardware and computer programs or software 8 may be overcome by evidence of the
used as well as programming errors; untrustworthiness of the source of information or
the method or circumstances of the preparation,
4. The familiarity of the witness or the person who transmission or storage. (Sec. 2, Rule 8, A.M. No.01-
made the entry with the communication and 07-01-SC)
information system;

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Remedial Law
Manner of Authentication of Electronic shall be proven by the testimony of a person who

Documents was a party to the same or who has personal
knowledge thereof. In this case, complainant who
1. By evidence that it had been digitally signed by was the recipient of said messages and therefore
the person purported to have signed the same; had personal knowledge thereof testified on their
2. By evidence that other appropriate security contents and import. Respondent herself admitted
procedures or devices as may be authorized by that the cellphone number reflected in
the Supreme Court or by law for authentication complainant’s cellphone from which the messages
of electronic documents were applied to the originated was hers.
document; or
3. By other evidence showing its integrity and Moreover, any doubt respondent may have had as
reliability to the satisfaction of the judge. (Sec. to the admissibility of the text messages had been
2, Rule 5, A.M. No.01-07-01-SC) laid to rest when she and her counsel signed and
attested to the veracity of the text messages
NOTE: The above-mentioned requirements will between her and complainant. There is no doubt as
only apply when the document is a private to the probative value of the text messages as
document and the same is offered as an authentic evidence in determining the guilt or lack thereof of
document. (Riano, 2019) respondent. (Nuez v. Cruz-Apao, A.M. No. CA-05-18-
P, 12 Apr. 2005)
Manner of Authentication of Electronic
Signatures By analogy, a deleted Facebook post may be
admitted as an ephemeral electronic
1. By evidence that a method or process was communication subject to the exclusionary rule of
utilized to establish a digital signature and whether it was illegally obtained or not.
verify the same;
2. By any other means provided by law; or Q: Is the printout of a photograph from your
3. By any other means satisfactory to the judge as mobile phone showing a fly in the soup you
establishing the genuineness of the electronic ordered admissible evidence in an action for
signature. (Sec. 2, Rule 6, A.M. No.01-07-01-SC) damages against the restaurant owner? Explain
briefly. (BAR 20-21)
Audio, Video, and Similar Evidence
A: YES. The printout of a photograph from a mobile
Audio, photographic and video evidence of events, phone is admissible in evidence. Under the Rules on
acts or transactions shall be admissible provided it Evidence, if a document or data is stored in a
shall be shown, presented or displayed to the court computer or similar device, any printout therefrom
and shall be identified, explained or authenticated is an original and thus admissible in evidence. (Sec.
by the person who made the recording or by some 4(a), Rules 130, ROC, as Amended)
other person competent to testify on its accuracy.
(Sec. 1, Rule 11, A.M. No.01-07-01-SC) Here, the mobile phone is a device which is similar
to a computer. A photograph is considered as a
Ephemeral Electronic Communication document under the Rules on Evidence. (Sec. 2, Rule
Telephone conversations, text messages, chatroom Hence, the printout of the photograph is an original
sessions, streaming audio, streaming video, and and thus admissible in evidence.
other electronic forms of communication the
evidence of which is not recorded or retained. (Sec. Q: Moises Oracion, Jr. and Emily L. Oracion
1(k), Rule 2, A.M. No.01-07-01-SC) applied for and were granted by petitioner
credit card accommodations with the issuance
Under Section 2, Rule 11 of the Rules on Electronic of a Bankard PESO Mastercard Platinum.
Evidence, ephemeral electronic communications Thereafter, respondents, on various dates, used

Evidence
the credit card in purchasing different products annexes attached to the complaint, but with a mere
but failed to pay. In its complaint against the addition of stamp marks bearing the same
respondents, petitioner attached "duplicate inscription as the first stamp marks" that were
original" copies of the Statements of Account placed in the annexes to the complaint. Because
from 17 April 2011 to 15 December 2011 and petitioner has not raised the electronic document
the Credit History Inquiry. Despite the receipt of argument before the RTC, it may no longer be raised
the SOAs, respondents failed and refused to nor ruled upon on appeal. Also, estoppel bars a
comply. Consequently, petitioner sent a written party from raising issues, which have not been
demand letter to respondents but despite raised in the proceedings before the lower courts,
receipt, respondents refused to pay. Hence, for the first time on appeal. Clearly, petitioner, by its
petitioner filed a Complaint for Sum of Money acts and representations, is now estopped to claim
before the MeTC. The MeTC dismissed the that the annexes to its complaint are not duplicate
complaint and noted that the signatures in the original copies but electronic documents. It is too
documents attached in the complaint are mere late in the day for petitioner to switch theories.
photocopies and stamp marks. The MeTC
rationalized that under the Best Evidence Rule, Even assuming that the Court brushes aside the
the court shall not receive any evidence that is above-noted procedural obstacle, the Court cannot
merely substitutionary, such as stamp mark. just concede that the pieces of documentary
The RTC held that it is up to petitioner to prove evidence in question are indeed electronic
that the attachments in support of the complaint documents. For the Court to consider an electronic
are originals and not merely substitutionary in document as evidence, it must pass the test of
nature. In its petition for review before the admissibility. According to Sec. 2, Rule 3 of the Rules
Supreme Court, petitioner raises for the first on Electronic Evidence, "an electronic document is
time on appeal the Rules on Electronic Evidence admissible in evidence if it complies with the rules
arguing that since electronic documents, when on admissibility prescribed by the Rules of Court
directly printed out are considered original and related laws and is authenticated in the manner
reproductions, they are admissible under the prescribed by these Rules." Rule 5 of the Rules on
Best Evidence Rule. Electronic Evidence lays down the authentication
process of electronic documents. Sec. 1 of Rule 5
Did the lower courts err in dismissing the imposes upon the party seeking to introduce an
complaint? electronic document in any legal proceeding the
burden of proving its authenticity in the manner
A: NO. Procedurally, petitioner cannot adopt a new provided therein. Sec. 2 of Rule 5 sets forth the
theory in its appeal before the Court and abandon required proof of authentication.
its theory in its appeal before the RTC. Pursuant to
Sec. 15, Rule 44 of the Rules, petitioner may include Petitioner could not have complied with the Rules
in his assignment of errors any question of law or on Electronic Evidence because it failed to
fact that has been raised in the court below and is authenticate the supposed electronic documents
within the issues framed by the parties. Before the through the required affidavit of evidence. As
RTC, petitioner did not raise the Rules on Electronic earlier pointed out, what petitioner had in mind at
Evidence to justify that the so-called "duplicate the inception was to have the annexes admitted as
original copies" of the SOAs and Credit History duplicate originals as the term is understood in
Inquiry are electronic documents. Rather, it insisted relation to paper-based documents. Thus, the
that they were duplicate original copies, being annexes or attachments to the complaint of
computer-generated reports, and not mere petitioner are inadmissible as electronic
photocopies or substitutionary evidence, as found documents, and they cannot be given any probative
by the MeTC. value.
As observed by the RTC, the attachments to the said In the absence of such authentication through the
Manifestation "are merely photocopies of the affidavit of the custodian or other qualified person,

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Remedial Law
the said annexes or attachments cannot be admitted

and appreciated as business records and excepted
from the rule on hearsay evidence. Consequently,
the annexes to the complaint fall within the Rule on
Hearsay Evidence and are to be excluded pursuant
to Section 36, Rule 130 of the Rules of Court. (RCBC
Bankard Services Corp. v. G.R. No. 223274. 19 June
2019, J. Caguioa)

Appeals; General Principles
b. Instances when the CA may act as a trial

court.
PART 2
2. No new parties;
APPELLATE PRACTICE, PROCEDURE IN THE
3. No change of theory (Naval v. CA, G.R. No.
COURT OF APPEALS, COURT OF TAX APPEALS,
167412, 22 Feb. 2006);
AND SUPREME COURT
4. No new matters (Ondap v. Aubga, G.R. No. L-
24392, 28 Feb. 1979);
5. The amendment of pleadings allowed to
conform to the evidence submitted before the
trial court (Dayao v. Shel, G.R. No. L-32475, 30
I. APPEALS; GENERAL PRINCIPLES
Apr. 1980);
6. The liability of solidarity defendant who did not
appeal is not affected by appeal of solidarity
debtor (Mun. of Orion v. Concha, G.R. No. 26671,
A. NATURE OF THE RIGHT TO APPEAL 17 Sept. 1927);
7. Appeal by guarantor does not inure to the
principal (Luzon Metal v. Manila Underwriter,
Appeal is the elevation by an aggrieved party of any G.R. No. L-27863, 29 Aug. 1969);
decision, order or award of a lower body to a higher 8. In ejectment cases, the RTC cannot award to the
body, by means of a document which includes the appellant on his counterclaim more than the
assignment of errors, memorandum of arguments in amount of damages beyond the jurisdiction of
support thereof, and the reliefs prayed for. the MTC (Agustin v. Bataclan, 135 SCRA 342);
(Technogas Philippines Manufacturing Corporation 9. The appellate court cannot dismiss the
v. Clave, 08635-SP, 31 May 1979) appealed case for failure to prosecute because
the case must be decided on the basis of the
Constitutional Right to Appeal record. (Rule 21, Interim Rules)
It is not a constitutional or a natural right. (Canton v. NOTE: Appeal is a speedy remedy, as an adverse
City of Cebu, G.R. No. 152898 12 Feb. 2007) party can file its appeal from a final decision or
order immediately after receiving it. A party, who is
The right to appeal is not part of due process but a alleging that an appeal will not promptly relieve it
mere statutory privilege that has to be exercised of the injurious effects of the judgment, should
only in the manner and in accordance with the establish facts to show how the appeal is not speedy
provisions of law. (Stolt-Nielsen v. NLRC, G.R. No. or adequate. (V.C Ponce Company Inc. v. Municipality
147623, 13 Dec. 2005) of Paranaque, G.R. No. 178431, 12 Nov. 2012)
Basic Guidelines Regarding Appeal

B. JUDGEMENT AND FINAL ORDERS
1. GR: No trial de novo (starting from the SUBJECT TO APPEAL
beginning) shall be made. The appellate courts
must decide the case on the basis of the record.
An appeal may be taken only from judgments or
XPNs:
final orders that completely dispose of the case, or
a. When the proceedings were not duly of a particular matter therein when declared by the
recorded as when there was absence of a Rules of Court to be appealable. (Sec.1, Rule 41, ROC,
qualified stenographer (Sec. 22(d), BP 129;
as amended)
Rule 21(d), Interim Rule);

e

Remedial Law
Judgment December 2007, per A.M. No. 07-7-12-SC. (Riano,

2019)
The conclusion of the law upon the matters
contained in the record, or the application of the law Remedy against Judgment and Orders which are
to the pleadings and to the facts, as found by the not Appealable
court or admitted by the parties or deemed to exist
upon default in a course of judicial proceedings. In those instances where the judgment or final
(Gotamco v. Chan Seng, G.R. No. 22737, 28 Nov. 1924) order is not appealable, the aggrieved party may file
the appropriate special civil action under Rule 65.
Final Order (Sec. 1, Rule 41, ROC, as amended)
One that puts an end to the particular matter The most potent remedy against those judgments
resolved, leaving thereafter no substantial and orders from which appeal cannot be taken is to
proceedings to be had in connection therewith, allege and prove that the same were issued without
except its execution. (Bairan v. Tan Siu Lay, G.R. No. jurisdiction, with grave abuse of discretion or in
L-19460, 28 Dec. 1966) excess of jurisdiction, all amounting to lack of
jurisdiction.
Interlocutory Order
It is an order which does not dispose the case but D. DOCTRINE OF FINALITY/IMMUABILITY OF
leave something to be done by the trial court on the JUDGEMENT; EXCEPTIONS
merits of the case.
GR: The doctrine of finality of judgment or

C. MATTERS NOT APPEALABLE; immutability of judgment provides that a decision
AVAILABLE REMEDIES 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
1. Order denying a petition for relief or any similar erroneous conclusions of fact and law, and whether
motion seeking relief from judgment; it be made by the court that rendered it or by the
2. Interlocutory order; Highest Court of the land. Any act which violates this
3. Order disallowing or dismissing an appeal; principle must immediately be struck down.
4. Order denying a motion to set aside a judgment (Spouses Valarao v. MSC and Company, G.R. No.
by consent, confession or compromise on the 185331, 08 June 2016)
ground of fraud, mistake or duress, or any other
ground vitiating consent; XPNs: This doctrine admits certain exceptions,
5. Order of execution; these are:
6. Judgment or final order for or against one or
more of several parties or in separate claims, 1. Correction of clerical errors;
counterclaims, cross-claims and third-party 2. The so-called nunc protunc entries which cause
complaints, while the main case is pending, no prejudice to any party;
unless the court allows an appeal therefrom; 3. Void judgments; and
7. Order dismissing an action without prejudice 4. Whenever circumstances transpire after the
(Sec. 1, Rule 41, ROC, as amended); and finality of the decision rendering its execution
8. A judgment based on compromise. unjust and inequitable. (Gadrinab v. Salamanca,
G.R. No. 194560, 11 June 2014)
NOTE: An order denying a motion for new trial or a
motion for reconsideration is no longer appealable Q: In a Complaint for Compulsory Recognition
as it is no longer part of the enumeration as of 27 and Enforcement of Successional Rights" filed by

Appeals; General Principles
Antonia Aruego, the Regional Trial Court

declared Antonia as an illegitimate daughter of
the deceased Aruego Sr. hence entitled to a
share in the latter’s estate. Among others, the
RTC rendered a Decision on June 15, 1992,
declaring what constitutes the estate of
deceased and affirmed the status of Antonia
Aruego as an illegitimate daughter of the
deceased hence the latter is entitled to one-half
of the share of the deceased’s legitimate
children. A Writ of Execution was issued by the
RTC. Petitioners filed a Motion for Partial
Reconsideration but they did not raise therein
the supposed error of the court in declaring the
properties enumerated in the dispositive
portion of the Decision as comprising the estate
of Aruego. Antonia filed a Motion for Partition
alleging the RTC Decision became final and
executory in view of the denial of the notice of
appeal filed by petitioners and the dismissal of
their Petition for Prohibition and Certiorari by
the CA and the subsequent denial of their appeal
to the Supreme Court. Can the Court review and
modify the RTC Decision?
A: NO. There is no ground to justify the modification

of the RTC Decision. When a final judgment is
executory, it becomes immutable and unalterable.
The only recognized exceptions to the general rule
on immutability of final judgments are the
correction of clerical errors, the so called nunc pro
tunc entries which cause no prejudice to any party,
void judgments, and whenever circumstances
transpire after the finality of the decision rendering
its execution unjust and inequitable. These
exceptions, however, are not present. What
petitioners seek is an order from the court to allow
them to present evidence with regard to the
properties comprising the estate of Aruego and the
heirs who are to share in the inheritance. The Court
cannot issue a writ of certiorari so as to allow the
petitioners to present evidence as the same should
have been raised by them during trial. (Torres, et al.
v. Aruego, G.R. No. 201271, 20 Sept. 2017)

e

Post-Judgment Remedies Other Than Appeal
As to the Grounds
II. POST – JUDGEMENT REMEDIES Grounds for motion for
OTHER THAN APPEAL new trial:
a. Fraud, accident,
mistake or
A. PETITION FOR RELIEF FROM JUDGEMENT excusable
(RULE 38) negligence; (F-A-M-
E) and
b. Newly discovered
evidence. (Sec. 1) Grounds: (F-A-M-E)
Relief from Judgment or Final Orders and
Resolutions
Grounds for motion for 1. Fraud;
reconsideration: 2. Accident;
It is a legal remedy whereby a party seeks to set
3. Mistake; or
aside a judgment rendered against him by a court
1. The damages 4. Excusable
whenever he was unjustly deprived of a hearing or
awarded are negligence
was prevented from taking an appeal because of
excessive;
fraud, accident, mistake or excusable neglect. (Sec.
2. That the evidence is
1, Rule 38, ROC, as amended; Quelnan v. VHF
insufficient to justify
Philippines, G.R. No. 138500, 16 Sept. 2005)
the decision or final
order, or
It is an equitable remedy that is allowed only in
exceptional cases when there is no other available
That the decision or final
or adequate remedy. (Trust International Paper
order is contrary to law.
Corp. v. Pelaez, G.R. No. 164871, 22 Aug. 2006)
(Sec. 1)
Motion for New Trial/Reconsideration vs. As to the Period of Filing

Petition for Relief from judgment (1990 BAR)
Filed within 60 days
from knowledge of
Filed within the time to
MOTION FOR NEW PETITION FOR the judgment and
appeal.
TRIAL / RELIEF FROM within 6 months from
RECONSIDERATION JUDGMENT entry of judgment.
(Rule 37) (Rule 38)
As to the Nature of the Remedy
As to Availability
Legal Remedy Equitable Remedy
As to the Available Remedy after its denial
Available before Available after
judgment becomes final judgment has become The order of denial is
The order of denial is
and executory. final and executory. not appealable; the
not appealable. The
remedy is
remedy is to appeal
appropriate special
As to Applicability from the judgment or
civil action under
final order on the merits.
Rule 65.
Applies to judgments, As to the verification requirement
Applies to judgments or
final orders and other
final orders only. Motion need not be Petition must be
proceedings.
verified. verified.

Remedial Law
NOTE: A party who has filed a timely motion for case upon its merits, he will pay the adverse party
new trial cannot file a petition for relief after the all damages and costs that may be awarded to him
former is denied. The two remedies are exclusive of by reason of issuance of such injunction or the other
one another. (Sec. 9, Rule 38; (Francisco v. Puno, G.R. proceedings following the petition. (Ibid.)
No. L-55694, 23 Oct. 1981)
Lien acquired over the property is NOT
Who may avail discharged by a Subsequent Issuance of a Writ of
Preliminary Injunction
A petition for relief from judgment together with a
MNT and MR are remedies available only to parties Where a writ of execution was already issued and
in the proceedings where the assailed judgment is levy was made before the petition for relief was
rendered. A person who was never a party to the filed, the lien that may have been acquired over the
case, or even summoned to appear therein, cannot property is not discharged by the subsequent
avail of a petition for relief from judgment. (Alaban, issuance of a writ of preliminary injunction.
et. al. v. CA, G.R. No. 156201, 23 Sept. 2005) Therefore, if the petition is denied, the court has the
power to reinstate the writ of execution. (Ayson v.
Proceedings After an Answer is Filed Ayson, G.R. No. L-10687, 24 May 1957)
1. After the filing of the answer or the expiration Execution of the judgment may proceed even if
of the period therefor, the court shall hear the the Order denying the Petition for Relief is
petition and if after such hearing, it finds that pending appeal
the allegations thereof are not true, the petition
shall be dismissed. Unless a writ of preliminary injunction has been
issued, execution of the judgment shall proceed
2. If the allegations are true, the court shall set even if the order denying the petition for relief is
aside the judgment, final order or proceeding pending appeal. Said writ may be sought either in
complained of upon such terms as may be just. the trial or appellate courts. (Service Specialists, Inc.
Thereafter, the case shall stand as if such v. Sheriff of Manila, et. al., G.R. No. 74586, 17 Oct.
judgment, final order or proceedings had never 1986)
been rendered, issued or taken. The court shall
then proceed to hear and determine the case as Order granting Petition for Relief is
if a timely motion for new trial or Interlocutory and Non-appealable
reconsideration had been granted by it. (Sec. 6,
Rule 38, ROC, as amended) An order granting petition for relief is interlocutory
and non-appealable. (Regalado, 2012)
NOTE: Failure to file an answer to the petition for
relief does not constitute default, even without such Grounds for Availing of the Remedy
answer, the court will still have to hear the petition
and determine its merits. (Regalado, 2010) 1. A judgment or final order is entered, or any
other proceeding is thereafter taken against a
Preliminary Injunction available pending the party in any court through fraud, accident,
Resolution of the Petition for Relief mistake, or excusable negligence (Sec. 1, Rule
38, ROC, as amended); or
The court may grant such preliminary injunction as 2. The petitioner has been prevented from taking
may be necessary for the preservation of the rights an appeal by fraud, accident, mistake, or
of the parties upon the filing of a bond in favor of the excusable negligence. (Sec. 2, Rule 38, ROC, as
adverse party. (Sec. 5, Rule 38, ROC, as amended) amended)
NOTE: The bond is conditioned that if the petition is

dismissed or the petitioner fails on the trial of the

e

Fraud Nevertheless, the Supreme Court has relaxed this

rule on several occasions such as:
Fraud as a ground for a petition for relief from
judgment pertains to extrinsic or collateral fraud. 1. where the reckless or gross negligence of
(City of Dagupan v. Maramba, G.R. No. 174411, 02 counsel deprives the client of due process of
July 2014) law;
2. when the rule’s application will result in
NOTE: Where fraud is the ground, the fraud must be outright deprivation of the client’s liberty or
extrinsic or collateral. The extrinsic or collateral property; or
fraud that invalidates a final judgment must be such 3. where the interests of justice so require."
that it prevented the unsuccessful party from fully Certainly, excusable negligence must be proven.
and fairly presenting his case or defense and the (Ibid.)
losing party from having an adversarial trial of the
issue. There is extrinsic fraud when a party is NOTE:
prevented from fully presenting his case to the court 1. If the petition is filed because of the first
as when the lawyer connives to defeat or corruptly ground, the petition shall be filed in such court
sells out his client’s interest. Extrinsic fraud can be and in the same case (not in another or higher
committed by a counsel against his client when the court). The petition shall pray that the
latter is prevented from presenting his case to the judgment, order or proceeding be set aside.
court. (Ibid.) (Sec. 1, Rule 38, ROC, as amended)
Mistake 2. If the petition is filed under the second ground,

the petition shall likewise be filed in such court
Mistake as used in Rule 38 means mistake of fact and in the same case (not in another or higher
and not mistake of law. A wrong choice in legal court) but the prayer this time is that the appeal
strategy or mode of procedure will not be be given due course. (Sec. 2, Rule 38, ROC, as
considered a mistake for purposes of granting a amended)
petition for relief from judgment. Mistake as a
ground also "does not apply and was never intended When to file Petition
to apply to a judicial error which the court might
have committed in the trial since such error may be 1. Within 60 days after the petitioner acquired
corrected by means of an appeal." knowledge of the order, judgment or
proceedings and not from the date he actually
Mistake can be of such nature as to cause substantial read the same. (Perez v. Araneta, G.R. No. L-
injustice to one of the parties. It may be so palpable 11788, 16 May 1958)
that it borders on extrinsic fraud. (Ibid.) 2. Not more than 6 months from entry of such
judgment, order or other proceeding. (Sec. 3,
Excusable negligence Rule 38, ROC, as amended)
Excusable negligence as a ground for a petition for NOTE: These two periods must concur and are also
relief requires that the negligence be so gross "that not extendible and never interrupted. (Quijano v.
ordinary diligence and prudence could not have Tameta, G.R. No. L-16473, 20 Apr. 1961) These
guarded against it." This excusable negligence must periods cannot be subject to a condition or a
also be imputable to the party-litigant and not to his contingency as they are devised to meet a condition
or her counsel whose negligence binds his or her or a contingency. (Vda. De Salvatierra v. Garlitos, 103
client. The binding effect of counsel’s negligence Phil. 157)
ensures against the resulting uncertainty and
tentativeness of proceedings if clients were allowed Q: May a defendant who has been declared in
to merely disown their counsels’ conduct. (Ibid.) default right away avail of a petition for relief

Remedial Law
from the judgment subsequently rendered in NOTE: The order shall be served in such manner as
the case? (2007 BAR) the court may direct, together with copies of the
petition and the accompanying affidavits. (Ibid.)
A: NO. The remedy of petition for relief from
judgment is available only when the judgment or
order in question is already final and executory, i.e., B. ANNULEMENTS OF JUDGEMENT BY THE
no longer appealable. It is an equitable remedy COURT OF APPEALS
allowed only in exceptional cases from final (RULE 47)
judgments or orders where no other remedy is
available. (Palmares, et al. v. Jimenez, et al., G.R. No.
L-4513, 31 Jan. 1952) It will not be entertained when
Annulment of Judgment
the proper remedy is appeal or certiorari. (Fajardo
v. Bayona, et al., G.R. No. L-8314, 23 Mar. 1956)
It is a remedy in law independent of the case where
the judgment sought to be annulled was rendered.
Form and Contents of Petition for Relief
Like a petition for relief, an action for annulment of

1. The petition for relief must be verified;
a judgment is a recourse equitable in character,
2. It must be supported by affidavit showing
allowed only in exceptional cases where there is no
FAME relied upon; and
available adequate remedy. (Ramos v. Combong, G.R.
3. The affidavit of merit accompanying the
No. 144273, 20 Oct. 2005)
petition must also show facts constituting the
petitioner’s good or substantial cause of action
NOTE: A co-equal court cannot annul the final
or defense. (Sec. 3, Rule 38, ROC, as amended)
judgment of a similar court. CA has exclusive
jurisdiction over actions for annulment of
Affidavit of Merit
judgments of RTC. An action to annul a judgment or
final order of MTC shall be filed in the RTC having
It recites the nature and character of FAME on
jurisdiction in the former and it shall be treated as
which the motion is based. It serves as the
an ordinary civil action. (Secs. 1 and 10, Rule 47, ROC,
jurisdictional basis for the court to entertain a
as amended)
petition for relief. However, it is not a fatal defect to
warrant denial of the petition so long as the facts
Purpose
required to be set out also appear in the verified
petition.
To have the final and executory judgment set aside
so that there will be renewal of litigation.
NOTE: The absence of an affidavit of merit is a fatal
defect and warrants denial of the petition
Who may file
(Fernandez v. Tan Tiong Tick, G.R. No. L-15877, 28
Apr. 1961), unless the facts required to be set out in
An action for annulment can be filed by one who was
the affidavit of merits also appear in the verified
not a party to the action in which the assailed
petition. (Fabar, Inc. v. Rodelas, G.R. No. L-46394, 26
judgment was rendered. It is a remedy in law
Oct. 1977)
independent of the case where the judgment sought
to be annulled is promulgated. (Villanueva v. Nite,
Issuance by the Court of the Order to Answer
G.R. No. 148211, 25 July 2006)
When the petition is sufficient in form and

A person need not be a party to the judgment sought
substance to justify relief, the court in which it is
to be annulled. What is essential is that he can prove
filed, shall issue an order requiring the adverse
his allegation that the judgment was obtained by the
parties to answer the same within 15 days from the
use of fraud and collusion and he would be
receipt thereof. (Sec. 4, Rule 38, ROC, as amended)

e

adversely affected thereby. (Islamic Da’wah Council Contents of the Petition

v. CA, G.R. No. 80892, 29 Sept. 1989)
1. Verified petition alleging:
When available
a. The facts and the law relied upon for
The remedy of annulment of judgment may be annulment; and
availed of when the ordinary remedies of new trial, b. As well as those supporting the petitioner’s
appeal, petition for relief or other appropriate good and substantial cause of action or
remedies are no longer available through no fault of defense, as the case may be;
the petitioner. (Sec. 1, Rule 47, ROC, as amended)
2. A certified true copy of the judgment or final
NOTE: If the petitioner fails to avail of those other order or resolution intended for the court and
remedies without sufficient justification, he cannot indicated as such by the petitioner;
resort to the action for annulment provided in the 3. Affidavits of witnesses or documents
Rules, otherwise he would benefit from his own supporting the cause of action or defense; and
inaction or negligence. (Regalado, 2012) 4. Sworn certification against forum shopping
Where filed
NOTE: The procedure in ordinary civil cases shall be
JUDGMENTS OF RTC JUDGMENTS OF MTC observed. Should a trial be necessary, the reception
As to the Place of Filing of the evidence may be referred to a member of the
Filed with the CA Filed with the RTC court or a judge of the RTC. (Sec. 6, Rule 47, ROC, as
As to Basis amended)
Basis – It has exclusive Basis – RTC as a court
original jurisdiction of general jurisdiction Grounds for the Annulment of Judgment of the
over said action under under Sec. 19 (6), BP RTC (2008 BAR)
Rule 47. 129.
As to the Extent of Discretion of the Court 1. Lack of jurisdiction over the subject matter
CA may dismiss the RTC has no discretion and over the person – May be barred by
case outright; it has to dismiss the case estoppels by laches, which is that failure to do
the discretion on outright. It is required something which should be done or to claim or
whether or not to to consider it as an enforce a right at a proper time or a neglect to
entertain the petition. ordinary civil action. do something which one should do or to seek or
enforce a right at a proper time.
Annulment of Judgments of Quasi-judicial
bodies 2. Extrinsic Fraud
Annulment of judgment does not apply to NOTE: Fraud is regarded as extrinsic where it
judgments rendered by quasi-judicial bodies. It prevents a party from having a trial or from
does not apply also to decisions or orders of the presenting his entire case to the court, or where
Ombudsman in administrative cases whose it operates upon matters pertaining not to the
decisions or orders may be appealed to the CA judgment itself but to the manner in which it is
under Rule 43. (Macalalag v. Ombudsman, G.R. No. procured. (Alaban, et al., v. CA, G.R. No. 156021,
147995, 05 Mar. 2004) 23 Sept. 2005)
The silence of BP 129 on the jurisdiction of the CA to Extrinsic fraud, as a ground for the annulment
annul judgments or final orders and resolutions of of a judgment, must emanate from an act of the
quasi-judicial bodies like the DARAB indicates its adverse party. It must be of such nature as to
lack of such authority. have deprived the petitioner of its day in court.
The fraud is not extrinsic if the act was

Remedial Law
committed by the petitioner's own counsel. jurisdiction as required under Sec. 2, Rule 47 of
(Pinausukan Seafood House v. Far East Bank & the Rules of Court. Is the dismissal valid?
Trust Company, G.R. No. 159926, 20 Jan. 2014)
A: YES. Annulment of judgment is an exceptional
Extrinsic Fraud vs. Intrinsic Fraud remedy in equity that may be availed of when
ordinary remedies are unavailable without fault on
EXTRINSIC OR INTRINSIC the part of the petitioner. It must be based only on
COLLATERAL FRAUD FRAUD the grounds of extrinsic fraud, and of lack of
As to the party who commits the act and its jurisdiction. At the same time, it is required that it
effects must be commenced by a verified petition that
Fraudulent act It refers to the acts of a specifically alleges the facts and the law relied upon
committed by the party at the trial that for annulment. (Sps. Teaño v. Municipality of
prevailing party prevents a fair and just Navotas, G.R. No. 205814, 15 Feb. 2016)
outside of the trial of determination of the
the case, which case, and that could Petition to File Action
prevented the defeated have been litigated and
party from having a determined at the trial 1. If based on extrinsic fraud, the action must be
trial or from such as falsification, filed within 4 years from its discovery.
presenting his case to false testimony. 2. If based on lack of jurisdiction, the action must
the court, or is used to be brought before the action is barred by laches
procure the judgment It does not constitute a or estoppels. (Sec. 3, Rule 47, ROC, as amended).
without fair ground for new trial.
submission of the (Tarca v. Carretero, 99 Estoppel vs. Laches
controversy. (Magno v. Phil. 419)
CA, et al., G.R. No. L- ESTOPPEL LACHES
28486, 10 Sept. 1981) As to the Nature
Failure to do Such inexcusable delay
3. Denial of due process. (Alaban, et al., v. CA, G.R. something that should in the assertion of
No. 156021, 23 Sept. 2005) be done, or failure to rights or a failure to
claim or enforce a right prosecute a claim,
While under Section 2, Rule 47 of the Rules of Court at a proper time, or a within a reasonable
a Petition for Annulment of Judgment may be based neglect to do and proper period,
only on the grounds of extrinsic fraud and lack of something which one which warrants the
jurisdiction, jurisprudence recognizes lack of due should do or enforce a presumption that the
process as additional ground to annul a judgment. right at a proper time. party has waived his
(Intestate Estate of the Late Nimfa Sian v. PNB, G.R. right. (Regalado, 2010)
No. 168882, 31 Jan. 2007)
Effects of Judgment of Annulment
Q: Sps. Teano filed a petition with the Court of
Appeals denominated as ‘"Annulment of 1. If based on lack of jurisdiction - It shall have
Summary Judgment with Prayer for Preliminary the effect of setting aside the questioned
Mandatory Injunction and/or Temporary judgment or final order and rendering the same
Restraining Order”, four years after the release null and void but the judgment of annulment is
of the summary judgment and the motion to without prejudice to the refilling of the original
clarify of judgment from the RTC. The CA action in the proper court. (Sec. 7, Rule 47, ROC,
dismissed the petition on the grounds of, among as amended)
others, that there is no allegation of whether the
grounds for the petition for annulment of NOTE: The prescriptive period for the refiling
judgment is based on extrinsic fraud or lack of of the action shall be deemed suspended from

e

the filing of such original action until the finality Reliefs available in a Judgment of Annulment
of the judgment of annulment. But shall not
however, be suspended where the extrinsic The judgment of annulment may include the award
fraud is attributable to the plaintiff in the of damages and attorney’s fees. The court may also
original action. (Sec. 8, Rule 47, ROC, as issue orders of restitution or other reliefs as justice
amended) and equity may warrant under the circumstances.
2. If based on extrinsic fraud - The court, upon
motion, may order the trial court to try the case
as if a motion for new trial was granted. (Sec. 9, C. COLLATERAL ATTACK ON JUDGEMENT;
Rule 47, ROC, as amended) WHEN PROPER
Remedy in case of Annulment on the ground of

Lack of Jurisdiction
It is made in another action to obtain a different
relief, an attack on the judgment is made as an
The aggrieved party may refile the action in the
incident in said action. This is proper only when the
proper court. Where however, the reason for such
judgment, on its face is null and void, as where it is
annulment was because of lack of jurisdiction over
patent that the court which rendered such judgment
the defendant, the action may be refiled in the same
has no jurisdiction. (Co v. CA, G.R. No. 93687, 06 May
original court provided it has jurisdiction over the
1991)
subject-matter and is the court of proper venue or
no issue on venue is raised. (Regalado, 2010)
Distinction between a Direct Attack and a
Collateral Attack
Effect of Annulment on the ground of Extrinsic
Fraud
DIRECT ATTACK COLLATERAL ATTACK
As to nature and object
Where the annulment was based on extrinsic fraud
Made through an
committed by the offending party, the court may, on
action or proceeding
motion order the trial court to try the case as if a
the main object of
timely motion for new trial had been granted
which is to annul, set
therein. (Sec. 7, Rule 47, ROC, as amended)
aside or enjoin the Made when, in another
enforcement of such action to obtain a
Prescriptive Period for Refiling of the Original
judgment if not yet different relief, an
Action deemed Suspended
carried into effect; or if attack on the judgment
the property has been is made as an incident
For purposes of computing the prescriptive period
disposed of, the in said action. (Ibid.)
within which the same original action may be refiled
aggrieved party may
as authorized by the Rules, the prescriptive period
sue for recovery. (Co v.
provided by law for such type of action must first be
CA, G.R. No. 93687, 06
considered. From that period shall be deducted the
May 1991)
length of time which transpired from the date when
the action was originally filed in the trial court up to
the finality of the judgment which eventually Q: Two years after receiving a copy of a decision
rendered by a Regional Trial Court, a party
annulled the questioned judgment of that trial court.
engaged a counsel and asked them to work on
The resulting balance of the prescriptive period may
then be availed of the by aggrieved party for the reopening the case. The party explained that it
took two years to find the best legal counsel
refilling of the same action. (Regalado, 2010)
available, and that counsel had to await two
years to pass the #BestBarEvecer 2020_21.

Remedial Law
After perusing the judgement and case records, comply with the requirements of the Rules may be
the counsel filed before the Court of Appeals a dismissed. (Ibid)
petition for annulment of judgement under Rule
47 of the Rules of Civil Procedure, asserting that Not a Remedy for Lost Appeal
the trial judge improperly assessed the evidence
and misapplied a doctrine long adopted by the In one case, the Court ruled that certiorari cannot be
Supreme Court. allowed when a party to a case failed to appeal a
judgement despite the availability of that remedy.
Will the petition for annulment of judgement (Indoyon v. Court of Appeals, G.R. No. 193706, 12 Mar.
prosper? Explain briefly. (BAR 20-21) 2013)
A: NO. The petition for annulment off judgment will Certiorari is not a substitute for a lost appeal. This is
not prosper. due to the nature of a Rule 65 petition for certiorari
which lies only where there is “no appeal,” and “no
Under the Rules of Civil Procedure, an action for plain, speedy and adequate remedy in the ordinary
annulment of judgment may be based only on the course of law.” The remedies of appeal and
grounds of extrinsic fraud and lack of jurisdiction. certiorari are mutually exclusive and not alternative
(Sec. 2, Rule 47, ROC, as amended) or successive. (Nipon Paint Employees Union-Olalia
v. Court of Appeals, G.R. No. 159010, 19 Nov. 2004)
Here, the grounds raised by the counsel in his
petition are the improper assessment of the Dismissal With Prejudice
evidence and the misapplication of an abandoned
doctrine, which have nothing to do with extrinsic An order dismissing a judgment with prejudice
fraud or lack of jurisdiction but are errors of disallows and bars the refiling of the complaint.
judgment which are proper subjects of an appeal. Where the law permits, a dismissal with prejudice is
Hence, the petition for annulment of judgment will subject to the right of appeal. (Strongworld
not prosper. Construction Corporation v. Hon. Perello, et al., G.R.
No. 148026, 27 July 2006)
D. RULE 65 AS A REMEDY FROM JUDGEMENT Dismissal Without Prejudice
Does not disallow the refiling of the same action or

claim. An order dismissing an action without
A petition for certiorari under Rule 65 is proper to
prejudice is not subject to appeal but is reviewable
correct errors of jurisdiction committed by the
by a Rule 65 certiorari petition. (Pillars Property
lower court or grave abuse of discretion which is
Corporation, v. Century Communities Corporation,
tantamount to lack of jurisdiction. This remedy can
G.R. No. 201021, 04 Mar. 2019)
be availed of when there is no appeal or any plain,
speedy, and adequate remedy in the ordinary
course of law. (Cunanan v. Court of Appeals, G.R. No.
205573, 17 Aug. 2016)
The petitioner must allege in his or her petition and

establish facts to show that any other existing
remedy is not speedy or adequate. Where the
existence of a remedy by appeal or some other plain,
speedy and adequate remedy precludes the
granting of the writ, a petitioner must allege facts
showing that any existing remedy is impossible or
unavailing. A petition for certiorari which does not

e

Appeals in Civil Procedure
a. Affirm – In such case, it is a declaration of

III. APPEALS IN CIVIL PROCEDURE: MODES OF the merits of the dismissal;
APPEAL FROM JUDGEMENT OR FINAL ORDERS b. Affirm and the ground of dismissal is lack
OF VARIOUS COURTS/TRIBUNALS. of jurisdiction over the subject matter –
The action of the RTC is a mere affirmation
of the dismissal. The RTC shall try the case
on the merits as if the case was originally
filed with it, if it has jurisdiction; or
A. RULE 40 – APPEAL FROM MUNICIPAL TRIAL c. Reverse – it shall remand the case for
COURTS TO THE REGIONAL TRIAL COURTS. further proceedings.
2. If the case was tried on the merits by the lower

Procedure of Appeal from Decisions of the MTC court without jurisdiction over the subject
to the RTC (Rule 40) matter, the RTC shall not dismiss the case if it
has original jurisdiction, but shall decide the
case, and shall admit amended pleadings and
Appeal the decision of the MTC by filing
notice of appeal within 15 days, or 30 days additional evidence. (Sec. 8, Rule 40, ROC, as
where a record on appeal is required from amended)
receipt of the judgment or final order.
Duty of the Clerk of Court of RTC upon Receipt of
the Complete Record
Copies of the notice of appeal, and the
record on appeal where required, shall be The clerk of court of the RTC shall notify the parties
served on the adverse party. of such fact. (Sec. 7(a), Rule 40, ROC, as amended)
+
The MTC clerk shall transmit the original
Duties of the Parties to whom Notice was given
by the Clerk of Court
record or the record on appeal, together
with the transcripts and exhibits to the RTC 1. Within 15 days from such notice, it shall be the
within 15 days from perfection of appeal.
■ duty of the appellant to submit a memorandum
T which shall briefly discuss the errors imputed
Upon receipt of the complete record or the to the lower court, a copy of which shall be
record on appeal, the RTC clerk shall notify
the parties of such fact.
furnished by him to the adverse party;
+ NOTE: Failure of the appellant to file a

1. Within 15 days from notice of appeal – memorandum shall be a ground for dismissal of
appellant shall submit a memorandum to
the RTC. Failure of appellant to file a
the appeal
memorandum shall be a ground for
dismissal of the appeal. 2. Within 15 days from receipt of the appellant’s
memorandum, the appellee may file his
2. Within 15 days from receipt of appellant’s
memorandum – appellee may file his memorandum. (Sec. 7(a), Rule 40, ROC, as
memorandum. amended)
Dismissal of Case Without Trial or Without When case is Considered Submitted for Decision
Jurisdiction
Upon the filing of the memorandum of the appellee,
1. If the lower court dismissed the case without or the expiration of the period to do so, the case shall
trial on the merits, RTC may: be considered submitted for decision. The Regional
Trial Court shall decide the case on the basis of the
entire records of the proceedings had in the court of
734
._.....,1....,
f. '; UNIVERSITY OF SANTO TOMAS
-·'.,/· 2022 GOLDEN NOTES
Remedial Law
origin and such memoranda as are filed. (Sec. 7(c), 2. A particular matter therein when declared by
Rule 40, ROC, as amended) the Rules to be appealable. (Sec. 1, Rule 41, ROC,
as amended)
B. RULE 41 – APPEAL FROM THE REGIONAL XPNs: No appeal may be taken from:
TRIAL COURT
1. An order denying a petition for relief or any
similar motion seeking relief from judgment;
2. An interlocutory order;
Three Modes of Appeal from the Decisions of the
3. An order disallowing or dismissing an appeal;
RTC (2002, 2005, 2006, 2009 BAR)
4. An order denying a motion to set aside a
judgment by consent, confession or
1. Rule 41: Ordinary appeal or appeal by writ of
compromise on the ground of fraud, mistake or
error – This presupposes that the RTC
duress, or any other ground vitiating consent;
rendered the judgment or final order in the civil
action or special proceeding in the exercise of
5. An order of execution;
its original jurisdiction and appeal is taken to
the CA on questions of fact or mixed questions
6. A judgment or final order for or against one or
of fact and law. The appeal is taken by notice of
more of several parties or in separate claims,
appeal or by record on appeal.
counterclaims, cross-claims, and third-party
complaints, while the main case is pending,
NOTE: An appeal on pure questions of law
unless the court allows an appeal therefrom;
cannot be taken to the CA and such improper
and
appeal will be dismissed pursuant to Sec. 2, Rule
50. (Regalado, 2012)
7. An order dismissing an action without
prejudice. (2004 BAR)
2. Rule 42: Petition for review – The questioned
judgment or final order was rendered by RTC in
NOTE: In any of the foregoing circumstances, the
the exercise of its appellate jurisdiction over a
aggrieved party may file an appropriate special civil
judgment or final order in a civil action or
action as provided under Rule 65. (Ibid.)
special proceeding originally commenced in
and decided by a lower court. The appeal is
Title of the case when Appealed to the CA under
taken by a petition for review filed with CA on
Rule 41
questions of facts, of law or on mixed questions
of fact and law. (1998, 1990, 2009 BAR)
In all cases appealed to the CA under Rule 41, the
title of the case shall remain as it was in the court of
3. Rule 45: Petition for review on certiorari –
origin but the party appealing the case shall be
Taken to the SC only on questions of law from a
referred to as the appellant and the adverse party
judgment or final order rendered in a civil
appellee. (Sec. 1, Rule 44, ROC, as amended)
action or special proceeding by RTC in the
exercise of its original jurisdiction. The appeal
NOTE: It shall be the duty of the appellant to file
is taken by filing a petition for review on
with the court, within 45 days from receipt of the
certiorari with the SC. (Regalado, 2010)
notice of the clerk that all the evidence, oral and
documentary, are attached to the record, 7 copies of
Subject of an Appeal under Rule 41
his legibly typewritten, mimeographed or printed
brief, with proof of service of 2 copies thereof upon
GR: An appeal may be taken from:
the appellee. (Sec. 7, Rule 44, ROC, as amended)
1. A judgment or final order that completely

NOTE: Within 45 days from receipt of appellant’s
disposes of the case; or
brief, the appellee shall file with the court 7 copies

e

of his legibly typewritten, mimeographed or printed As to their Contents

brief, with proof of service of 2 copies thereof upon Shorter, briefer, and
the appellant. (Sec. 8, Rule 44, ROC, as amended) with only one issue
Contents specified by involved. There is no
Purpose of an Appellant’s/Appellee’s Brief Rules (Secs. 14-15, Rule subject index or
44, ROC, as amended) assignment of errors,
To present to the court in a concise form the points facts and applicable
and question in controversy, and by fair argument laws.
on the facts and law of the case, to assist the court in
arriving at a just and proper conclusion/decision.
(De Liano, et al., v. CA, G.R. No. 142316, 22 Nov. 2001) C. RULE 42 – PETITION FOR REVIEW FROM THE
REGIONAL TRIAL COURTS TO THE COURT OF
NOTE: Extensions of time for the filing of briefs will APPEALS
not be allowed except for good and sufficient cause
and only if the motion for extension is filed before
the expiration of the time sought to be extended.
Q: The RTC affirmed the appealed decision of the
MTC. You are the counsel of the defeated party
and he tells you to appeal the RTC's decision.
A litigant’s failure to furnish his opponent with a
copy of his appeal brief does not suffice to warrant
a. What mode of appeal will you adopt?
dismissal of that appeal. (Trinidad Go, et al., v.
b. Within what time and in what court should
Vicente Velez Chaves, G.R. No. 182341, 23 Apr. 2010)
you file your appeal? (1998 BAR)
Brief vs. Memorandum
A:
a. The mode of appeal is by petition for review
BRIEF MEMORANDUM
under Rule 42 of the Rules of Court.
As to Applicability
b. The period of appeal is within 15 days from
Certiorari, prohibition, notice of the decision subject of the appeal or of
mandamus, quo the denial of a motion for new trial or
Ordinary appeals reconsideration filed in due time to the CA.
warranto and habeas
corpus cases
Filing an Appeal under Rule 42
As to Period of Filing
1. A party aggrieved by the decision of RTC in the
exercise of its appellate jurisdiction, may file a
from receipt of notice
verified petition for review with the CA;
issued by the clerk of
court that all the Filed within 30 days
2. At the same time, paying to the clerk of said
evidence, oral and from receipt of the
court the corresponding docket and other
documentary, is already notice issued by the
lawful fees, depositing the amount of
attached to the record clerk of court that all the
Php500.00 for costs, and furnishing the RTC
with proof of service of evidence, oral and
and the adverse party with a copy of the
2 copies upon the documentary, are
petition;
appellant (or appellee); already attached to the
record. (Sec. 10, Rule 44,
3. The petition shall be filed and served within 15
The Appellant’s Reply ROC, as amended)
days from notice of the decision sought to be
Brief is filed within 20
reviewed or of the denial of petitioner’s MNT or
days from receipt of
MR filed in due time after judgment;
appellee’s brief.

Remedial Law
4. Upon proper motion and the payment of the full costs, proof of service of the petition, and the
amount of the docket and other lawful fees and contents of and the documents which should
the deposit for costs before the expiration of the accompany the petition shall be sufficient ground
reglementary period, the CA may grant an for the dismissal thereof. (Sec. 3, Rule 42, ROC, as
additional period of 15 days only within which amended)
to file the petition for review;
Petition for Review NOT a Matter of Right
5. No further extension shall be granted except for
the most compelling reason and in no case to It is not a matter of right but discretionary on the CA.
exceed 15 days. (Sec. 1, Rule 42, ROC, as It may only be given due course if it shows on its face
amended) that the lower court has committed an error of fact
and/or law that will warrant a reversal or
Contents of the Petition for Review modification of the decision or judgment sought to
be reviewed or dismiss the petition if it finds that it
The petition shall be filed in 7 legible copies, with is:
the original copy intended for the court being
indicated as such by the petitioner, and shall: 1. Patently without merit;
2. Prosecuted manifestly for delay; or
1. State the full names of the parties to the case, 3. The questions raised therein are too
without impleading the lower courts or judges unsubstantial to require consideration. (Sec. 4,
thereof either as petitioners or respondents; Rule 42, ROC, as amended)
2. Indicate the specific material dates showing Actions the CA may take in acting upon the
that it was filed on time; Petition
3. Set forth concisely a statement of the matters 1. The respondent may be required to file a
involved, the issues raised, the specification of comment on the petition, not a motion to
errors of fact or law, or both, allegedly dismiss, within 10 days from notice; or
committed by the Regional Trial Court, and the 2. The petition may be dismissed if the CA finds
reasons or arguments relied upon for the the same to be patently without merit,
allowance of the appeal; prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial
4. Must be accompanied by clearly legible to require consideration. (Sec. 4, Rule 42, ROC, as
duplicate originals or true copies of the amended)
judgments or final orders of both lower courts,
certified correct by the clerk of court of the Contents of Comment on the Petition
Regional Trial Court, the requisite number of
plain copies thereof and of the pleadings and 1. State whether or not he accepts the statement
other material portions of the record as would of matters involved in the petition;
support the allegations of the petition; and 2. Point out the insufficiencies or inaccuracies in
petitioner’s statement of facts and issues; and
5. There must be a certification against forum 3. State the reasons why the petition should be
shopping. (Sec. 2, Rule 42, ROC, as amended) denied or dismissed. (Sec. 5, Rule 42, ROC, as
amended)
Effect of Failure to comply with the
Requirements
The failure of the petitioner to comply with any of

the foregoing requirements regarding the payment
of the docket and other lawful fees, the deposit for

e

Doctrine of Residual Jurisdiction applicable to comply with orders, circulars, or directives of

Appeals under Rule 42 the court without justifiable cause; and
However, such residual jurisdiction or power must 9. The fact that the order or judgment appealed
be exercised before the CA gives due course to the from is not appealable. (Sec. 1, Rule 50, ROC, as
petition. (Sec. 8, Rule 42, ROC, as amended) amended)
Effect of an Appeal of the Judgment or Final NOTE: The grounds are discretionary upon the
Order under Rule 42 appellate court. The very wording of the rule uses
the word “may” instead of “shall.” This indicates that
Except in civil cases decided under the Rule on it is only directory and not mandatory. (Mercury
Summary Procedure, the appeal, as a rule, shall stay Drug Corporation v. De Leon, G.R. No. 165622, 17 Oct.
the judgment or final order; unless the CA, the law 2008)
or the rules shall provide otherwise.
When case Deemed Submitted for Decision
Grounds for Dismissal of an Appeal by the CA
If the petition is given due course, the CA may set the
1. Failure of the record on appeal to show on its case for oral argument or require the parties to
face that the appeal was taken within the period submit memoranda within a period of 15 days from
fixed by the Rules; notice. The case shall be deemed submitted for
decision upon the filing of the last pleading or
2. Failure to file the notice of appeal or the record memorandum required by these Rules or by the
on appeal within the period prescribed by the court itself. (Sec. 9, Rule 42, ROC, as amended)
Rules;
Except in civil cases decided under the Rule on
3. Failure of the appellant to pay the docket and Summary Procedure, the appeal shall stay the
other lawful fees as provided in Section 5 Rule judgment or final order unless the Court of Appeals,
40 and Sec. 4 of Rule 41; the law, or these Rules shall provide otherwise. (Sec.
8(b), Rule 42, ROC, as amended)
4. Unauthorized alterations, omissions or
additions in the approved record on appeal as Q: Can a case decided by the RTC in the exercise
provided in Sec. 4 of Rule 44; of its appellate jurisdiction be appealed by way
of a petition for review on certiorari under Rule
5. Failure of the appellant to serve and file the 45?
required number of copies of his brief or
memorandum within the time provided by the A: NO. Where a case is decided by the RTC in the
Rules; exercise of its appellate jurisdiction, regardless of
whether the appellant raises questions of fact, of
6. Absence of specific assignment of errors in the law or mixed questions of fact and law, the appeal
appellant’s brief, or of page references to the shall be brought to the CA by filing a petition for
record as required in Sec.13, paragraphs (a), review under Rule 42. (Quezon City v. ABS-CBN
(c), (d) and (f) of Rule 44; Broadcasting Corporation, G.R. No. 166408, 06 Oct.
2008)
7. Failure of the appellant to take the necessary
steps for the correction or completion of the Appeals from Quasi-judicial bodies NOT
record within the time limited by the court in its included under Rule 45
order;
Under the present Rule 45, appeals may be brought
8. Failure of the appellant to appear at the through a petition for review on certiorari but only
preliminary conference under Rule 48 or to from judgments and final orders of the court

Remedial Law
enumerated in Sec. 1 thereof. Appeals from NOTE: The list of quasi-judicial agencies
judgments and final orders of quasi-judicial enumerated under Rule 43 is NOT exclusive. The
agencies are now required to be brought to the CA following are quasi-judicial agencies the judgments
on a verified petition for review, under the and final orders of which are also covered by Rule
requirements and conditions in Rule 43 which was 43:
precisely formulated and adopted to provide for a
uniform rule of appellate procedure for quasi- a. Professional Regulation Commission
judicial agencies. (Fabian v. Desierto, G.R. No. (Cayao-Lasam v. Sps. Ramolete, G.R. No.
129742, 16 Sept. 1998) 159132, 18 Dec. 2008);
b. Bureau of Immigration (Tze Sun Wong v.
NOTE: The mode of appeal under Rule 45 shall be Wong, G.R. No. 180364, 03 Dec. 2014); and
applicable to both civil and criminal cases, except in c. Bangko Sentral ng Pilipinas (Monetary
criminal cases where the penalty imposed is death, Board v. Philippine Veterans Bank, G.R. No.
reclusion perpetua or life imprisonment. (Sec. 9, Rule 18957, 21 Jan. 2015)
Where to Appeal from Judgments and Final
Orders of Quasi- judicial Bodies
D. RULE 43 – APPEALS FROM THE COURT OF
TAX APPEALS, CIVIL SERVICE COMMISSION, Appeals from judgment and final orders of quasi-
AND QUASI -JUDICIAL AGENCIES. judicial bodies or agencies enumerated in Rule 43
are now required to be brought to the CA under the
requirements and conditions set forth in Rule 43.
(Carpio v. Sulu Resource Dev. Corp., G.R. No. 148267,
Agencies enumerated under Rule 43 (2006,
08 Aug. 2002)
2009 BAR) (C4LOSIN2G-VEB2-SPADE)
Issues Raised on Appeal

1. Civil Service Commission;
2. Central Board of Assessment Appeals;
The appeal under Rule 43 may raise issues involving
3. Securities and Exchange Commission;
questions of fact, of law or mixed questions of fact
I
4. Office of the President;

and law. (Sec. 3, Rule 43, ROC, as amended)
I
5. Land Registration Authority;

I
6. Social Security Commission;

NOTE: Rule 43 is not applicable where the petition
I
7. Civil Aeronautics Board;

alleges that the challenged resolution is patently
8. Bureau of Patents, Trademarks and Technology
illegal and was issued with grave abuse of discretion
Transfer;
and beyond respondent’s jurisdiction. The
9. National Electrification Administration;
appropriate remedy is Rule 65 on certiorari.
10. Energy Regulatory Board;
11. National Telecommunications Commission;
Filing an Appeal from a Decision of the CTA
12. Department of Agrarian Reform under RA
(2009 BAR)
6657;
13. Government Service Insurance System;
An appeal from a decision or resolution of the CTA
14. Employee Compensation Commission;
in Division on an MNT or MR shall be taken to the
15. Agricultural Inventions Board;
CTA En Banc by petition for review as provided in
I
16. Insurance Commission;

Rule 43 of the Rules of Court. (Sec. 4, Rule 8, A.M. No.
I
17. Philippine Atomic Energy Commission;

05-11-07-CTA)
18. Board of Investments;
19. Construction Industry Arbitration Commission;
NOTE: The petition for review of a decision or
and
resolution of the Court in Division must be preceded
20. Voluntary Arbitrators authorized by law. (Sec.
by the filing of a timely MR or new trial with the
Division before appealing to CTA En Banc in its

e

exercise of appellate jurisdiction. (Sec. 1, Rule 8, A.M.

No. 05-11-07-CTA) E. RULE 45 – APPEALS BY CERTIORARI TO THE
SUPREME COURT
Appeal to the SC by Petition for Review on
Certiorari (2006 BAR)
Review by SC on the findings of fact of the CA
A party adversely affected by a decision or ruling of
the CTA en banc may appeal therefrom by filing with
GR: CA’s findings of fact are final and conclusive and
the SC a verified petition for review on certiorari
cannot be reviewed on appeal to the SC. (Natividad
within 15 days from receipt of a copy of the decision
v. MTRCB, G.R. No. 161422, 13 Dec. 2007)
or resolution, as provided in Rule 45 of the Rules of
Court. If such party has filed a MR or for new trial,
XPNs:
the period herein fixed shall run from the party’s
1. The conclusion of the CA is grounded entirely
receipt of a copy of the resolution denying the
on speculations, surmises and conjectures;
motion for reconsideration or for new trial. (Sec. 1,
2. The inference made is manifestly mistaken,
Rule 16, A.M. No. 05-11-07-CTA)
absurd or impossible;
3. There is grave abuse of discretion;
Effect of Appeal
4. The judgment is based on misapprehension of
facts;
The MNT or MR filed before the Court shall be
5. The findings of facts are conflicting;
deemed abandoned if, during its pendency, the
6. The CA in making its findings went beyond the
movant shall appeal to the SC. (Sec. 1, Rule 8, A.M. No.
issues of the case and the same is contrary to
05-11-07-CTA)
the admissions of both appellant and appellee;
7. The findings are contrary to those of the trial
Q: Melissa filed with the BIR a complaint for
court;
refund of taxes paid, but it was not acted upon.
8. The findings of facts are conclusions without
So, she filed a similar complaint with the CTA
citation of specific evidence on which they are
and was raffled to one of its divisions. Melissa's
based;
complaint was dismissed. Thus, she filed with
9. The facts set forth in the petition as well as in
the CA a petition for certiorari under Rule 65.
the petitioner’s main and reply briefs are not
Does the CA have jurisdiction over Melissa's
disputed by the respondents;
petition? (2006 BAR)
10. The findings of fact of the CA are premised on
the supposed absence of evidence and
A: NO. A decision of a division of the CTA is
contradicted by the evidence on record; or
appealable within 15 days to the CTA en banc. On
11. Those filed under Writs of amparo, habeas data,
the other hand, a party adversely affected by a
or kalikasan.
decision or ruling of the CTA en banc may file with
the SC a verified petition for review on certiorari
Instances where the CA may act as a trial court
pursuant to Rule 45 of the Rules.
(2008 BAR)
NOTE: R.A. No. 9282 expanded the jurisdiction of

1. In annulment of judgment under Secs. 5 and 6,
the CTA and elevated the same to the level of a
Rule 47. Should the CA find prima facie merit in
collegiate court equivalent to the rank of the CA.
the petition, the same shall be given due course
Hence, the CA no longer has jurisdiction to review
and summons shall be served on the
the decisions of the CTA en banc.
respondent, after which trial will follow, where
the procedure in ordinary civil cases shall be
observed;

Remedial Law
2. When a motion for new trial is granted by the 3. When the court below has departed from the
CA, the procedure in the new trial shall be the accepted and usual course of judicial
same as that granted by a RTC (Sec. 4, Rule 53, proceedings or so far sanctioned such a
ROC, as amended); departure by a lower court, as to call for the
exercise of the power of supervision of the SC.
3. A petition for habeas corpus shall be set for (Sec. 6, Rule 45, ROC, as amended)
hearing (Sec. 12, Rule 102, ROC, as amended);
Instances when an Appeal by Certiorari under
4. In petition for writs of amparo and habeas data, Rule 45 may apply
a hearing can be conducted;
1. Appeal from a judgment or final order of the
5. Under Sec. 12, Rule 124 of the Rules of Criminal RTC in cases where only questions of law are
Procedure, the CA has the power to try cases raised or are involved and the case is one
and conduct hearings, receive evidence and decided by the said court in the exercise of its
perform any and all acts necessary to resolve original jurisdiction (Sec. 2(c), Rule 41, ROC, as
factual issues which fall within its original and amended);
appellate jurisdiction;
2. Appeal from the judgment, final order or
6. The CA can grant a new trial based on the resolutions of the CA where the petition shall
ground of newly-discovered evidence (Sec. 14, raise only questions of law (Sec. 1, Rule 45, ROC,
Rule 124, ROC, as amended); as amended);
7. The CA under Sec. 6, Rule 46, whenever 3. Appeal from the judgment, final order or
necessary to resolve factual issues, may conduct resolutions of the Sandiganbayan where the
hearing thereon or delegate the reception of the petition shall raise only questions of law (Sec. 1,
evidence of such issues to any of its members or Rule 45);
to an appropriate agency or office; and
4. Appeals from the decision or ruling of the CTA
8. Human Security Act. en banc (Sec. 11, R.A. No. 9282);
Appeal under Rule 45 NOT a Matter of Right 5. Appeals from a judgment or final order in a
petition for writ of amparo to the SC which may
Appeal under Rule 45 is not a matter of right, but of raise questions of fact, questions of law or of
sound judicial discretion with the exception of cases both fact and law (Sec. 19, AM No. 08-1-16-SC,
where the penalty of death, or reclusion perpetua Rule on the writ of amparo, 24 Oct. 2007);
where the appeal is a matter of right leaving the
reviewing court without any discretion. (People v. 6. Appeal from judgment or final order in a
Flores, G.R. No. 170565, 31 Jan. 2006) petition for the writ of habeas data. The appeal
may raise questions of fact or law or both (AM
The following reasons may be considered in No. 08-1-16-SC, Rule on the writ of Habeas data
allowing the petition: (Sec. 19) 02 Feb. 2008);
1. When the court below has decided a question of 7. Appeal from judgment or final order in a
substance not yet determined by the SC; petition for the writ of kalikasan where the
appeal may raise questions of fact or law or
2. When the court below decided a question of both. (AM No. 09-6-8-SC, Rules of Procedure for
substance in a way that is probably not in Environmental Cases, Part III, Rule 7)
accord with the law or with the applicable
decisions of the SC; or

e

Only Questions of Law under Rule 45 Petition for Review on Certiorari under Rule 45
vs. Certiorari under Rule 65
The SC is not a trier of facts, and is not to review or
calibrate the evidence on record. Moreover, the SPECIAL CIVIL
PETITION FOR REVIEW
findings of facts of the trial court, as affirmed on ACTION FOR
ON CERTIORARI
appeal by the CA, are conclusive on the SC. (Boston CERTIORARI
(Rule 45)
Bank of the Philippines v. Manalo, G.R. No. 158149, 09 (Rule 65)
Feb. 2006) As to Nature
A special civil action
Question of Law vs. Question of Fact that is an original action
A mode of appeal which
(Rule 65) directed
seeks to review final
QUESTION OF LAW QUESTION OF FACT against an interlocutory
judgments and orders.
As the Subject Matter of Question order or matters where
The doubt or no appeal may be taken
amended)
controversy concerns from. (Sec. 1, Rule 41,
The doubt or
the correct ROC, as amended)
difference arises as to
application of law or As to Inclusion to the Appellate Process
the truth or falsehood
jurisprudence to a A continuation of the Not part of the
of facts; or
certain given set of appellate process over appellate process, it is
facts; or the original case. an independent action.
As to the Availability of Witness Examination As to the Questions Raised
When the query Raises questions of law Raises questions of
invites the calibration jurisdiction
of the whole evidence As to Time Period for Filing
When the issue does considering mainly: Filed not later than 60
not call for an days from notice of
examination of the a. The credibility of judgment, order or
from notice of judgment,
probative value of the the witnesses; resolution sought to be
final order or resolution
evidence presented, b. The existence and assailed, or from notice
appealed from.
the truth or falsehood relevancy of specific of denial of an MR or
of facts being admitted. surrounding MNT.
(Irene Marcos-Araneta, circumstances, as well As to Staying of Judgement Appealed From
et al. v. CA, G.R. No. as their relation to Does not stay the
154096, 22 Aug. 2008) each other and to the judgment or order
whole; and Stays the judgment
subject of the petition,
c. The probability of sought to be appealed
unless enjoined or
the situation. restrained.
As to the Requirement of a Prior Motion for
NOTE: The petition for review on certiorari may Reconsideration
include an application for a writ of preliminary Requires, as a general
injunction or other provisional remedies and shall rule, a prior motion for
raise only questions of law which must be distinctly Does not require a prior reconsideration. (Bases
set forth. The petitioner may also seek the same motion for Conversion and
provisional remedies by verified motion filed in the reconsideration Development Authority
same action or proceeding at any time during its v. Uy, G.R. No. 144062, 02
pendency. (Sec. 1, Rule 45, ROC, as amended) Nov. 2006)
As to the Parties involved in the proceeding
The parties are the The tribunal, board, or
original parties with the officer exercising

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appealing party as the judicial or quasi- Appeal from Judgment or Final Order of the
petitioner and the judicial functions is Sandiganbayan
adverse party as the impleaded as
respondent, without respondent. (Sec. 5 Rule 1. The appeal to the SC in criminal cases decided
impleading the lower 65, ROC, as amended) by the Sandiganbayan in the exercise of its
court or its judge. (Sec. original jurisdiction – by notice of appeal; and
4(a), Rule 45, ROC, as 2. The appeal to the SC in criminal cases decided
amended) by the Sandiganbayan in the exercise of its
As to the Court which have Jurisdiction. appellate jurisdiction – by petition for review on
Filed with the RTC (Sec. certiorari under rule 45. (Sec. 1(a), Rule XI, A.M.
21, B.P. 129); No. 13-7-05-SB, effective 16 Nov. 2018)
Filed with the SC. (Sec. 1, With the CA (Sec. 9, B.P.
Rule 45, ROC, as 129); or
amended) With the SC (Sec. 5(1), F. RULE 64 – REVIEW OF JUDGEMENTS OR
Article VIII, 1987 FINAL ORDERS OF THE COMMISSION ON AUDIT
Constitution) AND THE CMISSION OF ELECTION
Motu Proprio Denial of the Petition for Review

by the SC A judgment, resolution or final order of the
COMELEC and the COA may be brought by the
1. The appeal is without merit; aggrieved party to the SC on certiorari under Rule
2. Prosecuted manifestly for delay; or 65 by filing the petition within 30 days from notice
3. That the questions raised therein are too of the judgment or final order. (Sec. 2, Rule 64, ROC,
unsubstantial to require consideration. (Sec. 5, as amended)
On the other hand, judgments, final orders or
Availment of Both Remedies under Rule 45 and resolutions of the CSC may be taken to the CA under
65 Rule 43 of the Rules of Court. (Secs. 1 & 3 Rule 43,
ROC, as amended)
GR: The remedy of appeal under Rule 45 and an
original action for certiorari under Rule 65 are Jurisdiction of CA to Review the Decisions in
mutually exclusive and not alternative or Criminal and Administrative Cases of the
cumulative. Thus, a party should not join both Ombudsman
petitions in one pleading. (NAMAPRI – SPFL v. CA,
G.R. Nos. 148839-49, 02 Nov. 2006) 1. In administrative disciplinary cases, the rulings
of the Office of the Ombudsman are appealable
XPN: The SC may set aside technicality for to the CA under Rule 43.
justifiable reasons as when the petition before the
Court is clearly meritorious and filed on time both 2. Where the findings of the Ombudsman on the
under Rules 45 and 65. In accordance with the existence of probable cause in criminal cases is
liberal spirit which pervades the Rules of Court and tainted with grave abuse of discretion
in the interest of justice, the Court may treat the amounting to lack or excess of jurisdiction, the
petition as having been filed under Rule 45. aggrieved party may file a petition for certiorari
(International Corporate Bank, Inc. v. CA, G.R. No. with the SC under Rule 65. (Enemecio v. Office of
129910, 05 Sept. 2006) the Ombudsman, G.R. No. 146731, 13 Jan. 2004)
3. In criminal cases, the ruling of the Ombudsman

shall be elevated to the SC by way of Rule 65.

e

Review of Final Judgments or Final Orders of the A: NO. Jurisprudence has settled that DARAB
NLRC possesses no power to issue writs of certiorari.
Jurisdiction, or the legal power to hear and
The remedy is to promptly move for the determine a cause or causes of action, must exist as
reconsideration of the decision and if denied, to a matter of law. It is settled that the authority to
timely file a special civil action of certiorari under issue writs of certiorari, prohibition, and mandamus
Rule 65 within 60 days from notice of the decision. involves the exercise of original jurisdiction which
In observance of the doctrine of hierarchy of courts, must be expressly conferred by the Constitution or
the petition for certiorari should be filed in the CA. by law.
(St. Martin Funeral Homes v. NLRC, G.R. No. 130866,
16 Sept. 1998) As an administrative agency exercising quasi-
judicial but not consummate judicial power, DARAB
NOTE: Those judgments and final orders or is inherently incapable of issuing writs of certiorari.
resolutions of the Employees Compensation This is not merely a matter of statutorily stipulated
Commission should be brought to the CA through a competence but a question that hearkens to the
petition for review under Rule 43. separation of government's tripartite powers:
executive, legislative, and judicial. DARAB's exercise
Review of Judgments or Final Orders of Quasi- of the innately judicial certiorari power is an
Judicial Agencies executive encroachment into the judiciary. It
violates the separation of powers; it is
It is an organ of the government other than a court unconstitutional. With or without a law enabling it,
and other than a legislature, which affects the rights DARAB has no power to rule on jurisdictional
of private parties either through adjudication or controversies via petitions for certiorari. DARAB's
rulemaking. self-serving grant to itself of the power to issue
writs of certiorari in the 1994 DARAB New Rules of
Q: Eliza voluntarily offered for sale to the Procedure is itself a grave abuse of discretion
government, under Comprehensive Agrarian amounting to lack or excess of jurisdiction. It must
Reform Program, a parcel of land. Pursuant to be annulled for running afoul of the Constitution.
E.O. No. 405, Landbank made a valuation of the (Heirs of Eliza Q. Zoleta v. Landbank of the
land. Eliza, thereafter, rejected Landbank’s Philippines, G.R. No. 205128, 09 Aug. 2017)
valuation. Thus, the matter was endorsed to the
Office of the Provincial Agrarian Reform Effect of Appeal on the Award, Judgment, Final
Adjudicator (PARAD) and then was transferred Order or Resolution
to the Office of Regional Agrarian Reform
Adjudicator (RARAD). The Regional Adjudicator The appeal shall not stay the award, judgment, final
(RA) fixed the compensation. Not satisfied, order or resolution sought to be reviewed unless the
Landbank filed a petition for just compensation CA shall direct otherwise upon such terms as it may
before the RTC, acting as Special Agrarian Court deem just. (Sec. 12, Rule 43, ROC, as amended)
(SAC). Eliza filed a Motion for Execution of
Judgment before the Office of the RA. The RA Remedy of a Party Aggrieved by the Decision of
granted the motion for execution and issued an a Quasi-judicial Agency
order directing the issuance of a writ of
execution and an alias writ of execution since The aggrieved party must file a verified petition for
the former was returned unsatisfied. Landbank review under Rule 43 in 7 legible copies within 15
sought from the SAC the quashal of the writ days from:
which the SAC denied. Hence, it filed before the
Department of Agrarian Reform Adjudication 1. Notice of the award, judgment, final order or
Board (DARAB) a petition for certiorari. DARAB resolution;
granted. Does DARAB has jurisdiction in 2. Date of publication, if publication is required by
granting the petition for certiorari? law for its effectivity; or

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3. Denial of petitioner’s MNT or MR. (Sec. 4, Rule As to the Effect of the Factual Findings
43, ROC, as amended) Factual findings are Factual findings are
not conclusive to the conclusive upon the CA
Contents of Comment to the Petition CA. if supported by
substantial evidence.
The comment shall:
1. Point out the insufficiencies or inaccuracies in G. DISMISSAL, REINSTATEMENT, AND

petitioner’s statement of facts and issues; and WITHDRAWAL OF APPEAL
2. State the reasons why the petition should be
denied or dismissed. (Sec. 9, Rule 43, ROC, as
amended)
Grounds for Dismissal of Appeal before the CA
NOTE: It shall be filed within 10 days from notice in
An appeal may be dismissed by the Court of Appeals,
7 legible copies and accompanied by clearly legible
on its own motion or on that of the appellee, on the
certified true copies of such material portions of the
following grounds:
record referred to therein together with other
supporting papers.
a. Failure of the record on appeal to show on its
face that the appeal was taken within the period
Extension of Time to file Petition for Review
fixed by these Rules;
b. Failure to file the notice of appeal or the record
Upon proper motion and the payment of the full
on appeal within the period prescribed by these
amount of the docket fee before the expiration of the
Rules;
reglementary period, the CA may grant additional
c. Failure of the appellant to pay the docket and
period of 15 days only within which to file a petition
other lawful fees as provided in Sec. 5, Rule 40
for review. No further extension shall be granted
and section 4 of Rule 41 (Bar Matter No. 803, 17
except for the most compelling reason and in no
Feb. 1998);
case to exceed 15 days. (Sec. 4, Rule 43, ROC, as
d. Unauthorized alterations, omissions or
amended)
additions in the approved record on appeal as
provided in Sec. 4 of Rule 44;
Appeal from RTC as Appellate Court under Rule
e. Failure of the appellant to serve and file the
42 vs. Appeal from Quasi-judicial Agencies
under Rule 43
memorandum within the time provided by
these Rules;
RTC AS APPELLATE APPEAL FROM
f. Absence of specific assignment of errors in the
COURT (Rule 42) QUASI-JUDICIAL
appellant's brief, or of page references to the
AGENCIES (Rule 43)
record as required in Sec. 13, paragraphs (a),
As to Effect
(c), (d) and (f) of Rule 44;
g. Failure of the appellant to take the necessary
GR: Decision is
steps for the correction or completion of the
immediately
record within the time limited by the court in its
executory. It is not
order;
stayed by an appeal.
Decision is stayed by h. Failure of the appellant to appear at the
an appeal. preliminary conference under Rule 48 or to
XPN: CA shall direct
comply with orders, circulars, or directives of
otherwise upon such
the court without justifiable cause; and
terms as it may deem
i. The fact that the order or judgment appealed
just.
from is not appealable. (Sec. 1, Rule 50, ROC, as
amended)

e

Dismissal of Improper Appeal to the Court of undue denial of the petitioner's right to appeal. The
Appeals importance and real purpose of the remedy of
appeal has been emphasized in Castro v. Court of
An appeal under Rule 41 taken from the RTC to the Appeals where this Court ruled that an appeal is an
CA raising only questions of law shall be dismissed, essential part of our judicial system and trial courts
issues purely of law not being reviewable by said are advised to proceed with caution so as not to
court. Similarly, an appeal by notice of appeal deprive a party of the right to appeal and instructed
instead of by petition for review from the appellate that every party-litigant should be afforded the
judgment of a RTC shall be dismissed. amplest opportunity for the proper and just
disposition of his cause, freed from the constraints
An appeal erroneously taken to the CA shall not be of technicalities. (Lazaro vs. Court of Appeals, G.R. No.
transferred to the appropriate court but shall be 137761, 06 Apr. 2000)
dismissed outright. (Sec. 2, Rule 50, ROC, as
amended) Payment of Appellate Docket Fees
Prior to the transmittal of the original record or the It is an established rule is that the payment in full of
record on appeal to the appellate court, the trial the docket fees within the prescribed period is
court, may motu proprio or on motion, dismiss the mandatory. Nevertheless, this rule must be
appeal for having been taken out of time or for non- qualified, to wit:
payment of the docket and other lawful fees within
the reglementary period. (Sec. 13, Rule 41, ROC, as 1. The failure to pay appellate court docket fee
amended) within the reglementary period allows only
discretionary dismissal, not automatic
Grounds for Dismissal of Appeal Before the SC dismissal, of the appeal; and
2. Such power should be used in the exercise of
1. The appeal may be dismissed motu proprio or the Courts' sound discretion ‘in accordance
on motion of the respondent on the following with the tenets of justice and fair "play and with
grounds: great deal of circumspection considering all
2. Failure to take the appeal within the attendant circumstances.
reglementary period;
3. Lack of merit in the petition; Admittedly, the SC has allowed the filing of an
4. Failure to pay the requisite docket fee and other appeal in some cases where a stringent application
lawful fees or to make a deposit for costs; of the rules would have denied it, only when to do
5. Failure to comply with the requirements so would serve the demands of justice and in the
regarding proof of service and contents of and exercise of the SC’s equity jurisdiction. (Sps.
the documents which should accompany the Buenaflor vs. Court of Appeals, G.R. No. 142021, 29
petition; Nov. 2000)
6. Failure to comply with any circular, directive or
order of the Supreme Court without justifiable Withdrawal of Appeal
cause;
7. Error in the choice or mode of appeal; and An appeal may be withdrawn as of right at any time
8. The fact that the case is not appealable to the before the filing of the appellee's brief. Thereafter,
Supreme Court. (Sec. 5, Rule 56, ROC, as the withdrawal may be allowed in the discretion of
amended) the court. (Sec. 3, Rule 50, ROC, as amended)
Reinstatement of Appeal Ordinary Appeal from the RTC to the CA
The underlying consideration in this petition is that In either case, prior to the transmittal of the original
the act of dismissing the notice of appeal, if done in record or the record on appeal, the court may x x x
excess of the trial court's jurisdiction, amounts to an

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allow withdrawal of the appeal. (Sec. 9, Rule 41, ROC, error as it will not overcome the weight of the
as amended) properly admitted evidence against the prejudiced
party. (People v. Teehankee, Jr., G.R. No. 111206-08,
Petition for Review from the RTC to the CA 06 Oct. 1995)
However, before the Court of Appeals gives due

course to the petition, the Regional Trial Court may
x x x allow withdrawal of the appeal. (Sec. 8(a), Rule
DUAL FUNCTION OF APPELLATE COURTS
Review for Correctness Function
This is the function of the appellate court to review

a case on appeal to assure that substantial justice
has been done and is concerned with the justice of
the particular case and with the doctrine of res
judicata.
Institutional Function
This is the function of the appellate court to

contribute to the progressive development of the
law for general application to the judicial system
and is concerned with the doctrine of stare decisis,
which refers to the precedential value which assists
in deciding future similar cases. (Bersamin, Appeal
and Review in the Philippines, 01 Jan. 2000)
The “Harmless Error Rule” in Appelate

Decisions
No error in either the admission or the exclusion of

evidence and no error or defect in any ruling or
order or in anything done or omitted by the trial
court or by any of the parties is ground for granting
a new trial or for setting aside, modifying, or
otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court
inconsistent with substantial justice. The court at
every stage of the proceeding must disregard any
error or defect which does not affect the substantial
rights of the parties. (Sec. 6, Rule 51, ROC, as
amended)
In dealing with evidence improperly admitted in

trial, we examine its damaging quality and its
impact to the substantive rights of the litigant. If the
impact is slight and insignificant, we disregard the

e

Appeals in Criminal Cases
Effect of Appeal by the Accused

IV. APPEALS IN CRIMINAL CASES: MODES OF
APPEAL FROM JUDGEMENTS OR FINAL ORDERS When the accused appeals his conviction, he waives
OF VARIOUS COURTS/TRIBUNALS the protection on the prohibition against double
jeopardy and runs the risk of being sentenced to a
penalty higher than that imposed by the trial court.
(Philippine Rabbit Bus Lines, Inc. v. People, GR No.
147703 April 14, 2004) (Philippine Rabbit Bus Lines,
A. RULE 112 Inc. v. People, GR No. 147703 14 Apr. 2004)
Q: May the prosecution appeal a judgment of

Appeal acquittal?
A proceeding for review by which the whole case is A: GR: NO. The accused would be subjected to
transferred to the higher court for a final double jeopardy.
determination. The right of appeal is a mere
statutory privilege. Only final judgments and orders XPNs:
are appealable. 1. If the dismissal is made upon motion or with the
express consent of the accused;
In all criminal prosecutions, the accused shall have
the right to appeal in the manner prescribed by law. XPNs to the XPN:
It is an essential part of our judicial system and trial a. Insufficiency of the prosecution
courts are advised to proceed with caution so as not evidence; or
to deprive a party of the right to appeal and b. Violation of the accused’s right to speedy
instructed that every party-litigant should be trial.
afforded the amplest opportunity for the proper and
just disposition of his cause, freed from the 2. If the dismissal is not an acquittal or based upon
constraints of technicalities. While this right is consideration of the evidence on the merits;
statutory, once it is granted by law, however, its 3. If the question is purely legal so that should the
suppression would be a violation of due process, a dismissal be found incorrect, the case shall be
right guaranteed by the Constitution. (Hilario v. remanded for further proceedings to determine
People, G.R. No. 161070, 14 Apr. 2008) the guilt or innocence of the accused; and
4. If there is a showing of grave abuse of discretion
Period to Take an Appeal amounting to lack or excess of jurisdiction,
certiorari under Rule 65 may be available.
It must be taken within 15 days from promulgation
of judgment or from notice of final order appealed Modes of Appeal
from. (Sec. 6, Rule 122, ROC, as amended)
Modes of appeal that may be taken from a judgment
Who may Appeal convicting the accused are:
Any party may appeal from a judgment or final 1. The accused may seek a review of said
order, unless the accused will be placed in double judgment as regards both criminal and civil
jeopardy. (Sec. 1, Rule 122, ROC, as amended) actions; or
2. The private offended party may appeal only
NOTE: The authority to represent the State in with respect to the civil action either because
appeals of criminal cases before the Court of the lower court has refused or failed to award
Appeals and the Supreme Court is solely vested in damages or because the award made is
the Solicitor General. unsatisfactory to him.

Remedial Law
Modes of review recognized by the Rules of Court: NOTE: Parole refers to the conditional release of an
offender from a correctional institution after he
1. Ordinary appeal; serves the minimum term of his prison sentence.
2. Petition for review;
3. Petition for review on certiorari; and Appeal from the Civil Aspect
4. Automatic appeal.
1. The appeal of the offended party from the civil
Effect of an Appeal aspect shall not affect the criminal aspect of the
judgment or order appealed from.
An appeal in a criminal case opens the whole case 2. The appeal period accorded to the accused
for review and this includes the review of penalty, should also be available to the offended party
indemnity, and the damages involved. who seeks redress of the civil aspect of the
Consequently, on appeal, the appellate court may decision. The period to appeal granted to the
increase the penalty and indemnity of damages offended party is the same as that granted to the
awarded by the trial court although the offended accused. (Riano, 2019)
party had not appealed from said award, and the
party who sought a review of the decision was the Death of the Accused Pending Appeal
accused.
Upon the death of the accused pending appeal of his
Effect of Perfection of Appeal with regard to the conviction, the criminal action is extinguished
Jurisdiction of the Court inasmuch as there is no longer a defendant to stand
as the accused; the civil action instituted therein for
Once an appeal in a case, whether civil or criminal, the recovery of civil liability ex delicto is ipso facto
has been perfected, the court a quo loses jurisdiction extinguished, grounded as it is on the criminal
over the case both over the record and over the action. (People v. Paras, G.R. No. 192912, 03 Oct.
subject of the case. (Director of Prisons v. Teodoro, 2014)
G.R. No. L-9043, 30 July 1955) Failure to serve a copy
to the prosecutor is not a defect which can nullify Factual Findings of the Trial Court
the appeal or prejudice the unquestionable rights of
the accused. GR: The trial court’s factual findings are accorded
great respect and even conclusive effect if duly
Effects of Failure to Prosecute an Appeal supported by evidence.
1. Judgment of the court becomes final. XPNs: When facts or circumstances of weight and
2. Accused cannot be afforded the right to appeal substance have been:
unless: 1. Overlooked;
2. Misapprehended;
a. He voluntarily submits to the jurisdiction of 3. Misinterpreted; or
the court; or 4. The court gravely abused its discretion
b. He is otherwise arrested within 15 days
from notice of judgment against him. Where to Appeal
Appeal Not Mooted by Accused’s Release on Appeals shall be taken before the:
Parole
1. To the RTC, in cases decided by the MTC, MTCC,
Parole is not one of the modes of totally MeTC, or MCTC;
extinguishing criminal liability under Article 89 of 2. To the CA or to the SC in the proper cases
the RPC. provided by law, in cases decided by the RTC;
3. To the SC, in cases decided by the CA (Sec. 2,

e

4. To the SC, in cases decided by CTA En Banc (Sec. granted if the defendant has perfected an appeal
1 Rule 116, ROC, as amended); from the judgment of conviction. (Sec. 4, P.D. 968 as
5. To the SC, in cases decided by Sandiganbayan. amended) Therefore, that an appeal should not bar
(Sec. 1, Rule 45, ROC, as amended) the accused from applying for probation if the
appeal is taken solely to reduce the penalty (in order
Service of Notice of Appeal to “qualify” for probation) is contrary to the clear
and express mandate of the law. (Boado, 2015)
GR: Notice of appeal should be served upon the
adverse party or his counsel by personal service. NOTE: Appeal and probation are mutually exclusive
remedies. Implicit in an application for probation is
XPN: If personal service cannot be made, through: an admission of guilt. (Almero v. People, GR No.
188191, 12 Mar. 2014)
a. Registered mail; or
b. By substituted service pursuant to Secs. 7 and Stay of Execution
8 of Rule 13 (Sec. 4, Rule 122, ROC, as
amended) Upon perfection of the appeal, the execution of the
c. By publication, made in a newspaper of judgment or final order appealed from shall be
general circulation in the vicinity once a week stayed as to the appealing part. (Sec. 11(c), Rule 122,
for a period not exceeding 30 days. (Pamaran, ROC, as amended)
2010)
NOTE: The benefit of the stay of execution afforded
NOTE: The appellee may waive his right to notice of to a co-accused, who timely files an appeal, cannot
appeal. However, the appellate court may, in its be extended to those who failed to file the same.
discretion, entertain an appeal notwithstanding Thus, the period to appeal continued to run against
failure to give such notice if the interests of justice the accused who did not appeal even if his co-
so require. (Sec. 5, Rule 122, ROC, as amended) accused appealed. (Riano, 2019)
Period to Withdraw an Appeal Effect of Appeal by any of Several Accused
1. An appellant may withdraw his appeal before Appeal taken by any of the several accused shall
the record has been forwarded by the clerk of have the following effects:
court to the proper appellate court as provided
by Sec. 8, Rule 122, in which case the judgment 1. It shall not affect those who did not appeal,
shall become final. (Sec. 12, Rule 122, ROC, as except insofar as the judgment of the appellate
amended) court is favorable and applicable to the latter
(People v. Gandia, G.R. No. 175332, 06 Feb. 2008)
2. The court may also, in its discretion, allow the
appellant to withdraw his appeal, provided a 2. The appeal of the offended party from the civil
motion to that effect is filed before the rendition aspect shall not affect the criminal aspect of the
of the judgment in the case on appeal. (Sec. 12, judgment or order appealed from; and
3. Upon perfection of the appeal, the execution of
Probation the judgment or final order appealed from shall
be stayed as to the appealing party. (Sec. 11,
The court may, after it shall have convicted and Rule 122, ROC, as amended)
sentenced a defendant within the period for
perfecting an appeal, suspend the execution of the NOTE: In People v. Olivo (G.R. No. 177768, 27 July
sentence and place the defendant on probation for 2009), an accused has benefitted from the acquittal
such period and conditions it may deem best. No of his co-accused despite the former’s failure to
application for probation shall be entertained or appeal from the judgment.

Remedial Law
Grounds for Dismissal of Appeal record within the time limited by the court in its
order.
1. Failure of the appellant to serve and file the
required number of copies of his brief of Erroneous Mode of Appeal
these Rules; In cases where the contention of the adverse party
2. Appellant escapes from prison or confinement, that the ordinary appeal filed by appellant be
jumps bail or flees to a foreign country during dismissed because the proper remedy is petition for
the pendency of the appeal. review on certiorari was rejected. The Supreme
3. Failure of the record on appeal to show on its Court said that in cases similarly situated, and as
face that the appeal was taken within the period long as the steps formally required for the
fixed by these Rules; perfection of an appeal were taken in due time,
4. Failure to file the notice of appeal or the record appeal may be given due course, without prejudice
on appeal within the period prescribed by these to requiring the appellant to file the necessary
Rules; petition for review on certiorari which is also a form
5. Failure of the appellant to pay the docket and of appeal. (People v. Resuello, G.R. No. L-30165, 23
other lawful fees as provided in Sec. 5 of Rule 40 Feb. 1971)
and Sec. 4 of Rule 41;
6. Unauthorized alterations, omissions or Rule if the Opinion of the Supreme Court en banc
additions in the approved record on appeal as is Equally Divided
provided in Sec. 4 of Rule 44;
7. Absence of specific assignment of errors in the When the SC en banc is equally divided in opinion or
appellant’s brief, or of page references to the the necessary majority cannot be had on whether to
record as required in Sec. 13, paragraphs (a), acquit the appellant, the case shall again be
(c), (d) and (f) of Rule 44; and deliberated upon and if no decision is reached after
8. Failure of the appellant to take the necessary re-deliberation, the judgment of conviction of the
steps for the correction or completion of the lower court shall be reversed and the accused
acquitted. (Sec. 3, Rule 125, ROC, as amended)
B. HOW APPEALS ARE TAKEN
FROM DECISION OF HOW TAKEN

Appealed to the RTC
1. File a notice of appeal with the MTC;
MTC
II II
2. Serve a copy of the notice to the adverse party.

Appealed to the CA
RTC
A. Exercising its original jurisdiction for offenses with 1. File a notice of appeal with the RTC;
imposable penalties less than reclusion perpetua or life 2. Serve a copy of the notice to the adverse party.
imprisonment.
B. Exercising its appellate jurisdiction. File a petition for review under Rule 42.
C. Where the imposable penalty is:
a. if imprisonment or reclusion perpetua; or
b. a lesser penalty for offenses committed on the same 1. File a notice of appeal with the RTC;
occasion or which arose from the same occurrence that 2. Serve a copy of the notice to the adverse party.
gave rise to the offense punishable reclusion perpetua or
life imprisonment.
Automatic review to CA (Sec. 10, Sec. 122, ROC,
D. Where the imposable penalty is death.
as amended).

e

Appealed to the Supreme Court

All other appeals except:
a. Decision of RTC where the imposable penalty is life

imprisonment or reclusion perpetua or a lesser penalty
for offenses committed on the same occasion or which
arose from the same occurrence that gave rise to the
offense punishable by reclusion perpetua or life Petition for review on certiorari via Rule 45.
imprisonment; and
b. Decisions of RTC imposing the penalty of death.
NOTE: By virtue of RA 9346, the imposition of death

penalty is prohibited.
CA
Automatic review. (Sec. 13, Rule 124, ROC, as
a. When it finds that death penalty should be
amended)
imposed.
b. Where it imposes reclusion perpetua, life Notice of appeal. (Sec. 13, Rule 124, ROC, as
imprisonment or a lesser penalty. amended)
Sandiganbayan
(a) Exercising its appellate jurisdiction for offenses where File a notice of appeal.
the imposable penalty is reclusion perpetua or life
imprisonment.
(b) Exercising its original jurisdiction for offenses where File a notice of appeal.
the imposable penalty is reclusion perpetua and life (Sec. 13, Rule 124, ROC, as amended; Sec. 5, PD
imprisonment. 1606 as amended by RA 8249).
Cases not falling in paragraphs (a) and (b) above. Petition for review on certiorari via Rule 45.

Procedure in Tax Cases
gross receipts
V. PROCEDURE IN TAX CASES u. Prescribing real estate values
v. Termination of tax period
w. Arrest, search and seizure in certain cases
x. Giving informer’s rewards
y. Inquiring into bank deposits in certain
A. TAX REMEDIES UNDER THE NATIONAL
cases
INTERNAL REVENUE CODE
2. Judicial remedies
LEGAL BASIS OF TAX REMEDIES a. Ordinary civil action

i. Court collection filed in court
1. Government – Lifeblood doctrine ii. Hold-order against the departure of
2. Taxpayer – Due process clause of the erring taxpayer
Constitution b. Criminal action – pursuing criminal
prosecution of taxpayer
REMEDIES OF THE GOVERNMENT
NOTE: The government may use these remedies
singly or independently of each other, repeated or
These are courses of action provided or allowed by
some or all of them simultaneously until there is full
law to implement the tax laws or enforce tax
settlement of the taxpayer’s liability.
collection.
1. Administrative or Extrajudicial remedies REMEDIES OF THE TAXPAYER
a. Assessment It is an action available to either the government or

b. Compromise a taxpayer whether judicial or extrajudicial, to
c. Tax lien enforce collection of taxes, on the part of the former,
d. Distraint or to prevent arbitrary collection of taxes, abuses, or
e. Levy harassment, by those enforcing the tax and payment
f. Garnishment of illegal taxes, in the part of the latter.
g. Forfeiture of real property
h. Public sale of forfeited properties 1. Administrative or Extrajudicial Remedies
i. Suspension of business operation
j. Enforcement of administrative fines a. Before payment:
(surcharge and interest) i. Tax minimization (Tax avoidance)
k. Requiring the filing of bond to secure tax ii. Secure BIR ruling or opinion of the
liability CIR
l. Requiring proof of filing Income Tax Return iii. Amendment of the tax return –
m. Deportation of aliens within three (3) years from
n. Use of national tax registry submission of that which is to be
o. Use of authorized cash machines by amended provided there is no
business establishments investigation/ audit or assessment
p. Requiring printers to secure authority from yet.
BIR to print receipts/invoices
q. Obtaining information from others about NOTE: This may trigger tax audit
subject taxpayer investigation – in order for the BIR to
r. Abatement check whether amendment is
s. Inventory taking/Surveillance proper.
t. Prescribing presumptive gross sale or

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iv. Disputing an assessment v. People’s power or initiatives

v. Compromise of the administrative, vi. Use of ballot boxes to choose public
civil, criminal case officials that are sympathetic to
vi. Abatement of tax liability taxpayers
vii. Abandonment of imported goods vii. Running for a seat in the Congress to
influence revenue bills
b. After payment:
i. Tax refund following the periods ASSESSMENT OF INTERNAL REVENUE TAXES
prescribed by law
ii. Amendment of return with payment TAX ASSESSMENT
and claim for refund or credit within
two (2) years from payment A formal written notice/communication with the
iii. Payment of the assessed tax without computation of the tax liability sent to the taxpayer
disputing the same and claim for tax and demanding for the settlement of a due tax
refund or credit within two (2) years liability within the indicated period thereof.
from payment
iv. Question the validity of forfeiture The NIRC defines the specific functions and effects
v. Redemption of real property of an assessment. An assessment informs the
taxpayer that he or she has tax liabilities. But not
2. Judicial Remedies all documents coming from the BIR containing a
computation of the tax liability can be deemed
a. Civil Remedies assessments. (Commissioner of Internal Revenue v.
i. Appeal to the CTA Pascor Realty & Development Corporation, G.R. No.
ii. Secure injunction order or file a 128315, 29 June 1999)
motion to suspend collection of taxes
from the CTA In the context in which it is used in the NIRC, an
iii. Appeal from CTA to SC assessment is a written notice and demand
iv. Sue internal revenue officer for made by the BIR on the taxpayer for the
damages caused in the performance settlement of a due tax liability that is there
of their duties arbitrarily definitely set and fixed. (Adamson v. CA, G.R. No.
v. Action to contest forfeiture of chattel, 120935 & 124557, 21 May 2009)
enjoin its sale or recover
proceeds of sale Tax assessment is the official action of an officer
vi. Action to question the validity of sale authorized by law in ascertaining the amount of tax
of properties under distraint, levy, due under the law from a taxpayer. This action
garnishment, or tax lien necessarily involves:
b. Criminal Remedies – criminal action 1. The computation of the sum due;

against tax officials in the ordinary courts 2. Giving notice to that effect to the taxpayer; and
for harassment, injury, and the like. 3. The making, simultaneously with or sometime
after the giving of notice, of a demand upon him
c. Special Remedies for the payment of the deficiency stated. (Tabag,
i. Appeal to the President of the 2015)
Republic in case of revocation of
license to do business in the country
ii. Secure favorable legislation by
participating public hearing
iii. Publishing tax views in the media or
use of broadcast media
iv. Lobbying in Congress

Importance of a tax assessment Philippines, Inc. v. CIR, G.R. No. 222743, 05 Apr.
2017)
TO THE
TO THE GOVERNMENT
TAXPAYER Kinds of assessments
1. To enforce taxpayer
1. To be
liabilities and certain 1. Self-assessment (Sec. 56(A), NIRC) – When the
informed of
matters that relate to it, taxpayer computes his own liability, files his
his deficiency
such as the imposition return, and pays the tax based on his
tax liabilities;
of surcharges and computation.
2. To determine
interests;
the period to
2. Statute of Limitations; 2. Deficiency assessment (Sec. 56(B), NIRC) –
protest;
3. Establishment of tax this occurs upon discovery of the BIR that the
3. To determine
liens; and self-assessment was either deficient or when no
prescription of
4. In estimating the return was made by the taxpayer. (Ingles, 2015)
government
revenues that may be
claim.
collected. Q: Do all types of taxes require issuance of
assessment?
What Does Not Constitute an Assessment
A: NO.
1. The Advice of Tax Deficiency and Preliminary
Five-Day Letter given by the CIR to an employee GR: Internal Revenue Taxes are self-assessing and
of taxpayer are not valid substitutes for the do not require the issuance of an assessment notice
mandatory notice in writing of the legal and in order to establish the tax liability of a taxpayer.
factual bases of the assessment (Tupaz v. Ulep, G.R. No. 127777, 01 Oct. 1999) The
NIRC follows the pay-as-you-file system of
2. The Revenue Officers’ Affidavit-Report, which taxation under which the taxpayer computes his
was attached to the Criminal Complaint filed own tax liability, prepares the return, and pays the
with the Department of Justice, does not tax as he files the return.
constitute an assessment. (Commissioner of
Internal Revenue v. Pascor Realty & Development XPN:
Corporation, G.R. No. 128315, 29 June 1996) 1. When the taxable period of a taxpayer is
terminated (Sec. 6 (D), NIRC)
3. A Written Communication by a revenue officer 2. In case of deficiency tax liability arising from a
of tax liability of the taxpayer, giving him an tax audit conducted by the BIR (Sec. 56 (B), NIRC)
opportunity to contest or disprove the BIR 3. Tax lien (Sec. 219, NIRC)
examiner’s findings is not an assessment since 4. Dissolving corporation (Sec. 52 I, NIRC)
it is yet indefinite. The said recommendation 5. Improperly Accumulated Earnings Tax (Sec. 29,
letter served merely as the prima facie basis for NIRC)
filing criminal information for the violation of
the NIRC. (Adamson v. Court of Appeals, G.R. Modes of Service
Nos. 120935 & 124557, 21 May 2009)
1. Personal service
4. A Letter Notice (LN) is entirely different and 2. Service by mail
serves a different purpose than a Letter of 3. Substituted delivery
Authority (LOA). Due process demands that
after an LN has served its purpose, the Revenue Service to the tax agent/practitioner, who is
Officer should properly secure a LOA before appointed by the taxpayer, shall be deemed service
proceeding with the further examination and to the taxpayer. (RR No. 18-2013)
assessment of a taxpayer. (Medicard

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When assessment is made capricious. Where the BIR has come out with a
“naked assessment” i.e., without any foundation
An assessment is deemed made only when the character, the determination of the tax due is
Collector of Internal Revenue RELEASES, MAILS OR without rational basis. (CIR v. Hantex Trading
SENDS such notice to the taxpayer. (CIR, v. Pascor Co. Inc., G.R, No. 136975, 31 Mar. 2005)
Realty and Development Corporation, et. al. G.R. No.
128315, 29 June 1999) 2. Should be based on Actual facts. (CIR vs.
Benipayo, G.R. No. L-13656, 31 Jan. 1962)
Principles governing tax assessments (P-A-D3)
However, in the absence of the accounting
1. Prima facie presumed correct and made in records of a taxpayer, his tax liability may be
good faith determined by estimation. The CIR is not
required to compute such tax liabilities with
GR: Assessments are prima facie presumed mathematical exactness. Approximation in the
correct and made in good faith, with the calculation of the taxes due is justified.
taxpayer having the burden of proving However, the rule does not apply where the
otherwise. (FELS Energy, Inc. v. The Province of estimation is arrived at arbitrarily and
Batangas, et al., G.R. No. 168557, 16 Feb. 2007) capriciously. (CIR v. Hantex Trading Co. Inc., G.R,
No. 136975, 31 Mar. 2005)
In the absence of any irregularities in the
performance of official duties, an assessment An assessment on estimates is prima facie valid
will not be disturbed. Failure to present proof and lawful where it does not appear to have
of error in assessments will justify judicial been arrived at arbitrarily or capriciously. The
affirmance of said assessment. (Atlas burden of proof is upon the complaining party
Consolidated Mining and Development to show clearly that the assessment is
Corporation v. Court of Appeals, G.R. No. 105563, erroneous. Failure to present proof of error in
10 Mar. 1995) the assessment will justify the judicial
affirmance of the said assessment. (RMC No. 23-
The burden of proof is on the taxpayer 2000)
contesting the validity or correctness of an
assessment to prove not only that the CIR is 3. Discretionary on the part of the
wrong but the taxpayer is right. Otherwise, the Commissioner
presumption in favor of correctness of tax
assessment stands. Mandamus cannot lie to compel the CIR to
impose deficiency tax assessment. The CIR’s
Reasons for presumption of correctness of power to assess is a discretionary one. (Meralco
assessments: v. Sevillano, G.R. No. L-46245, 23 Oct. 1982)
a. Lifeblood Theory 4. Must be Directed to the right party

b. Presumption of regularity in the
performance of public functions An affidavit, which was executed by the revenue
c. The likelihood that the taxpayer will officers stating the tax liabilities of the taxpayer
have access to the relevant and attached to a criminal complaint for tax
information. evasion cannot be deemed a valid assessment,
d. The desirability of bolstering the not having been received by the taxpayer and
record-keeping requirements of the thus the taxpayer was not informed of the law
NIRC. and facts in which the assessment was made.
(CIR v. Pascor Realty Dev. Corp., G.R. No 128315,
XPN: Upon proof that an assessment is utterly 19 June 1999)
without foundation, meaning it is arbitrary and

5. The authority vested in the Commissioner to material records and data in the person of the
assess taxes may be Delegated (Sec. 7, NIRC) taxpayer. It places no limit or condition on the type
or form of the medium by which the record subject
The authority to make tax assessments may be to the order of the BIR is kept. The purpose of the
delegated to subordinate officers. Said law is to enable the BIR to get at the taxpayer's
assessment has the same force and effect as that records in whatever form they may be kept. Such
issued by the CIR if not revised or reviewed by records include computer tapes of the said records
the latter. (Oceanic Network Wireless Inc. v. CIR, prepared by the taxpayer in the course of business.
G.R. No. 148380, 09 Dec. 2005)
The best evidence obtainable may consist of hearsay
Before the delegated revenue officer can evidence, such as the testimony of third parties or
conduct examination or assessment, there must accounts or other records of other taxpayers
be a clear grant of authority. This authority is similarly circumstanced as the taxpayer subject of
embodied in a Letter of Authority (LOA) (CIR vs. the investigation. As a rule, administrative agencies
Sony Philippines, Inc. G.R. No. 178697, 17 Nov. such as the BIR are not bound by the technical rules
2010) of evidence. (CIR v. Hantex Trading Co., Inc., GR No.
136975, 31 Mar. 31, 2005)
Best Evidence Obtainable
Q: BIR assessed the taxpayer for alleged
Pursuant to CIR’s power to make assessment, the deficiency taxes. The assessment was based on
CIR shall assess the proper tax on the Best Evidence photocopies of 77 Consumption Entries
Obtainable: (FINE) furnished by an informer, the taxpayer
understated its importations. However, the BIR
1. When a report required by law as a basis for failed to secure certified true copies of the
assessment of any internal revenue tax shall subject Consumption Entries from the Bureau of
Not be forthcoming within the time fixed by law Customs since, according to the custodian, the
or regulation, or originals had been eaten by termites. Can the
2. Any such report is False, Incomplete or BIR base its assessment on mere photocopies of
Erroneous. (Sec. 6(B), NIRC) records/documents?
This rule applies when a tax report is required by A: NO. While it is true that the CIR can assess
law for the purpose of assessment and it is not taxpayers based on the “best evidence obtainable,”
available or when the report is incomplete or such best evidence obtainable does not include
fraudulent. (Sy Po vs. CTA, G.R. No. 81446, 18 Aug. photocopies of records/documents which are mere
1988) scraps of paper and are of no probative value as
basis for any deficiency income or business taxes
The "Best Evidence" includes the corporate and against a taxpayer. (CIR v. Hantex Trading Co., Inc.,
accounting records of the taxpayer who is the GR 136975, 31 Mar. 2005)
subject of the assessment process, the accounting
records of other taxpayers engaged in the same line When CIR shall compute income for taxation
of business, including their gross profit and net
profit sales. Such evidence also includes data, The CIR shall compute income for taxation in
record, paper, document or any evidence gathered accordance with the method as in his opinion clearly
by internal revenue officers from other taxpayers reflects income:
who had personal transactions or from whom the
subject taxpayer received any income; and record, 1. If no method of accounting was employed by
data, document and information secured from the taxpayer, or
government offices or agencies. 2. The accounting method employed does not
clearly reflect the income. (Sec. 43, NIRC)
The law allows the BIR access to all relevant or

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PROCEDURAL DUE PROCESS There must be a grant of authority before any

IN TAX ASSESSMENTS revenue officer can conduct an examination or
assessment and the revenue officer must not go
ASSESSMENT PROCESS beyond authority. Otherwise, the assessment or
examination is a nullity.
The assessment process starts with the self-
assessment by the taxpayer of his tax liability, the The LOA commences the audit process and informs
filing to the tax return, and the payment of the entire the taxpayer that it is under audit for possible
tax due shown in his tax return in accordance with deficiency tax assessment. It is the authority given
the methods and within the dates prescribed in the to the appropriate revenue officer to examine the
law and regulations. (Mamalateo, 2014) books and accounting records of the taxpayer to
determine correct internal revenue liabilities for
After filing a return, the Commissioner or his or her collection. (CIR v. De La Salle University, Inc., G.R. Nos.
representative may allow the examination of any 196596, 198841 & 198941 09 Nov. 2016)
taxpayer for assessment of proper tax liability. The
Commissioner can examine records or other data Effect of Absence of LOA
relevant to his or her inquiry in order to verify the
correctness of any return, or to make a return in The absence of LOA violates the taxpayer’s right to
case of noncompliance, as well as to determine and due process. No assessments can be issued without
collect tax liability. (CIR v. Fitness by Design, G.R. No. prior approval and authorization of the CIR through
215957, 09 Nov. 2016) a LOA. Any tax assessment issued without a LOA
renders the investigation null and void. (Medicard
Upon discovery of the BIR that the self-assessment Philippines, Inc. v. CIR, GR No. 222743, 05 Apr. 2017)
was either deficient or when no return was made by
the taxpayer, the BIR issues deficiency assessment. LOA must be issued and signed
(Ingles, 2015)
The only BIR officials authorized to issue and sign
DEFICIENCY ASSESSMENT PROCESS Letters of Authority are the Regional Directors, the
Deputy Commissioners and the Commissioner. The
1. Issuance of Letter of Authority other officials may be authorized to issue and sign
2. Tax Audit Letters of Authority but only upon prior
3. Notice of Discrepancy authorization by the Commissioner himself. (CIR v.
4. Issuance of Preliminary Assessment Notice McDonalds Philippines Realty Corp., GR No. 242670,
(PAN) 10 May 2021)
5. Reply
6. Issuance of Formal Letter of Demand and Final Covered Period of LOA
Assessment Notice (FAN)
7. Protest A LOA should cover a taxable period not exceeding
8. Issuance of Final Decision of Disputed one taxable year. The practice of issuing LOAs
Assessment covering audit of “unverified prior years” is
therefore prohibited. (CIR v. Sony Philippines, Inc.,
LETTER OF AUTHORITY G.R. No. 178697, 17 Nov. 2010)
A Letter of Authority (LOA) is an official document Cases which need not be covered by a valid LOA:
that authorizes a revenue officer to examine and
scrutinize a taxpayer’s books of accounts and other c. Cases involving civil or criminal tax fraud which
accounting records, in order to determine the fall under the jurisdiction of the tax fraud
taxpayer’s correct internal revenue tax liabilities. division of the Enforcement Services; and
(Sec. 13, NIRC) d. Policy cases under audit by the Special Teams in
the National Office. (RMO 36-1999)

Service of LOA investigation or re-examination of his books of

accounts and it was granted by the
It must be served to the taxpayer within 30 days commissioner;
from its date of issuance; otherwise, it shall become 3. When there is a need to verify the taxpayer’s
null and void. The taxpayer shall then have the right Compliance with withholding and other
to refuse the service of this LA, unless the LA is internal revenue taxes as prescribed in a
revalidated. (Medicard Philippines, Inc. v. CIR, G.R. Revenue Memorandum Order issued by the
No. 222743, 05 Apr. 2017) Commissioner;
4. When the taxpayer’s Capital gains tax liabilities
Q: How is LA revalidated? How often can it be must be verified; or
revalidated? 5. When the Commissioner chooses to exercise his
power to obtain information relative to the
A: Revalidated through the issuance of a new LOA. It examination of other taxpayers. (Secs. 5 and
can be revalidated: 235, NIRC)
1. only once, if issued by the Regional Director; Q: In 2010, pursuant to a LOA issued by the
2. twice, if issued by the CIR. Regional Director, Mr. Abcede was assessed
deficiency income taxes by the BIR for the year
The suspended LOAs must be attached to the new 2009. He paid the deficiency. In 2011, Mr.
issued LOA. (RMO No. 38-1988) Abcede received another LA for the same year
2009, this time from the National Investigation
Tax Audit Division, on the ground that Mr. Abcede's 2009
return was fraudulent. Mr. Abcede contested
This includes the examination of books of accounts the LA on the ground that he can only be
and other accounting records of the taxpayers by investigated once in a taxable year. Decide.
revenue officers to determine the correct tax (2013 BAR)
liability. (Mamalateo, 2014)
A: Mr. Abcede’s contention is not correct. While
Period within which an RO should conduct an the general rule is to the effect that for income tax
audit purposes, a taxpayer must be subject to
examination and inspection by the internal revenue
A revenue officer is allowed only 120 days to conduct officers only once in a taxable year, this will not
the audit and submit the required report of apply if there is fraud, irregularity or mistakes as
investigation from the date of receipt of a LOA by the determined by the Commissioner. In the instant
taxpayer. If the RO is unable to submit his final case, what triggered the second examination is the
report of investigation within the 120-day period, findings by the BIR that Mr. Abcede’s 2009 return
he must then submit a Progress Report to his Head was fraudulent, accordingly, the examination is
of Office and surrender the LOA for revalidation. legally justified. (Sec. 235, NIRC)
Q: How many times can a taxpayer be subjected Principle of estoppel

to examination and inspection for the same
taxable year? The error made by a tax official in the assessment of
his tax liabilities does not have the effect of relieving
A: GR: Only once per taxable year the taxpayer from the obligation to pay the full
amount of his tax liability, for taxes are fixed by law
XPN: (FRC3) and the government is never estopped to collect the
1. When the CIR determines that Fraud, legitimate taxes because of errors committed by its
irregularities, or mistakes were committed by agents. (Commissioner v. Atlas Consolidated Mining
the taxpayer; Co., 102 SCRA 246)
2. When the taxpayer himself requests for the Re-

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NOTICE OF DISCREPANCY PRELIMINARY ASSESSMENT NOTICE
This replaces the Notice of Informal Conference. If after review and evaluation by the Commissioner
Presently, there is no requirement for the issuance or his duly authorized representative, as the case
of a Notice for Informal Conference since RR No. 18- may be, it is determined that there exists sufficient
2013 deleted such requirement. basis to assess the taxpayer for any deficiency tax or
taxes, the said Office shall issue to the taxpayer a
A Notice of Discrepancy (ND) will be issued to the PAN for the proposed assessment. It shall show in
taxpayer if he is found to be liable for deficiency detail the facts and the law, rules and regulations, or
taxes during investigation conducted by a revenue jurisprudence on which the proposed assessment is
officer. based. (RR No. 18-2013, emphasis supplied)
It is not yet a deficiency tax assessment. It only aims NOTE: Prior to the issuance of the PAN, the taxpayer
to fully afford the taxpayer with an opportunity to may be allowed to make voluntary payments of
present and explain his side on the discrepancies probable deficiency taxes and penalties. (RMO 11-
found. 2014)
Covered Period for ND Requirements of a valid PAN
The taxpayer must be able to present and explain its 1. Due process requirements: That the assessment
side on the discrepancies noted by the BIR within 5 must be in writing and must state the facts and the
days from receipt of the notice. If the taxpayer law upon which it is based;
needs more time to present documents, he may
submit such documents after the discussion but 2. The amount must be definitely set; and
within 30 days from receipt of the ND. The
discussion of discrepancies shall not extend 3. It must contain a due date. (Laco, Manuel, Soriano,
beyond 30 days from the receipt of the notice. 2021)
If the taxpayer disagrees with the discrepancies The sending of PAN to taxpayer to inform him of the
detected during the audit, the taxpayer must assessment made is but part of the “due process
present an explanation and provide supporting requirement in the issuance of a deficiency tax
documents. Should the taxpayer need more time to assessment,” the absence of which renders nugatory
present the documents, he may submit such any assessment made by the tax authorities.
documents that support his explanation within Therefore, for its failure to send the PAN stating the
thirty (30) days after receipt of the ND. facts and the law on which the assessment was
made as required by the law, the assessment made
If after being allowed to present his side through the by the CIR is void. (CIR v. Metro Star Suprema, Inc.,
Discussion of Discrepancy, it is still found that the G.R. No. 185371, 08 Dec. 2010)
taxpayer is still liable for deficiency taxes and the
taxpayer does not address the discrepancies Exceptions to issuance of PAN
through payment of the deficiency taxes, or the
taxpayer does not agree with the findings, the GR: There must be a PAN issued by the BIR before
investigating officer shall endorse the case to the issuing a Formal Letter of Demand (FLD)/ Final
reviewing office and approving official for issuance Assessment Notice (FAN).
of a deficiency tax assessment in the form of a
Preliminary Assessment Notice (PAN) within ten XPN: PAN is not required in the following instances:
(10) days from the conclusion of the Discussion. (RR (M-E-D-E-C)
No. 22-2020)
1. When the finding for any deficiency tax is the
result of Mathematical error in the computation

of the tax appearing on the face of the tax return Q: Mr. Tiaga has been a law-abiding citizen
filed by the taxpayer; or diligently paying his income taxes. On May 5,
2. When the Excise tax due on excisable articles 2014, he was surprised to receive an assessment
has not been paid; or notice from the BIR informing him of a
3. When a Discrepancy has been determined deficiency tax assessment as a result of a
between the tax withheld and the amount mathematical error in the computation of his
actually remitted by the withholding agent; or income tax, as appearing on the face of his
4. When an article locally purchased or imported income tax return for the year 2011, which he
by an Exempt person, such as, but not limited to, filed on April 15, 2012. Mr. Tiaga believes that
vehicles, capital equipment, machineries and there was no such error in the computation of
spare parts, has been sold, traded or transferred his income tax for the year 2011. Based on the
to non-exempt persons (Sec. 228, NIRC); or assessment received by Mr. Tiaga, may he
5. When a taxpayer who opted to claim a refund or already file a protest thereon? (2014 BAR)
tax credit of excess creditable withholding tax
for a taxable period was determined to have A: YES. Mr. Tiaga may consider the assessment
Carried over and automatically applied the notice as a final assessment notice and his right to
same amount claimed against the estimated tax protest within 30 days from receipt may now be
liabilities for the taxable quarter or quarters of exercised by him.
the succeeding taxable year. (Sec. 3.1.2, RR No.
18-2013) When the finding of a deficiency tax is the result of
mathematical error in the computation of the tax
In the above-cited cases, an FLD/FAN shall be issued appearing on the face of the return, a pre-
outright. (2002 BAR) assessment notice shall not be required, hence, the
assessment notice is a final assessment notice. (Sec.
Q: In the investigation of the withholding tax 228, NIRC; RR No. 18-2013)
returns of AZ Medina Security Agency (AZ) for
the taxable years 1997 and 1998, a discrepancy Q: On July 15, 2009, the CIR issued to DEF, Inc. a
between the taxes withheld from its employees Letter Notice (LN) informing it of the
and the amounts actually remitted to the discrepancy found after comparing its tax
government was found. Accordingly, before the returns for Calendar Year (CY) 2007 with the
period of prescription commenced to run, the Reconciliation and Third-Party Matching under
BIR issued an assessment and a demand letter the Tax Reconciliation System. The LN was
calling for the immediate payment of the received and signed by a certain Malou Bohol on
deficiency withholding taxes in the total amount July 24, 2009. Subsequently, the BIR issued a
of P250,000.00. Counsel for AZ protested the follow-up letter dated August 24, 2009. The
assessment for being null and void on the letter was received and signed by a certain
ground that no pre-assessment notice had been Amado Ramos. Due to the inaction of DEF, Inc.,
issued. Is the contention of the counsel tenable? the CIR issued to it, on January 12, 2010, the
(2002 BAR) following: (1) Letter of Authority (LOA) for the
examination of its book of accounts; and other
A: NO. The contention of the counsel is untenable. accounting records and (2) a Notice of Informal
Sec. 228, NIRC expressly provides that no pre- Conference (NIC). On March 29, 2010, the CIR
assessment notice is required when a discrepancy issued a Preliminary Assessment Notice (PAN)
has been determined between the tax withheld and with attached Details of Discrepancies that
the amount actually remitted by the withholding found DEF, Inc. liable for deficiency income tax
agent. Since the amount assessed relates to (IT) and value-added tax (VAT). On July 20,
deficiency withholding taxes, the BIR is correct in 2010, the CIR issued a Final Assessment Notice
issuing the assessment and demand letter calling for (FAN), assessing DEF, Inc. with deficiency VAT
the immediate payment of the deficiency and deficiency IT. On November 28, 2012, the
withholding taxes. Revenue District Officer (RDO) issued a

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Preliminary Collection Letter requesting DEF, Effect of taxpayer’s failure to respond to PAN
Inc. to pay the assessed tax liability within 10
days from notice. On January 23, 2013, the RDO The taxpayer shall be considered in default, in which
issued a Final Notice Before Seizure (FNBS) case, a FLD/FAN shall be issued calling for payment
giving DEF, Inc. the last opportunity to settle its of the taxpayer's deficiency tax liability, inclusive of
tax liability within 10 days from notice. Are the the applicable penalties. (Par. 2, Sec. 3.1.1, RR No. 18-
assessments made against DEF, Inc. for the 2013)
deficiency IT and deficiency VAT are void?
For the purpose of contesting in writing the findings
A: YES. Section 228 of the National Internal Revenue contained in a PAN, the regulations use the term
Code (NIRC) of 1997, as amended, requires the “reply” to distinguish the written objections against
assessment to inform the taxpayer in writing of the a FAN issued by the BIR, where the generic term
law and the facts on which the assessment is made; “protest” or the specific term “request for
otherwise, the assessment shall be void. Section 3 of reconsideration” or “request for reinvestigation” is
RR No. 12- 1999 dated 06 Sep. 1999 highlights the utilized.
due process requirement in Section 228 of the NIRC.
Service of the PAN or the FAN to the taxpayer may The failure to file a reply to PAN will not bar the
be made by registered mail. taxpayer from protesting the FAN because PAN is
not the final assessment which can be protested as
Under Section 3(v), Rule 131 of the Rules of Court, contemplated under the NIRC.
there is a disputable presumption that "a letter duly
directed and mailed was received in the regular FORMAL LETTER OF DEMAND AND
course of the mail." However, the presumption is FINAL ASSESSMENT NOTICE
subject to controversy and direct denial, in which
case the burden is shifted to the party favored by the The FLD or FLD are notices issued to taxpayers who
presumption to establish that the subject mailed fail to respond to the PAN within the prescribed
letter was actually received by the addressee. In period, or those who respond to the PAN without
view of DEF, Inc.'s categorical denial of due receipt merit.
of the PAN and the FAN, the burden was shifted to
the CIR to prove that the mailed assessment notices A final assessment is a notice "to the effect that the
were indeed received by DEF, Inc. or by its amount therein stated is due as tax and a demand
authorized representative. As ruled by the CTA En for payment thereof." This demand for payment
Banc, the CIR's mere presentation of Registry signals the time "when penalties and interests begin
Receipt Nos. 5187 and 2581 was insufficient to to accrue against the taxpayer and enabling the
prove DEF, Inc.'s receipt of the PAN and the FAN. It latter to determine his remedies." Thus, it must be
held that the witnesses for the CIR failed to identify "sent to and received by the taxpayer and must
and authenticate the signatures appearing on the demand payment of the taxes described therein
registry receipts; thus, it cannot be ascertained within a specific period.” (CIR v. Fitness by Design,
whether the signatures appearing in the documents Inc., G.R. No. 215957, 09 Nov. 2016)
were those of DEF, Inc.'s authorized
representatives. (Commissioner of Internal Revenue Issuance of FLD or FAN
v. T Shuttle Services, Inc., G.R. No. 240729, 24 Aug.
2020) The CIR or his duly authorized representative may
issue FLD or FAN:
Period for the taxpayer to respond to PAN via
“Reply” 1. If there is no need to issue a PAN because the
circumstances show that it falls within the
The taxpayer has 15 days from receipt of PAN to file exceptions for the issuance of PAN;
a written reply contesting the proposed assessment. 2. If the taxpayer is in default for failure to
respond to a PAN within a period of 15 days

from the receipt of PAN; or Q: Who issues the FAN?

3. If the CIR or his duly authorized representative
does not agree with the justifications stated by A: It shall be issued by the Commissioner of Internal
the taxpayer in his reply to the PAN. Revenue or his duly authorized representative.
(Domondon, 2014)
The term “duly authorized representative” under
The FLD/FAN calling for payment of the taxpayer's Sec. 6(A) of the NIRC which may authorize
deficiency tax or taxes shall state the facts, the law, examination of taxpayers refers to a Revenue
rules and regulations, or jurisprudence on Regional Director in accordance with Secs. 10 and
which the assessment is based; otherwise, the 13 of the NIRC. The term likewise refers to other tax
assessment shall be void. (RR No. 18-2013) officials with the rank equivalent to a division chief
or higher, pursuant to the CIR’s authority to
The FAN and FLD should always go together. The law delegate powers vested in him under Sec. 7 of the
requires that the factual and/or legal bases of the NIRC. (CIR v. Linde Philippines, Inc., C.T.A. EB Case No.
assessment must be stated, and this requirement is 2194, 2021)
not satisfied by the issuance of FAN alone, a letter of
demand fills up the void and explains to the Q: In what form shall the FAN be and what
taxpayer how the deficiency assessment was should it contain?
arrived at, including the reasons and legal bases for
the assessment. (Mamalateo, 2014) A:
1. In writing; and
Period to issue FLD or FAN 2. Shall state the facts, the law, rules and
regulations, or jurisprudence on which the
If the taxpayer, within 15 days from date of receipt assessment is based, otherwise, the FAN shall
of the PAN, responds that he/it disagrees with the be void. (Sec. 228, NIRC; Sec. 3.1.3, RR No. 18-
findings of deficiency tax or taxes, an FLD/FAN shall 2013)
be issued within 15 days from filing/submission of
the taxpayer’s response, calling for payment of the NOTE: If the FAN is deemed insufficient insofar as
taxpayer's deficiency tax liability, inclusive of the compliance with Section 228 of the NIRC is
applicable penalties. (RR No. 18-2013, emphasis concerned, such insufficiency can be cured if the
supplied) FLD can show the legal and factual bases relied upon
in the issuance of the assessment which the FAN
NOTE: An FLD or FAN issued beyond 15 days from failed to detail.
filing or submission of the taxpayer’s response to
the PAN shall be valid, provided that, it is issued Q: What does the phrase “in writing” under Sec.
within the period of limitation to assess internal 228 mean?
revenue taxes. The non-observance of the 15-day
period, however, shall constitute an administrative A: It does not exclusively mean written words.
infraction and the revenue officers who caused the “Writing” consists of letters, word, numbers, or their
delay shall be subject to administrative sanctions as equivalent, set down by handwriting, typewriting,
provided for by law and pertinent revenue printing, photostating, photographing, magnetic
issuances. (RMO No. 11-2014) impulse, mechanical or electronic recording, or
other form of data compilation. Indubitably, figures
NOTE: Upon receipt of the PAN, the taxpayer has 15 are also “writings” and if the numerical presentation
days to reply. Failure to do so, shall cause the is understandable enough, then there is no reason
issuance of the FLD or FAN. Issuance of the why it should be automatically rejected as
FAN/FLD without waiting for the 15-day period to inadequate compliance with the law. (Sevilla, v. CIR,
reply to PAN is a violation of due process. (CIR vs. CTA Case 6211, 04 Oct. 2004)
Next Mobile, Inc., CTA EB Case No. 1419, 21 Nov.
2016) Q: Is substantial compliance of the notice

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requirement under Section 228 of the NIRC indicate that it is the final decision of the CIR on the
allowed? matter. The CIR must indicate, in a clear and
unequivocal language, whether its action on a
A: YES. The notice requirement under Section 228 disputed assessment constitutes its final
of the NIRC is substantially complied with whenever determination thereon in order for the taxpayer
the taxpayer had been fully informed in writing of concerned to determine when his or her right to
the factual and legal bases of the deficiency taxes appeal to the tax court accrues. Thus, the CIR is now
assessment, which enabled the latter to file an estopped from claiming that it did not intend the
effective protest. FAN to be a final decision. (Allied Banking Corp. v.
CIR, G.R. No. 175097, 05 Feb. 2010)
In the case of Samar I Electric Cooperative v. CIR, the
Court held that although the FAN and demand letter NOTE: An FLD/FAN issued reiterating the
were not accompanied by a written explanation of immediate payment of deficiency taxes and
the legal and factual bases of the assessed deficiency penalties previously made in the PAN is a denial of
taxes, the records showed that CIR responded to the response to the PAN. A final demand letter for
taxpayer’s letter-protest, explaining at length the payment of delinquent taxes may be considered a
factual and legal bases of the deficiency tax decision on a disputed assessment. This includes a
assessments and denying the protest. disputed PAN. So long as the parties are given the
opportunity to explain their side, the requirements
Considering the foregoing exchange of of due process are satisfactorily complied with.
correspondence and documents between the (RMO No. 11-2014)
parties, the requirement of Section 228 was
substantially complied with. Respondent had fully PROTEST
informed petitioner in writing of the factual and
legal bases of the deficiency taxes assessment, It is the act by the taxpayer of questioning the
which enabled the latter to file an “effective” protest. validity of the imposition of the corresponding
Taxpayer’s right to due process was thus not delinquency increments for internal revenue taxes
violated. (Samar-I Electric Corp v. CIR, G.R. No. as shown in the notice of assessment or letter of
193100, 10 Dec. 2014) demand.
Q: Taxpayer duly protested a PAN it received Contents of the Protest

from the BIR. Subsequently, the BIR issued a FAN
to the taxpayer. The demand letter states: “This 1. Nature of the Protest, i.e., if reconsideration or
is our final decision based on investigation. If you reinvestigation;
disagree, you may appeal the final decision 2. Date of assessment notice; and
within 30 days from receipt hereof, otherwise 3. Applicable rules, law, regulations and
said deficiency tax assessment shall become final, jurisprudence.
executory and demandable.” Instead of filing a
protest on the assessment, the taxpayer filed a Otherwise, the protest shall be considered void and
petition for review with the CTA. The BIR filed a without force and effect.
motion to dismiss on the ground that the
taxpayer failed to exhaust administrative Period to File Protest
remedies by filing a protest on the assessment.
Should the motion be granted? Within 30 days from receipt of the FAN.
A: NO. This case is an exception to the rule on *Note the difference of Reply to PAN, which should
exhaustion of administrative remedies, i.e., estoppel be filed within 15 days from receipt thereof.
on the part of BIR. The taxpayer cannot be blamed
for not filing a protest against the FAN since the
language used and the tenor of the demand letter

Failure to File the Protest prescriptive period for

the assessment of the
If the taxpayer failed to file a protest, the assessment tax; and, once the
shall be considered final, executory and assessment had been
demandable and no requests for reinvestigation or reconsidered at the
reconsideration shall be granted. (Sec. 3.1.4 of RR No. taxpayers’ instance,
12-99, as amended) the period for
collection should begin
Form of Protest to run from the date of
the reconsidered or
A protest may be made either through: modified assessment.
As to Submission of Documents
1. Request for Reconsideration; and
The taxpayer is not The taxpayer is
2. Request for Reinvestigation
required to submit required to submit
supporting documents supporting documents
Request for Reconsideration vs. Request for
and the only available within 60 days after
Reinvestigation
remedy is to: the filing of the protest
letter with the BIR.
REQUEST FOR REQUEST FOR
a. Wait for the final Otherwise, the
RECONSIDERATION REINVESTIGATION
decision of the BIR assessment will
As to Grounds representative, become final and
A plea of re-evaluation A plea of re-evaluation executory.
of an assessment on of an assessment on b. Appeal to the
the basis of existing the basis of newly Commissioner of
records without need discovered or Internal Revenue
of additional evidence. additional evidence (CIR), or
It may involve a that a taxpayer intends c. Appeal to the Court
question of fact or of to present in the of Tax Appeals within
law or both. reinvestigation. It may the prescribed
also involve a question period/s.
of fact or of law or both. As to Evidence Required
(Sec. 3.1.4 of RR No. 12-
Limited to the evidence Entails the reception
99, as amended)
already at hand. Hence, and evaluation of
As to Suspension of the Prescriptive Period submission of additional evidence.
Shall not suspend the Shall suspend the additional documents Failure to submit
prescriptive period to prescriptive period to is not required. supporting documents
collect collect (Bank of the within 60 days from
Philippine Islands v. the filing of the protest
Commissioner of letter will make the
Internal Revenue, G.R. assessment final and
No. 139736, 17 Oct. executory.
2005) As to the Approval of the Commissioner
The period between
Can be availed so long BIR Commissioner
request for
as the request is duly must first grant the
reinvestigation and the
indicated in the protest request for
revised assessment
letter. reinvestigation.
should be subtracted
from the total
NOTE: The term "relevant supporting documents"

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are those documents necessary to support the legal all of the assessments null and void. Is the
basis in disputing a tax assessment as determined contention of Avon valid?
by the taxpayer. The BIR can only inform the
taxpayer to submit additional documents. The BIR A: YES. Avon was not fully apprised of the legal and
cannot demand what type of supporting documents factual bases of the assessments issued against it.
should be submitted. Otherwise, a taxpayer will be The Details of Discrepancy attached to the PAN, as
at the mercy of the BIR, which may require the well as the FLD with the FAN, did not even comment
production of documents that a taxpayer cannot or address the defenses and documents submitted
submit. (CIR v. First Express Pawnshop Company, G.R. by Avon. Thus, Avon was left unaware on how the
No. 172045-46, 16 Jun 2009) Commissioner or her authorized representatives
appreciated the explanations or defenses raised in
NOTE: The CIR shall have 180 days to act upon the connection with the assessments. There was clear
protest from the date of filing in case of a request for inaction of the Commissioner at every stage of the
reconsideration; or from the date of submission of proceedings. xxx The Commissioner's total
the relevant supporting documents or from the disregard of due process rendered the identical
lapse of 60 days from filing the request for PAN, FAN, and Collection Letter null and void, and of
reinvestigation. Three scenarios could happen after no force and effect. (CIR v. Avon, G.R. Nos. 201398-
filing a valid protest: the CIR cancels the assessment, 99/G.R. Nos. 201418-19, 03 Oct. 2018)
the CIR denies the protest and issues a Final
Decision on Disputed Assessment (FDDA), or the Q: On October 9, 2007, Transitions Optical
CIR does not act upon it within 180 days. executed a Waiver of the Defense of Prescription
for the assessment of its internal revenue taxes
Final Decision on Disputed Assessment for the year 2004. The prescriptive period for
the assessment was extended to June 20, 2008.
If no protest against the FAN/FLD is filed, or if a This was followed by another Waiver of the
request for reinvestigation is filed but the taxpayer Defense of Prescription dated June 2, 2008
failed to provide relevant supporting documents which extends the prescriptive period to
within 60 days from its filing, or when the protest is November 30, 2008. The CIR issued a FAN and an
expressly denied, an FDDA is issued stating the FLD dated November 28, 2008. However,
facts, law, regulations, rules, jurisprudence from Transitions Optical alleged that the demand for
which the decision was based and that it is the final deficiencies had already prescribed at the time
decision. the FAN was mailed on December 2, 2008. The
CTA ruled in favor of Transitions Optical after
A void FDDA does not render the assessment void. finding that the Waivers are defective and
Clearly, a decision of the CIR on a disputed therefore, void. Is Transitions Optical estopped
assessment differs from the assessment itself. from claiming that the Waivers were invalid,
Hence, the invalidity of the other – unless the law or and that the prescription had set in?
regulations provide otherwise. (Laco, Manuel,
Soriano, 2021) A: YES. Estoppel applies against a taxpayer who did
not only raise at the earliest opportunity its
Q: Avon claims that from the start up to the end representative’s lack of authority to execute two (2)
of the administrative process, the Commissioner waivers of defense of prescription, but was also
ignored all of its protests and submissions to accorded, through these waivers, more time to
contest the deficiency tax assessments. The comply with the audit requirements of the Bureau
Commissioner issued identical Preliminary of Internal Revenue. Transitions Optical repeatedly
Assessment Notice, Final Assessment Notices, failed to comply with CIR’s notices, directing it to
and Collection Letters without considering submit its books of accounts and related records for
Avon's submissions or its partial payment of the examination by the BIR. The former also ignored the
assessments. Avon asserts that it was not latter’s request for an Informal Conference to
accorded a real opportunity to be heard, making discuss other “discrepancies” found in the partial

documents submitted. The Waivers were necessary executory, and demandable.

to give respondent time to fully comply with the BIR
notices for audit examination and to respond to its If the protest or administrative appeal is not acted
Informal Conference request to discuss the upon by the Commissioner within 180 days
discrepancies. Thus, having benefited from the counted from the date of filing of the protest, the
Waivers executed at its instance, Transitions Optical taxpayer may:
is estopped from claiming that they were invalid,
and that prescription had set in. Nonetheless, the tax 1. Appeal to the CTA within 30 days from the
assessment is void because it was served beyond expiration of the 180-day period; or
the supposedly extended period. (CIR v. Transitions 2. Await the final decision of the CIR on the
Philippines Optical, Inc. G.R. No. 227544, 22 Nov. disputed assessment and appeal such final
2017) decision to the CTA within 30 days after the
receipt of a copy of such decision.
APPEAL FROM AN ADMINISTRATIVE DECISION
ON DISPUTED ASSESSMENT NOTE: In case of inaction on protested assessment
within the 180-day period, the options of the
If the taxpayer chooses to protest the FDDA, taxpayer are mutually exclusive and the resort to
however, he may do so administratively or one bars the application of the other. (Sec. 3.1.4 of RR
judicially. No. 12-99, as amended by RR No. 18-13)
Denial or Failure to Act by the Commissioners In a request for reconsideration, the taxpayer hopes
Duly Authorized Representative that the CIR will overturn his own or his authorized
representative’s decision. The taxpayer must
In case of express denial, the taxpayer may either: consider that a request for reconsideration is
indirectly telling the BIR that it failed to fully
1. Appeal to the CTA within 30 days from receipt consider all the circumstances of the case or that the
of the said decision; or BIR committed an error.
2. Elevate his protest through a request for
reconsideration to the Commissioner within 30 A request for reconsideration may be granted or
days from receipt of the decision. denied. If denied, the taxpayer’s only remedy will be
the Courts, an appeal to the CTA.
In case the protest is not acted upon within 180
days from the date of filing of the protest or date of Under RR No. 18-2013, the failure of the taxpayer to
submission by the taxpayer of the required administratively or judicially elevate his protest to
documents, the taxpayer may either: the FDDA will open up a remedy for the government
— to collect the tax. Section 205 provides for civil
1. Appeal to the CTA within 30 days from the remedies for collecting delinquent taxes; Section
expiration of the 180-day period; or 207 provides for several summary remedies, such
2. Await the final decision of the duly authorized as the distraint of the personal property and the levy
representative. of the taxpayer’s real property.
Denial or Failure to Act by the Commissioner If the amount is fully paid, pursuing a request for
reconsideration or filing a case with the CTA are not
If the protest or administrative appeal is denied by viable options under the taxpayer’s current
the Commissioner (note that in administrative circumstances. The taxpayer may pursue a
appeals, the denial came from the Commissioner’s compromise settlement, abatement, or cancellation
authorized representative), he shall issue a FDDA, of tax liability.
and the taxpayer may appeal to the CTA within 30
days from date of receipt of the said decision. Section 204(A) of the Tax Code provides that the CIR
Otherwise, the tax deficiency shall be final, may compromise on the payment of internal

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revenue tax on grounds such as doubtful validity of prescribed and to cancel the assessments
assessment or when the taxpayer shows financial related thereto. Did the CIR timely issue
incapacity to pay the assessed tax. Section 204(B) of assessments against Citytrust for deficiency
the Tax Code also provides that the CIR may abate EWT, WTD, DFT, and WTC pertaining to the
or cancel a tax liability when (1) the tax or any taxable year 1986?
portion thereof appears to be unjustly or
excessively assessed; or (2) the administration and A: NO. The CIR’s right to assess has already
collection costs involved do not justify the collection prescribed. Both the CTA Division and CTA EB
of the amount due. carefully reviewed and examined the records (i.e.,
tax returns for each tax type, waivers of the statutes
However, the CIR has the sole discretion to grant the of limitations, etc.) to precisely ascertain whether
offer of compromise settlement or abatement of the period to assess each tax type has prescribed.
taxes. The CIR’s denial of these remedies is not The court a quo ultimately invalidated the waivers
subject to judicial review. Also, interest on the tax of the statutes of limitations due to the absence of
deficiency continues to run while the application for the CIR's signature and found that only the
compromise settlement or abatement is pending assessments for EWT and DFT have not prescribed.
and should be paid if the application is denied. The Court shall no longer disturb the afore-cited
(Ambatali, 2018) findings. Verily, the 1977 Tax Code, as amended,
allowed the parties to execute an agreement
Q: Through a letter dated May 6, 1991, the CIR waiving the three-year statute of limitation for tax
sent Assessment Notices to Citytrust Banking assessment. However, it is already established that,
Corporation (Citytrust) in connection with its to be valid, waivers of this nature must be in the
deficiency interim revenue taxes for the year form as prescribed by the applicable tax regulations.
1986. The assessments came after Citytrust's That both parties must signify their assent in
execution of three Waivers of the Statute of extending the assessment period is not merely a
Limitations (Waivers) under the National formal requisite under tax rules, but one that is
Internal Revenue Code. (NIRC) dated August 11, essential to the validity of a contract under the Civil
1989, July 12, 1990, and November 8, 1990 Code.
extending the prescriptive period for the CIR to
issue an assessment. Citytrust protested the Furthermore, the Court already ruled that BPI is not
assessments on May 30, 1991 and, again, on estopped from raising questions on the waivers'
February 17, 1992. In the interim, through the validity. That the fundamental defect that
Bureau of lnternal Revenue (BIR) Office of the invalidated the subject waivers were caused by the
Accounting Receivable/Billing Section letter CIR gives more reason to the taxpayer to seek
dated February 5, 1992, the CIR demanded the redress for this inadve1ience. Be that as it may, even
payment of the subject deficiency taxes within if the Court excuses these flaws, the CIR is still
10 days from receipt thereof. barred from collecting the subject taxes from BPI.
(CIR v. BPI, G.R. No. 227049, 16 Sept. 2020)
Meanwhile, on November 4, 2011, BPI received
a separate Warrant of Distraint and/or Levy REQUISITES OF A VALID ASSESSMENT
(November 2011; Warrant), this time in relation
to Citytrust's deficiency EWT, WTD, DFT, and 1. In writing and signed by the BIR;
WTC assessments. Similarly, BPl assailed the 2. Contains the law and the facts on which the
November 2011 Warrant before the CTA assessment is based (Basis must be provided);
through a petition for review (Second CTA 3. Contains a demand for payment within the
Petition) asking the tax court to suspend the prescribed period;
collection of the alleged deficiency taxes, cancel 4. Must be served on and received by the
the November 2011 Warrant, and enjoin the CIR taxpayer.
from further implementing it. It also prayed for
the CTA to declare the assessments as The taxpayers shall be informed in writing of the

law and the facts on which the assessment is made;

otherwise, the assessment shall be void. A:
a. An assessment notice is formal notice to the
Moreover, the regulations provide that the FLD and taxpayer stating that the amount thereon is due
FAN shall be issued by the Commissioner or his duly as a tax and containing a demand for the
authorized representative. payment thereof (CIR v. Pascor Realty and
Development Corp., G.R. No. 128315, 29 June
Q: After examining the books and records of EDS 1999) To be valid, the taxpayer must be
Corporation, the 2004 final assessment notice, informed in writing of the law and the facts on
showing basic tax of P1,000,000 deficiency which assessment is made. (Sec. 228 NIRC)
interest of P400,000 and due date for payment
of April 30, 2007, but without the demand letter, b. I will question the validity of the assessment
was mailed and released by the BIR on April 15, because of the failure to send the demand letter
2007. The registered letter, containing the tax which contains a statement of the law and the
assessment, was received by the EDS facts upon which the assessment is based. If an
Corporation on April 25, 2007. assessment notice is sent without informing the
taxpayer in writing about the law and facts on
a. What is an assessment notice? What are the which the assessment is made, the assessment
requisites of a valid assessment? Explain is void. (Sec. 228, NIRC; Azucena T Reyes v. CIR,
b. As tax lawyer of EDS Corporation, what legal G.R. Nos. 159694 & 163581, 27 Jan. 2006)
defense(s) would you raised against the
assessment? Explain. (2008 BAR)
TAX DELINQUENCY AND TAX DEFICIENCY
DELINQUENCY TAX DEFICIENCY TAX
As to When Liable
(a) The amount by which the tax imposed by law as

(a) Self-assessed tax per return filed by the taxpayer determined by the CIR or his authorized
on the prescribed date was not paid at all or only representative exceeds the amount of tax in the
partially paid; or taxpayer’s return; or
(b) Deficiency tax assessed by the BIR becomes final (b) If there is no amount tax in his return, then the
and executory and the taxpayer has not paid it within amount by which the tax as determined by the CIR or
the period given in the notice of assessment. his authorized representative exceeds the amounts
previously assessed or collected without assessment
as deficiency. (Sec. 56(B), NIRC)
As to Collection
Can immediately be collected through:

Cannot be collected immediately as the taxpayer may
(1) administrative action - the issuance of a warrant
file the protest assessment & there should be a denial
of distraint and levy; and
of such protest by the BIR.
(2) judicial action

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As to the Filing of Civil Action

The filing of a civil action at the ordinary court for
collection during the pendency of protest may be the
The filing of a civil action for the collection of the
subject of a motion to dismiss. In addition to a motion
delinquent tax in the ordinary court is a proper
to dismiss, the taxpayer must file a petition for review
remedy.
with the CTA to toll the running of the prescriptive
period.
As to Penalties
Subject to administrative penalties such as 25% Not subject to the 25% surcharge, although subject to
surcharge, interest, and compromise penalty. interest and compromise penalty.
Illustration: PRESCRIPTIVE PERIOD FOR ASSESSMENT
If a taxpayer computes an income tax due of Basic rules on prescription

₱2,000,000 and pays only P1,000,000 or none at all,
then there is delinquency tax. However, if a 1. When the tax law itself is silent on prescription,
taxpayer computes an income tax due of ₱2,000,000, the tax is imprescriptible;
but the BIR finds out that there are undeclared 2. When no return is required, tax is
income and the correct income tax due should have imprescriptible and tax may be assessed at any
been ₱3,000,000, then there is deficiency tax. time as the prescriptive periods provided in Sec.
203 and 222, NIRC are not applicable. Remedy
A delinquency tax assessment made without the of the taxpayer is to file a return for the
benefit of a complete or partial investigation by an prescriptive period to commence.
authorized revenue officer who has a reason to
believe that the assessment and collection of a NOTE: Limitation on the right of the
deficiency tax will be jeopardized by delay caused by government to assess and collect taxes will not
the taxpayer’s failure to: be presumed in the absence of a clear legislation
to the contrary.
1. Comply with audit and investigation
requirements to present his books of accounts 3. Prescription is a matter of defense, and it must
and/or pertinent records, or be proved or established by the taxpayer
2. Substantiate all or any of the deductions, relying upon it.
exemptions or credits claimed in his return (Sec.
3 (1)(a), RR No. 30-2002) It is incumbent upon a taxpayer who wants to
avail of the defense of prescription to prove that
NOTE: This is issued when the revenue officer finds he indeed submitted a return. If he fails to do so,
himself without enough time to conduct an the conclusion should be that no such return
appropriate or thorough examination in view of the was filed, in which the Government has 10 years
impending expiration of the prescriptive period for within which to make the corresponding
assessment. To prevent the issuance of a jeopardy assessments. (Taligaman Lumber Co., Inc., v. CIR,
assessment, the taxpayer may be required to G.R. No. L-15716, 31 Mar. 1962)
execute a waiver of the statute of limitations.
4. Defense of prescription is waivable, such
defense is not jurisdictional and must be raised
seasonably, otherwise it is deemed waived;
5. Being a remedial measure, it should be

interpreted liberally in order to protect the

taxpayer; and Three (3) important prescriptive periods:
6. If the last day of the period falls on a Saturday, a 1. Period to assess tax;
Sunday or a legal holiday in the place where the 2. Period to collect tax; and
Court sits, the time shall not run until the next 3. Period to file a criminal action. (Mamalateo,
working day. (Sec. 1, Rule 22, ROC) 2014)
PRESCRIPTIVE PERIOD OF ASSESSMENT PRESCRIPTIVE PERIOD OF COLLECTION

Filing of returns before due date
5 years from receipt of FAN by taxpayer;
NOTE: If taxpayer files fraudulent return or did not

3 years from due date
file any return, the BIR may collect without
assessment within 10 years of filing of fraudulent
return or discovery of non-filing
Filing of returns on the due date
3 years from due date 5 years from receipt of FAN by taxpayer
Filing of returns beyond due date
3 years from actual filing 5 years from receipt of FAN by taxpayer
Fraudulent filing
10 years from discovery of bad faith/fraud 5 years from receipt of FAN by taxpayer
Non-filing
10 years from discovery of non-filing 5 years from receipt of FAN by taxpayer
Waiver
Depends on the agreement of the parties provided that the agreement to extend is executed prior to the
expiration of the original period of assessment
Prescriptive periods for making assessments XPN:
GR: The BIR has the right to assess within 3 years 1. False or fraudulent return with intent to evade
from the date of: tax: within 10 years from discovery of falsity or
fraud
1. Actual filing of the return, or 2. Failure to file any return at all: within 10 years
2. From the last date prescribed by law for the from discovery of omission to file a return
filing of such return, whichever is later. 3. Waiver of statute of limitations in writing,
which must be made before the expiration of the
Why “whichever is later”? period of assessment of taxes: period agreed
upon.
This is to benefit the government, so they have more
time to make the assessment on the taxpayer. NOTE: The period agreed upon may be extended by
(Ingles, 2015) subsequent written agreements made before the
period previously agreed upon.

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Q: STI filed its Amended Annual Income Tax waiver should not be accepted by the concerned BIR
Return for fiscal year 2003 on August 15, 2003; office and official unless notarized. Similar to
its Quarterly VAT Returns on July 23, 2002, Standard Chartered Bank, the waivers in this case
October 25, 2002, January 24, 2003, and May 23, did not specify the kind of tax and the amount of tax
2003; and its Bureau of Internal Revenue (BIR) due. There can be no agreement if the kind and
Form for EWT from May 10, 2002 to April 15, amount of the taxes to be assessed or collected were
2003. On May 30, 2006, STI's Sangalang signed a not indicated. Hence, specific information in the
Waiver of the Defense of Prescription Under the waiver is necessary for its validity. Verily,
Statute of Limitations of the NIRC. On June 2, considering the foregoing defects in the waivers
2006, the waiver was accepted by the Large executed by STI, the periods for the CIR to assess or
Taxpayers District Officer of Makati and was collect the alleged deficiency income tax, deficiency
notarized on even date. On December 12, 2006, EWT and deficiency VAT were not extended. The
another waiver was executed extending the assessments subject of this case, which were issued
period to assess and collect. It was also signed by by the BIR beyond the three-year prescriptive, are
Sangalang and accepted by the same officer and therefore considered void and of no legal effect. (CIR
notarized on the same date. A third waiver was v Systems Technology Institute., G.R. No. 220835, 26
executed by the same signatories extending July. 2007)
further the period to June 30, 2007. On June 28,
2007, STI received a Formal Assessment Notice Rationale for Prescriptive Period or Statute of
from the CIR, assessing STI for deficiency income Limitations for Assessments
tax, VAT and EWT for fiscal year 2003, in the
amount of P161M. However, the CIR maintains This is for the benefit of both the government and
that prescription had not set in because the taxpayers. Reasons:
parties validly executed a waiver of statute of
limitations under Section 222 (b) of the NIRC, as a. The government is benefited because the
amended. Are the waivers executed valid? Thus, officers would be obliged to act properly and
prescription has set in against the assessments promptly in making assessments.
for deficiency income tax, deficiency VAT and b. The taxpayers are benefited because after the
deficiency expanded withholding tax? lapse of the period of prescription, they would
have a feeling of security against unscrupulous
A: NO. The last day for the CIR to issue an tax agents who will take advantage of every
assessment on STI's income tax was on August 15, opportunity to molest law-abiding citizens.
2006; while the latest date for the CIR to assess STI c. Without such legal defense, the taxpayers would
of EWT was on April 17, 2006; and the latest date furthermore be under obligation to always keep
for the CIR to assess STI of deficiency VAT for the their books and to keep them open for inspection
four quarters was on May 25, 2006. Clearly, on the subject to harassment by unscrupulous tax
basis of these dates, the final assessment notice agents.
which STI received on June 28, 2007, was issued
beyond the three-year prescriptive period. Thus, for the purpose of safeguarding taxpayers
Furthermore, STI's signatory to the three waivers from any unreasonable examination, investigation
had no notarized written authority from the or assessment, our tax laws provide a statute of
corporation's board of directors. RDAO No. 05-01 limitations in the collection of taxes as well as their
mandates the authorized revenue official to ensure assessments. (Domondon, 2014)
that the waiver is duly accomplished and signed by
the taxpayer or his authorized representative Determining whether prescription to assess had
before affixing his signature to signify acceptance of set in
the same; and in case the authority is delegated by
the taxpayer to a representative, as in this case, the The important date to remember is the date when
concerned revenue official shall see to it that such the demand letter or notice is released or mailed
delegation is in writing and duly notarized. The or sent by the CIR to the taxpayer.

Provided the release was effected before the by the taxpayer. Two types of returns are (a)
prescription sets in, the assessment is deemed made original and (b) amended return. (Mamalateo, 2014)
on time, even if the taxpayer actually receives it
after the prescriptive period. In order that the filing of return may serve as the
starting point of the period of the making of
However, the fact that the assessment notice was assessment, the return must be substantially
mailed before the prescription period sets in must complete as to include the needed details on which
be proved with substantial evidence by the CIR. The the full assessment may be made.
presumption that a letter duly directed and mailed
was received in the regular course of mail cannot be If the taxpayer files an amended return which is
applied if there is no substantial evidence to prove substantially different from the original return, the
that the notice was indeed sent. (Ingles, 2015) period of prescription of the right to issue the
deficiency assessment should be counted from the
Q: GJM filed its Annual Income Tax Return for filing of the amended return and not the original
the taxable year 1999 on April 12, 2000. BIR return. To hold otherwise would pave the way for
sent FAN through registered mail on 14 Apr. taxpayers to evade payment of taxes by simply
2003, well within the 3-year prescriptive period. reporting in their original return heavy losses and
GJM however denies having received any FAN. amending the same after the CIR has lost his
BIR failed to prove that GJM received the FAN. authority to assess the proper tax.
Should the assessment be given due course?
Amendment considered Substantial
A: NO. When an assessment is made within the
prescriptive period, as in the case at bar, receipt by 1. There is under declaration (exceeding 30% of
the taxpayer may or may not be within said period. that declared) of taxable sales, receipts or
But the rule does not dispense with the income; or
requirement that the taxpayer should actually 2. There is overstatement (exceeding 30% of
receive the assessment notice, even beyond the deductions) (Sec. 248 (B), NIRC)
prescriptive period. If the taxpayer denies having
received the assessment from the BIR, it then If the taxpayer files the wrong return, it is as
becomes incumbent upon the latter to prove by though the taxpayer filed no return at all. This is true
competent evidence that such notice was indeed even if all the necessary information was reflected
received by the addressee. in the erroneous return. In situations like this, the
10-year prescriptive period will apply. (Ingles, 2015,
Here, the onus probandi has shifted to the BIR to citing several cases)
show by contrary evidence that GJM indeed
received the assessment in the due course of mail. Computation of the three (3) year period
While it is true that an assessment is made when the
notice is sent within the prescriptive period, the The computation of the three-year period is based
release, mailing, or sending of the same must still be on the Administrative Code, where a "year” shall be
clearly and satisfactorily proved. (CIR v. GJM, G.R. No. understood to be 12 calendar months.
202695, 29 Feb. 2016)
The Administrative Code of 1987 governs the
Return as the starting point of the prescriptive computation of legal periods, being the more recent
period law than the Civil Code which provides that a year is
equivalent to 365 days whether it be a regular year
Tax return refers to the form prescribed by the BIR or a leap year. (CIR v. Primetown Property Group,
showing basic information about the taxpayer and Inc., G.R. No. 162155, 28 Aug. 2007)
the computation of his tax liability, which is
required to be filed within the periods prescribed by Q: A Co., a domestic corporation, filed its 1995
law and used as the basis for payment of tax assess ITR on Apr. 15, 1996 showing a net loss. On Nov.

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Remedial Law
10, 1996, it amended its 1995 ITR to show more 2008 is therefore within the three-year prescriptive
losses. period.
After an investigation, the BIR disallowed Q: Mr. Sebastian is a Filipino seaman employed
certain deductions claimed by A Co., putting A by a Norwegian company which is engaged
Co., in a net income position. As a result, on Aug. exclusively in international shipping. He and his
5, 1999, the BIR issued a deficiency income wife, who manages their business, filed a joint
assessment against A Co. A Co. protested the ITR for 1997 on Mar. 15, 1998. After an audit of
assessment on the ground that it has prescribed. the return, the BIR issued on Apr. 20, 2001 a
Decide. (2002 BAR) deficiency income tax assessment for the sum of
P250,000 inclusive of interest and penalty. For
A: The right of the BIR to assess the tax has not failure of Mr. and Mrs. Sebastian to pay the tax
prescribed. The rule is that internal revenue taxes within the period stated in the notice of
shall be assessed within three years after the last assessment, the BIR issued on Aug. 19, 2001
day prescribed by law for the filing of the return warrants of distraint and levy to enforce
(Sec. 203, NIRC) However, if the return originally collection of the tax.
filed is amended substantially, the counting of the
three-year period starts from the date the If you are the lawyer of Mr. and Mrs. Sebastian,
amended return was filed. (CIR v. Phoenix what possible defenses will you raise in behalf of
Assurance Co., Ltd., G.R. No. L-199727, 20 May 1965) your clients against the action of the BIR in
enforcing collection of the tax? (2002 BAR)
There is a substantial amendment in this case
because a new return was filed declaring more A: I will raise the defense of prescription. The right
losses, which can only be done either (1) in reducing of the BIR to assess prescribes after three years
gross income or (2) in increasing the items of counted from the last day prescribed by law for the
deductions, claimed. filing of the income tax returns when the said return
is filed on time. (Sec. 203, NIRC) The last day for
Q: Mr. Reyes, a Filipino citizen engaged in the filing the 1997 income tax return is April 15, 1998.
real estate business, filed his 2004 ITR on Mar. Since the assessment was issued only on Apr. 20,
30, 2005. On Dec. 30, 2005, he left the 2001, the BIR's right to assess has already
Philippines as an immigrant to join his family in prescribed on April 15, 2001.
Canada. After investigation of said return, the
BIR issued a notice of deficiency income tax Waiver of the Statute of Limitations
assessment on Apr. 15, 2008. Mr. Reyes returned
to the Philippines as a balikbayan on Dec. 8, Section 222 (b) of the NIRC provides that the CIR or
2008. Finding his name to be in the list of her duly authorized representative and the taxpayer
delinquent taxpayers, he filed a protest against or its authorized representative may agree in
the assessment on the ground that he did not writing as to a specific future date within which
receive a notice of assessment and the to assess the taxpayer for internal revenue taxes
assessment had prescribed. Will the protest for a given taxable period, before the expiration of
prosper? (2000 BAR) the period to assess taxes.
A: NO. The assessment has not yet prescribed since The waiver of the Statute of Limitations should not
the BIR has a period of 3 years from the last day be construed as a waiver of the right to invoke the
prescribed by law for the filing of the return. The defense of prescription but rather an agreement
return was filed on March 30, 2005, that is, before between the taxpayer and the BIR to extend the
the last day prescribed by law for its filing, hence the period to a date certain, within which the latter
law considers it as being filed on the last day could still assess or collect taxes due. The waiver
prescribed by law for the filing of the same, which is does not mean that the taxpayer relinquishes the
April 15, 2005. The assessment issued on April 15, right to invoke prescription unequivocally. (BPI v.

CIR, GR No. 139736, October 17 Oct. 2005) year period of prescription should be
indicated;
A waiver of the statute of limitation under the NIRC,
to a certain extent, is a derogation of the taxpayer’s 2. Except for waiver of collection of taxes which
right to security against prolonged and shall indicate the particular taxes assessed, the
unscrupulous investigations and must therefore be waiver need not specify the particular taxes to be
carefully and strictly construed. (Phil. Journalists, assessed nor the amount thereof, and it may
Inc. v. CIR, G.R. No. 162852, 16 Dec. 2004) simply state “all internal revenue taxes”
considering that during the assessment stage,
The CIR cannot validly agree to reduce the the CIR or her duly authorized representative is
prescriptive period to less than that granted by law still in the process of examining and determining
because it would result to the detriment of the State. the tax liability of the taxpayer.
Such reduction diminishes the Government’s
opportunity to collect taxes. (Republic v. Lopez, G.R. 3. Since the taxpayer is the applicant and the
L-18007, 30 Mar. 1967) The taxpayer’s waiver of executor of the extension of the period of
statute of limitation does not cover taxes already limitation for its benefit in order to submit the
prescribed. (Republic v. Lim De Yu, G.R. No. L-17438, required documents and accounting records, the
30 Apr. 1964) taxpayer is charged with the burden of ensuring
that the waivers of statute of limitation are
validly executed by its authorized
Extended Assessment representative. The authority of the taxpayer’s
representative who participated in the conduct
An assessment issued as a result of the waiver of the of audit or investigation shall not be thereafter
prescriptive period is known as an “extended contested to invalidate the waiver.
assessment”, which has a prescriptive period for
collection of five (5) years from the time of 4. The waiver may or may not be notarized. It is
issuance of the assessment. sufficient that the waiver is in writing as
specifically provided by the NIRC.
Guidelines on proper execution of waivers
5. Considering that the waiver is a voluntary act of
1. The waiver may be, but not necessarily, in the the taxpayer, the waiver shall take legal effect
form prescribed by RMO No. 20-90 or RDAO No. and be binding on the taxpayer upon its
05-01. The taxpayer's failure to follow the execution thereof.
aforesaid forms does not invalidate the
executed waiver, for as long as the following are 6. It shall be the duty of the taxpayer to submit its
complied with: duly executed waiver to the CIR or officials
previously designated in existing issuances or
a. The Waiver of the Statute of Limitations the concerned revenue district officer or group
under Section 222 (b) and (d) shall be supervisor as designated in the Letter of
executed before the expiration of the period Authority/Memorandum of Assignment who
to assess or to collect taxes. The date of shall then indicate acceptance by signing the
execution shall be specifically indicated in the same. Such waiver shall be executed and duly
waiver. accepted prior to the expiration of the period to
b. The waiver shall be signed by the taxpayer assess or to collect. The taxpayer shall have the
himself or his duly authorized duty to retain a copy of the accepted waiver.
representative. In the case of a corporation,
the waiver must be signed by any of its 7. Note that there shall only be two (2) material
responsible officials; dates that need to be present on the waiver:
c. The expiry date of the period agreed upon to a. The date of execution of the waiver by the
assess/collect the tax after the regular three- taxpayer or its authorized representative;

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Remedial Law
and any payment based on any assessment against it.

b. The expiry date of the period the taxpayer (RCBC v. CIR, G.R. No. 170257, 07 Sept. 2011)
waives the statute of limitations
NOTE: The period to assess can likewise be
8. Before the expiration of the period set on the suspended under Section 223 of the NIRC. Refer to
previously executed waiver, the period earlier “Suspension of prescriptive periods” for complete
set may be extended by subsequent written discussion.
waiver. (RMO No. 14-2016)
Q: In 1993, the BIR issued against respondent
NOTE: However, in the case of Commissioner of assessment notice for deficiency income tax for
Internal Revenue v. La Flor Dela Isabela, Inc., the 1989. A waiver of the defense of prescription
Supreme Court reiterated its ruling in the case of was executed but it was not signed by the
Commissioner of Internal Revenue v. Systems Commissioner or any of his authorized
Technology Institute, Inc. (G.R. No. 220835, 26 July representatives and did not state the date of
2017), that waivers extending the prescriptive period acceptance. Has the right to collect of the
of tax assessments must be compliant with RMO No. Commissioner prescribed?
20-90 and must indicate the nature and amount of
the tax due. (G.R. No. 211289, 14 Jan. 2019) A: YES. The Court held that the Commissioner’s
right to collect has prescribed. The period to assess
Effect of failure to conform to the requirements and collect deficiency taxes may be extended only
of waiver of the statute of limitations upon a written agreement between the
Commissioner and the taxpayer prior to the
It is invalid and ineffective to extend the expiration of the three-year prescribed period. The
prescriptive period to assess taxes. (CIR v. Next BIR cannot claim the benefits of extending the
Mobile Inc., G.R. No. 212825, 07 Dec. 2015) period when it was the BIR’s inaction which is the
proximate cause of the defects of the waiver. (CIR v.
Taxpayer estopped from questioning validity of The Stanley Works Sales (Phils.), Incorporated, G.R.
waivers No. 187589, 03 Dec. 2014)
In case a taxpayer executed five waivers and Q: What is the effect of the execution by a
delivered them to CIR, one after the other and taxpayer of a "waiver of the statute of
allowed the latter to rely on them and did not raise limitations" on his defense of prescription?
any objection against their validity until he was (2010 BAR)
assessed, said taxpayer is estopped from
questioning the validity of its waivers. The A: The waiver of the statute of limitation executed
application of estoppel is necessary to prevent the by a taxpayer is not a waiver of the right to
undue injury that the government would suffer invoke the defense of prescription. The waiver of
because of the cancellation of assessment of the statute of limitation is merely an agreement
taxpayer’s tax liabilities. (CIR v. Next Mobile Inc., G.R. in writing between the taxpayer and the BIR that
No. 212825, 07 Dec. 2015) the period to assess and collect taxes due is
extended to a date certain. If prescription has
Taxpayer is also estopped from questioning the already set in at the time of the execution of the
waiver if it had impliedly admitted the validity of the waiver is invalid, the taxpayer can still raise
said waivers. Had it believed that the waiver was prescription as a defense. (Phil. Journalists Inc., v.
invalid and that the period to assess had effective CIR, G.R. No. 162852, 16 Dec. 2004)
prescribed, the taxpayer could have refused to make

DISTINGUISH: FALSE RETURNS, FRAUDULENT RETURNS, AND NON-FILING OF RETURNS
False Return Fraudulent Returns Failure to File a Return
Contains wrong information due to

Intentional and deceitful with the Omission to file a return in the date
mistake, carelessness or ignorance
sole aim of evading the correct tax prescribed by law
(Aznar v. CTA, G.R. No. L-20569, 23
due
Aug. 1974)
Deviation from the truth, whether Intentional or deceitful entry with

Omission can be intentional or not
intentional or not intent to evade the taxes due.
Filing a fraudulent return will

The mere omission is already a
make the taxpayer liable for the
violation regardless of the
crime of moral turpitude as it
Does not make the taxpayer fraudulent intent or willfulness of
entails willfulness and fraudulent
criminally liable the individual (CIR vs. Bank of
intent on the part of the individual.
Commerce, CTA EB Case No. 654, 14
(Republic v. Marcos II, G.R. Nos.
Mar. 2011)
130371 & 130855, 04 Aug. 2009)
Not subject to 50% penalty Not subject to 50% penalty

Subject to 50% penalty surcharge
surcharge surcharge
The tax may be assessed, or a proceeding in court for the collection of such tax may be begun without
assessment, at any time within ten years after the discovery of the falsity, fraud or omission.

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Remedial Law
f
:
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assessment 15 days from
receipt ofpAN
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15 days from Reply
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FLD/FAN

2022 GOLDEN NOTES
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I \ from receipt
.,. \ ...., .,,1

Remedial Law
Fraud not presumed for neglect to file required Negligence, whether slight or gross, is not
Return equivalent to fraud with intent to evade the tax
contemplated by law. (Ingles, 2015)
Fraud is a question of fact and the circumstances
constituting fraud must be alleged and proved in Just because the 10-year period applies, it doesn’t
the court. Fraud is never lightly to be presumed necessarily mean that the taxpayer will be penalized
because it is a serious charge. Hence, if fraud is not with the 50% surcharge. When a taxpayer files a
proven, the Government cannot use the 10-year false return and not a fraudulent one, the 10-year
period to make the assessment. (CIR v. Ayala period applies but the 50% surcharge will not.
Securities Corporation, G.R. No. L-29485, 31 Mar. (Aznar v. CTA, G.R. No. L-20569, 23 Aug. 1974)
1976) Fraud must be established.
Q: Danilo, who is engaged in the trading
Claiming fictitious expenses as deductions is a proof business, entrusted to his accountant the
of falsity or fraud in the income tax return. (Tan preparation of his income tax return and the
Guan v. CTA, G.R. L-23676, 27 Apr. 1967) payment of the tax due. The accountant filed a
falsified tax return by under declaring the sales
An honest mistake as to the valuation of the and overstating the expense deductions by
property cannot be indicative of fraud. (Republic v. Danilo. Is Danilo liable for the deficiency tax and
Heirs of Jalandoni, G.R. No. L-18384, 20 Sept. 1965) the penalties thereon? What is the liability, if
any, of the accountant? Discuss. (2005 BAR)
Q: What constitutes prima facie evidence of a
false or fraudulent return to justify the A: Danilo is liable for the deficiency tax as well as for
imposition of a 50% surcharge on the deficiency the deficiency interest. He should not be held liable
tax due from a taxpayer? Explain. (2002 BAR) for the fraud penalty because the accountant acted
beyond the limits of his authority. There is no
A: There is a prima facie evidence of false or showing in the problem that Danilo signed the
fraudulent return when the taxpayer substantially falsified return or that it was prepared under his
underdeclared his taxable sales, receipts or income, direction. On the other hand, the accountant may be
or substantially overstated his deductions. The held criminally liable for violation of the NIRC when
taxpayer’s failure to report sales, receipts or income he falsified the tax return by under declaring the
in an amount exceeding 30% of that declared per sale and overstating the expense deductions. If
return, and a claim of deduction in an amount Danny's accountant is a Certified Public Accountant,
exceeding 30% of actual deduction shall render the his certificate as a CPA shall automatically be
taxpayer liable for substantial under declaration revoked or cancelled upon conviction.
and over declaration, respectively, and will justify
the imposition of the 50% surcharge on the Suspension of Statute of Limitations
deficiency tax due from the taxpayer. (Sec. 248,
NIRC) Grounds for suspension of the prescriptive period
for both the power to assess and the power to
Importance of distinguishing between a “False collect: (L-O-W-P-A-R-A)
Return” and a “Fraudulent Return”
1. When taxpayer cannot be Located in the
The two returns are different but have the same address given by him in the return.
prescriptive periods to be assessed, which is 10-
years. The importance in distinguishing the two lies XPN: He informs the CIR of any change in his
in the application of the penalty surcharge. address thru a written notice to the BIR.
Actual fraud, not constructive fraud, is subject to 2. When the taxpayer is Out of the Philippines.
50% penalty surcharge. For the surcharge to apply,
it must be intentional fraud. 3. When the Warrant of distraint and levy is duly

served upon the taxpayer, his authorized Q: Do the provisions of the Civil Code on
representative or a member of his household suspension of the prescriptive period by
with sufficient discretion and no property is extrajudicial demand suspend the running
located. period of prescription of actions in tax collection
cases?
Only period to collect is suspended.
A: NO. The provisions of the NIRC being a special
4. Where the CIR is prohibited from making the law take precedence over the provisions of the Civil
assessment or beginning distraint or levy or a Code, a general law. Furthermore, the provisions of
proceeding in court for 60 days thereafter, such the NIRC were crafted to ensure expeditious
as where there is a Pending petition for review collection of tax money to ensure the continuous
in the CTA from the decision on the protested delivery of government services.
assessment. (Republic v. Ker & Co., GR L-21609,
29 Sep. 1966) TAXPAYER’S REMEDIES
5. Where CIR and the taxpayer Agreed in writing Remedies Before Payment
for the extension of the assessment, the tax may
be assessed within the period so agreed upon. 1. Administrative remedies
(Waiver) a. Protest of Assessment
i. Reconsideration
6. When the taxpayer Requests for reinvestigation ii. Reinvestigation
which is granted by the Commissioner. b. Compromise
c. Abatement
Only the period to collect is suspended because 2. Judicial Remedies
assessment has been done at this point. (Ingles,
2015) Remedies After Payment
The request must be granted by the CIR. A 1. Administrative remedies

request for reconsideration alone does not a. Tax refund
suspend the period to collect. b. Tax credit
2. Judicial remedies
7. When there is an Answer filed by the BIR to the
petition for review in the CTA. (Hermanos v. CIR, ADMINISTRATIVE REMEDIES
GR. No. L-24972, 29 Sept. 1969) where the court
justified this by saying that in the answer filed Guidelines that must be observed with respect
by the BIR, it prayed for the collection of taxes. to administrative remedies
When Commissioner is prohibited from making

GOVERNMENT TAXPAYER
the assessment or collection of taxes in a
proceeding in court If express
Must observe the Must observe the
When in the opinion of the CTA, the collection by the legal parameters set doctrine of exhaustion of
BIR may jeopardize the interest of the Government forth in the law (e.g., administrative remedies.
and/or the taxpayer, the Court in any stage of the procedure for Thus, before the
proceeding may suspend the said collection and distraint of personal taxpayer may question
require the taxpayer either to deposit the amount property (Sec. 207 an assessment before
claimed or to file a surety bond for not more than (A), NIRC), for levy on the CTA, he must first file
double the amount with the Court. (Sec. 11, R.A. No. real property (Sec. an administrative
1125) 207 B) and protest before the BIR.

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Remedial Law
enforcement of tax (Same is true with claims h. Statements of facts or law in support of the
lien. (Sec. 219) for refunds) Protest; and
i. Documentary evidence as it may deem
If implied
necessary and relevant to support its
Both may avail of the usual remedies for
Protest to be submitted 60 days from the
convenience and expediency.
filing thereof.
PROTESTING AN ASSESSMENT Protested Assessment is the same as disputed

Assessment.
Administrative Protest
Effect of a Protest against an Assessment
The taxpayer or its authorized representative or tax
agent may protest administratively against the Prescriptive period provided by law to make
aforesaid FLD/FAN within thirty (30) days from collection by distraint or levy or by a proceeding in
date of receipt thereof. court is interrupted once a taxpayer protests the
Assessment and requests for its cancellation.
Administrative Protest is the act by the taxpayer of
questioning the validity of the imposition of the Period to file Protest
corresponding delinquency increments for internal
revenue taxes as shown in the notice of assessment The taxpayer or its authorized representative or tax
and letter of demand. agent may protest administratively against the
FLD/FAN within thirty (30) days from date of
Requisites of a Protest receipt thereof.
1. Must be in writing; KINDS OF PROTEST – REQUEST FOR

2. Addressed to the CIR or his duly authorized RECONSIDERATION OR REINVESTIGATION
representative;
3. State the facts, applicable law, rules and Form, content and validity of Protest
regulations or jurisprudence on which the
Protest is based otherwise the protest would be The taxpayer protesting an Assessment may file a
void; and written request for reconsideration or
reinvestigation defined as follows:
4. Must contain the following:
1. Request for Reconsideration— refers to a plea
a. Name of the taxpayer and address for the of re-evaluation of an Assessment on the basis of
immediate past 3 taxable years; existing records without need of additional
b. Nature of the request, specifying the newly evidence. It may involve both a question of fact
discovered evidence to be presented; or of law or both.; or
c. Taxable periods covered by the 2. Request for Reinvestigation— refers to a plea
assessment; of re-evaluation of an Assessment on the basis of
d. Amount and kind of tax involved and the newly discovered or additional evidence that a
assessment notice number; taxpayer intends to present in the
e. Date of receipt of the assessment notice or Reinvestigation. It may also involve a question of
letter of demand; fact or of law or both.
f. Itemized statement of the finding to which
the taxpayer agrees (if any) as basis for the The taxpayer shall state in his Protest:
computation of the tax due, which must be
paid upon filing of the Protest; 1. The nature of Protest whether Reconsideration
g. Itemized schedule of the adjustments to or Reinvestigation, specifying newly discovered
which the taxpayer does not agree; or additional evidence he intends to present if it

is a Request for Reinvestigation,; issue or issues shall become final, executory and
2. Date of the Assessment Notice; and demandable; and the taxpayer shall be required
3. The applicable law, rules and regulations, or to pay the deficiency tax or taxes attributable
jurisprudence on which his protest is based, thereto, in which case, a collection letter shall be
otherwise, his protest shall be considered void issued to the taxpayer calling for payment of the
and without force and effect. said deficiency tax or taxes, inclusive of the
applicable surcharge and/or interest.
REQUEST FOR REQUEST FOR
RECONSIDERATION REINVESTIGATION 2. If there are several issues involved in the
As to Basis disputed assessment and the taxpayer fails to
state the facts, the applicable law, rules and
A claim for re- A claim for re-
regulations, or jurisprudence in support of his
evaluation of the evaluation of the
Protest against some of the several issues on
assessment based on assessment based on
which the assessment is based, the same shall be
existing records newly discovered or
considered undisputed issue or issues, in which
without need of additional evidence.
case, the Assessment attributable thereto shall
additional evidence.
become final, executory and demandable; and
As to Issues involved the taxpayer shall be required to pay the
It may involve a It may also involve a deficiency tax or taxes attributable thereto and a
question of fact or law question of fact or law collection letter shall be issued to the taxpayer
or both. or both. calling for payment of the said deficiency tax,
As to effect on tolling Statute of inclusive of the applicable surcharge and/or
Limitations interest.
It does not toll the It tolls the statute of
statute of limitations. limitations. Q: A taxpayer receives two final assessments,
one for Net Income Tax (NIT) and one for VAT. If
NOTE: A motion for reconsideration of the denial of the taxpayer would only like to protest the one
the Administrative Protest administrative protest for NIT and not the one for VAT, what should he
does not toll the 30-day period to appeal to the CTA. do to file a protest for the NIT?
(Fishwealth Canning Corporation v. CIR, G.R. No.
179343, 21 Jan. 2010) A: The taxpayer should first pay the tax due under
the VAT, where he does not intend to file a Protest.
There is a distinction between a Request for
Reconsideration and a Request for Reinvestigation. NOTE: This is not payment under protest for this is
A reinvestigation which entails the reception and neither a tax under the TCC nor a Real Property Tax.
evaluation of additional evidence will take more (RR No. 12-1999)
time than a reconsideration of a Tax Assessment,
which will be limited to the evidence already at Submission of supporting documents
hand; this justifies why the reinvestigation can
suspend the running of the statute of limitations on For requests for reinvestigation, the taxpayer shall
collection of the assessed tax, while the submit all relevant supporting documents in
reconsideration cannot. (BPI v. CIR, G.R. No. 181836, support of his protest within sixty (60) days from
9 July 2014) date of filing of his letter of protest. Otherwise, the
assessment shall become final.
Protest against validity of some of the issues
The BIR can only inform the taxpayer to submit
1. If there are several issues involved in the FLD or additional documents. The BIR cannot demand
FAN but the taxpayer only disputes or protests what type of supporting documents should be
against the validity of some of the issues raised, submitted. Otherwise, a taxpayer will be at the
the assessment attributable to the undisputed mercy of the BIR, which may require the production

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of documents that a taxpayer cannot submit. (CIR vs. 180 days from the filing of Administrative
First Express Pawnshop Co., Inc., G.R. Nos. 172045-46, Appeal
16 June 2009)
Administrative appeal – Request for
The Assessment shall become final Reconsideration filed with the CIR to
elevate the denial made by his duly
The failure of the taxpayer who requested for a authorized representative
reinvestigation to submit all relevant supporting
documents within the 60-day period shall render Decision on the Protest filed
the FLD/FAN “final” by operation of law. The
taxpayer shall be barred from disputing the 1. Direct grant or denial of protest
correctness of the FLD/FAN by the introduction of
newly discovered or additional evidence because Final Decision on a Disputed Assessment (FDDA)
he/it is deemed to have lost the chance to present
evidence. The BIR shall then deny the request for The decision of the Commissioner or his duly
reinvestigation through the issuance of an FDDA. authorized representative shall state:
NOTE: The sixty (60)-day period for the submission a. The facts, the applicable law, rules and
of all relevant supporting documents shall not apply regulations, or jurisprudence on which
to requests for reconsideration. such decision is based, otherwise, the
decision shall be void, and
Effect of failure to file Protest b. That the same is his final decision.
If the taxpayer fails to file a valid protest against the 2. Indirect denial of protest
FLD/FAN within thirty (30) days from date of
receipt thereof, the Assessment shall become final, a. Formal and final letter of demand from the
executory and demandable. No request for BIR to the taxpayer
reconsideration or reinvestigation shall be granted b. Civil collection can also be considered as
on tax assessments that have already become final, denial of protest of assessment.
executory, and demandable c. Filing of criminal action against the
taxpayer
ACTION OF THE COMMISSIONER d. Issuance of warrant of distraint and levy to
ON THE PROTEST FILED enforce collection of deficiency assessment
is outright denial of the request for
Period to file Protest reconsideration. (Hilado v. CIR, CTA EB Case
1256, 25 Feb. 1964)
Period to act upon or decide on the Protest filed
3. Inaction by the CIR or his duly authorized
1. By the duly authorized representative representative
a. Request for Investigation– within 180 days Q: Bureau of Internal Revenue issued a
from submission of relevant documents Preliminary Assessment Notice which
b. Request for Reconsideration - within 180 represented deficiency income tax and value-
days from filing of protest added tax, inclusive of interest of V.Y. Domingo.
V.Y. Domingo thereafter filed a Request for Re-
2. By CIR evaluation or Re-investigation and
Reconsideration. However, V.Y. Domingo then
a. In case of Protest– within 180 days from received a Preliminary Collection Letter (PCL)
filing of protest from the Revenue District Office (RDO)
b. In case of Administrative Appeal - within informing it of the existence of two Assessment

Notice for collection of its tax liabilities. Upon Commissioner of Internal Revenue. Roca
receipt of the requested copies of the notices, Security is arguing that the Final Assessment
V.Y. Domingo filed a Petition for Review praying Notice is violative of its right to due process. Is
that Assessment Notices and the PCL be declared the contention of Roca correct?
null and void for allegedly having been issued
beyond the prescriptive period for assessment A: YES. The Final Assessment Notice issued by the
and collection of internal revenue taxes. CIR is void as it violates the taxpayer’s right to due
process. Section 228 of the National Internal
The CIR filed a Motion to Dismiss the petition, Revenue Code gives the taxpayer being assessed a
arguing that it is neither the assessment nor the period of 60 days from the date of filing a protest
formal letter of demand that is appealable to the assailing the Preliminary Assessment Notice within
CTA but the decision of the CIR on a disputed which to submit the relevant supporting
assessment. Furthermore, CIR argued that there documents. In this case, the respondent filed its
was no disputed assessment to speak of, and protest on April 18, 2013 and still had 60 days from
that the CTA had no jurisdiction. Is the CIR’s that date or until June 17, 2013 to present the
contention correct? documents. (Commissioner of Internal Revenue v.
Roca Security and Investigation Agency, Inc., G.R. No.
A: NO. The CTA, being a court of special jurisdiction, 241338, 10 Apr. 2019)
can take cognizance only of matters that are clearly
within its jurisdiction. Under the law, it is clear that Q: On January 6, 2003, Bureau of Internal
a protesting taxpayer like V.Y. Domingo has only Revenue (BIR) issued Letter of Authority (LOA)
three options to dispute an assessment: to petitioner Philippine Dream Co., Inc. (PDCI)
for examination of its financial records for the
1. if the protest is wholly or partially denied by the following alleged tax deficiencies. Under
CIR or his authorized representative, then the Memorandum dated May 30, 2003, the
taxpayer may appeal to the CTA within 30 days corresponding investigation was not completed.
from receipt of the whole or partial denial of the On December 19, 2005, a Preliminary
protest; Assessment Notice (PAN) was issued to PDCI for
its supposed VAT and EWT deficiencies for
2. if the protest is wholly or partially denied by the taxable year 2002. PDCI protested. By Letter
CIR's authorized representative, then the dated March 24, 2006, the protest was denied.
taxpayer may appeal to the CIR within 30 days On the VAT assessment, it was firmly ruled that
from receipt of the whole or partial denial of the PDCI had already ceased its operations as shown
protest; and in its tax returns filed from 2002 to 2005.
3. if the CIR or his authorized representative failed This finding was bolstered by the report of the
to act upon the protest within 180 days from Maritime Industry Authority (MARINA) that
submission of the required supporting PDCI’s operations had already ceased as of
documents, then the taxpayer may appeal to the August 30, 2003. In view thereof, PDCI’s assets
CTA within 30 days from the lapse of the 180- were deemed sold and subjected to VAT. As for
day period. (Commissioner of Internal Revenue v. the EWT assessment, PDCI failed to prove that it
V.Y. Domingo Jewellers, Inc., G.R. No. 221780, 25 remitted withholding taxes on rental payments
Mar. 2019) made.
Q: The Court previously issued a resolution for Consequently, Formal Letter of Demand and
G.R. No. 241338, resolving to deny the petition Assessment Notices dated March 31, 2006 were
for failure to sufficiently show that the Court of issued to PDCI for payment of the following
Tax Appeals En Banc committed any reversible deficiency taxes, inclusive of interests and
error with regards to its ruling pertaining to the surcharges, for taxable year 2002. PDCI received
Final Assessment Notice issued by the the notices on April 10, 2006. On May 10, 2006,

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PDCI interposed its protest against the VAT on the protest on or before November 6, 2006. Thus,
assessment. It, nonetheless, signified its petitioner had thirty days from November 6, 2006
willingness to pay its tax liabilities, and on this or until December 6, 2006 within which to appeal
score, prayed that the penalties be waived. On respondent’s inaction before this Court. However,
May 18, 2006, it paid the EWT assessment but records prove that no appeal was filed before this
not in full. On November 22, 2006, Preliminary Court on or before December 6, 2006. The failure of
Collection Letter was issued on PDCI’s EWT and petitioner to appeal the inaction on time rendered
VAT liabilities. On January 4, 2007, PDCI the assessment final, executory, demandable, and
received a Final Notice Before Seizure giving it incontestable. (Philippine Dream Company, Inc. v.
ten (10) days from notice to settle its tax CIR, G.R. No. 216044, 27 Aug. 2020)
liabilities, otherwise, a warrant of distraint
and/or levy and garnishment shall be issued to Remedies of the taxpayer in case of denial or
enforce collection. On February 21, 2007, PDCI inaction of the Commissioner
was served a Warrant of Distraint and/or Levy
for its failure to pay its purported tax A. By the CIR’s duly authorized representative
deficiencies. On October 31, 2007, PDCI initiated
a petition before the Court of Tax Appeals 1. If the Protest is denied, in whole or in part, the
seeking to nullify the Final Notice Before taxpayer may either:
Seizure, Warrant of Distraint and Levy, and the
auction sale, with prayer for restraining order to a. appeal to the CTA within 30 days from date
prevent CIR from taking possession of MV of receipt of the said decision; or
Philippine Dream and turning it over to the b. elevate his Protest through Request for
winning bidder. Reconsideration to the CIR within 30 days
from date of receipt of the said decision.
Did PDCI timely file its appeal to the CTA?
No Request for Reinvestigation shall be allowed
A: NO. Section 228 of the Tax Code provides the in administrative appeal and only issues raised
taxpayer’s remedy to dispute a tax assessment, viz.: in the decision of the CIR’s duly authorized
“Appeals within thirty (30) days from receipt of the representative shall be entertained by the CIR.
said decision, or from the lapse of the one hundred
eighty (180)-day period; otherwise, the decision 2. If the Protest is not acted upon, the taxpayer
shall become final, executory and demandable.” As may either:
found by the CTA-second Division, PDCI mistakenly
computed the period of appeal. Having chosen the a. appeal to the CTA within 30 days after the
remedy of appeal against the CIR’s supposed expiration of the 180-day period; or
inaction on its protest, PDCI should have reckoned b. await the final decision of the CIR’s duly
its thirty-day period for appeal from the lapse of one authorized representative on the disputed
hundred eighty (180) days from the time it filed its Assessment.
protest against the Final Letter of Demand and
Assessment Notice. Thus, the petition should have NOTE: Items 1&2 are mutually exclusive. The
been filed on December 6, 2006, and not on October exercise of one option bars the other.
31, 2007.
B. By the CIR
Since petitioner did not submit additional relevant
documents in support of its protest, the 180-day 1. If the Protest or administrative appeal, as the
period within which respondent should act on the case may be, is denied, in whole or in part, the
protest should be reckoned from the filing of taxpayer may appeal to the CTA within 30 days
petitioner’s protest on May 10, 2006. Accordingly, from date of receipt of the said decision.
respondent had until November 6, 2006 within Otherwise, the assessment shall become final,
which to act on the protest. Respondent failed to act executory and demandable.

A motion for reconsideration of the CIR’s denial in connection with the PAN and FLD/FAN, which
of the protest or administrative appeal, as the had an attachment of the details of
case may be, shall not toll the 30-day period to discrepancies. Hence, the CIR concludes that
appeal to the CTA. Liquigaz was sufficiently informed in writing of
the factual bases of the assessment. Is the CIR
2. If the Protest or administrative appeal is not correct?
acted upon, the taxpayer may either:
A: NO. It is undisputed that the FDDA merely
a. Appeal to the CTA within 30 days from after showed Liquigaz’ tax liabilities without any details
the expiration of the 180-day period; or on the specific transactions which gave rise to its
b. Await the final decision of the CIR on the supposed tax deficiencies. While it provided for the
disputed assessment and appeal such final legal bases of the assessment, it fell short of
decision to the CTA within 30 days after the informing Liquigaz of the factual bases thereof. The
receipt of a copy of such decision. CIR erred in claiming that Liquigaz was informed of
the factual bases of the assessment because the
NOTE: Items 1&2 are mutually exclusive. The FDDA made reference to the PAN and FAN/FLD,
exercise of one option bars the other. which were accompanied by details of the alleged
discrepancies.
In case of inaction on protested Assessment within
the 180-day period, the option of the taxpayer is to The rules specifically require that the decision of the
either: CIR or his duly authorized representative on a
disputed assessment shall state the facts, law and
1. File a petition for review with the CTA within 30 rules and regulations, or jurisprudence on which the
days after the expiration of the 180-day period; decision is based. Failure to do so would
or invalidate the FDDA. To rule otherwise would
2. Await the final decision of the Commissioner or tolerate abuse and prejudice. Taxpayers will be
his duly authorized representative on the unable to file an intelligent appeal before the CTA as
disputed assessment and appeal such final they would be unaware on how the CIR or his
decision to the CTA within 30 days after the authorized representative appreciated the defense
receipt of a copy of such decision. raised in connection with the assessment. (CIR v.
Liquigaz Philippines Corp., G.R. No. 215534, 18 Apr.
These options are mutually exclusive and the 2016)
resort to one bars the application of the other.
Q: What is the effect of a void FDDA?
When the law provided for the remedy to appeal the
inaction of the CIR, it did not intend to limit it to a A: FDDA that does not inform the taxpayer in
single remedy of filing an appeal after the lapse of writing of the facts and law on which it is based
180-day prescribed period. When a taxpayer renders the decision void. The written notice
protested an Assessment, he naturally expects the requirement for both the FLD and the FAN is in
CIR to decide either positively or negatively. A observance of due process — to afford the taxpayer
taxpayer cannot be prejudiced if he chooses to wait adequate opportunity to file a protest on the
for the final decision of the CIR on the protested assessment and thereafter file an appeal in case of
Assessment. (Lascona Land Co., Inc. v. CIR, G.R. No. an adverse decision.
171251, 05 Mar. 2012)
However, a void FDDA does not ipso facto render the
Q: The FDDA issued by the CIR to Liquigaz assessment void. The assessment remains valid
merely contained a table of Liquigaz’s supposed notwithstanding the nullity of the FDDA because the
tax liabilities, without providing any details. assessment itself differs from a decision on the
The CIR explains that the FDDA still complied disputed assessment. An FDDA that does not inform
with the requirements of the law as it was issued the taxpayer in writing of the facts and law on which

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it is based renders the decision void. Therefore, it is 1. If the protest is wholly or partially denied by the
as if there was no decision rendered by the CIR. It is CIR or his authorized representative, then the
tantamount to a denial by inaction by the CIR, which taxpayer may appeal to the CTA within 30 days
may still be appealed before the CTA and the from receipt of the whole or partial denial of the
assessment evaluated on the basis of the available protest.
evidence and documents. (CIR v. Liquigaz 2. If the protest is wholly or partially denied by the
Philippines Corp., G.R. No. 215534, 18 Apr. 2016) CIR's authorized representative, then the
taxpayer may appeal to the CIR within 30 days
Q: A taxpayer received a tax deficiency from receipt of the whole or partial denial of the
assessment of P1.2 million from the BIR protest.
demanding payment within 10 days, otherwise, 3. If the CIR or his authorized representative failed
it would collect through summary remedies. The to act upon the protest within 180 days from
taxpayer requested for a reconsideration submission of the required supporting
stating the grounds therefor. Instead of documents, then the taxpayer may appeal to the
resolving the request for reconsideration, the CTA within 30 days from the lapse of the 180-
BIR sent a Final Notice Before Seizure to the day period.
taxpayer. May this action of the Commissioner of
Internal Revenue be deemed a denial of the To further clarify the three options: A whole or
request for reconsideration of the taxpayer to partial denial by the CIR’s representative may be
entitle him to appeal to the Court of Tax appealed to the CIR or the CTA. A whole or partial
Appeals? Decide with reasons. (2005 BAR) denial by the CIR may be appealed to the CTA. The
CIR or the CTA’s authorized representative’s failure
A: YES. The final notice before seizure was in effect to act may be appealed to the CTA. There is no
a denial of the taxpayer's request for mention of an appeal to the CIR from the failure to
reconsideration, not only was the notice the only act by the CIR's authorized representative.
response received, its nature, content, and tenor
support the theory that it was the BIR's final act PAGCOR did not wait for the RD or the CIR’s decision
regarding the request for reconsideration. (CIR v. on its protest. PAGCOR made separate and
Isabela Cultural Corporation, G.R. No. 135210, 11 July successive filings before the RD and the CIR before
2001) it filed its petition with the CTA. PAGCOR rendered
the second option moot when it formulated its own
Q: PAGCOR received a FAN on January 17, 2008 rule and “elevated an appeal” to the CIR without any
for payment of deficiency Fringe Benefit Tax. 7 decision from the RD. The third option states that
days later, it filed a protest to the FAN addressed the remedy for failure to act by the CIR or his
to RD Misajon of Revenue Region No. 6 of the authorized representative is to file an appeal to the
BIR. On August 14, 2008, PAGCOR elevated its CTA within 30 days after the lapse of 180 days from
protest to CIR, there being no action taken the submission of the required supporting
thereon as of that date. On March 11, 2009, documents. PAGCOR clearly failed to do this. If we
PAGCOR filed a Petition for Review before the consider, for the sake of argument, PAGCOR’s
CTA alleging respondent’s inaction in its protest. submission before the CIR as a separate protest and
CTA Division dismissed the petition for being not as an appeal, then such protest should be denied
filed out of time. CTA En banc affirmed CTA for having filed out of time. It is clear that PAGCOR
Division’s ruling. In its Petition for Review before failed to make use of any of the three options
the SC, PAGCOR argues that its protest before the described above. Indeed, PAGCOR’s lapses in
CIR on August 14, 2008 starts a new period from procedure have made the BIR’s assessment final,
which to determine the last day to file its executor and demandable. (PAGCOR v. BIR, G.R. No.
petition before the CTA. Is PAGCOR correct? 208731, 27 Jan. 2016)
A: NO. The rules give a protesting taxpayer three

options:

Effect of failure to appeal should have appealed the final decision of the
CIR to the Court of Tax Appeals within thirty (30)
The decision or Assessment becomes final and days from the date of receipt of the said
executory. The Assessment is considered correct Decision, otherwise, the assessment became
which may be enforced by summary or judicial final, executory and demandable. Is the CIR
remedies. The Assessment which has become final correct?
and executory cannot be superseded by a new
assessment. A: NO. Court has on several occasions relaxed this
strict requirement. We have on several instances
In an action for the collection of the tax by the allowed the filing of an appeal outside the period
government, the taxpayer is barred from re-opening prescribed by law in the interest of justice, and in
the question already decided. the exercise of its equity jurisdiction. MISNET's
belated filing of an appeal with the CTA is not
In a proceeding for collection of tax by judicial without strong, compelling reason. We could say
action, the taxpayer’s defenses are similar to those that petitioner was merely exhausting all
of the defendant in a case for the enforcement of a administrative remedies available before seeking
judgment by judicial action. recourse to the judicial courts. While the rule is that
a taxpayer has 30 days to appeal to the CTA from the
Q: On November 29, 2006, MISNET INC received final decision of the CIR, the said rule could not be
a Preliminary Assessment Notice (PAN) from applied if the Assessment Notice itself clearly states
respondent Commissioner of Internal Revenue that the taxpayer must file a protest with the CIR or
(CIR) stating that after examination, there was the Regional Director within 30 days from receipt of
an alleged deficiency in taxes for taxable year the Assessment Notice. Under the circumstances
2003 amounting to P11,329,803.61, obtaining in this case, we opted not to apply the
representing the expanded withholding tax statutory period within which to appeal with the
(EWT) and final withholding VAT. MISNET filed CTA considering that no final decision yet was
a letter-protest on the PAN. issued by the CIR on petitioner's protest. The
subsequent appeal taken by petitioner is from the
On January 23, 2007, MISNET INC received a inaction of the CIR on its protest. (Misnet, Inc. v.
Formal Assessment Notice (FAN) which states Commissioner of Internal Revenue, G.R. 210604, 03
that petitioner's tax deficiency for the year June 2019)
2003, amounted to P11,580,749.31, inclusive of
P25,000.00 Compromise Penalty. RECOVERY OF TAX ERRONEOUSLY
OR ILLEGALLY COLLECTED
On March 28, 2011, MISNET received an
Amended Assessment Notice reflecting an Remedies of Taxpayer After Payment
amended deficiency EWT after reinvestigation.
On the same date, MISNET received a Final 1. Tax refund – Actual reimbursement of tax
Decision on Disputed Assessment (FDDA) 2. Tax credit – Government issues Tax Credit
stating that after reinvestigation, there was still Certificate (TCC) which may be applied against
due from petitioner the amount of any internal revenue tax, excluding withholding
P14,564,323.34. On April 8, 2011, petitioner taxes, for which the taxpayer is directly liable.
filed a letter-reply to the Amended Assessment (Sec. 204 (C), NIRC)
Notice and FDDA, which was received by the CIR
on April 11, 2011. All TCCs issued by the BIR shall not be allowed to be
transferred or assigned to any person. (Sec. 2, RR No.
On May 9, 2011, the CIR sent a letter to MISNET 14-2011)
which states in part that MISNET's letter-reply
dated April 8, 2011 produced no legal effect
since it availed of the improper remedy. It

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Grounds, requisites, and periods for filing a Requisites for a claim of tax refund or tax credit
claim for refund or issuance of a tax credit (2002, 2005 BAR)
certificate
1. There is tax collected erroneously or illegally, or
1. Tax is erroneously or illegally assessed or a penalty collected without authority, or a sum
collected; excessively or wrongfully collected. (Sec. 229,
2. Penalty is imposed without authority; and NIRC)
3. Sum collected is excessive or in any manner
wrongfully collected. NOTE: Payment under protest is not required.
Illegally collected tax vis-a-vis erroneously 2. There must be a written claim for refund filed
collected tax by the taxpayer with the CIR. (Vda. De Aguinaldo
v. CIR, G.R. No. L-19927, 26 Feb. 1965)
ILLEGALLY ERRONEOUSLY
COLLECTED TAX COLLECTED TAX XPNs:
Definition a. When on the face of the return upon which
payment was made, such payment appears
There is a violation of No violation of the law
clearly to have erroneously paid - the CIR
certain provisions of but there is a mistake in
may refund or credit the tax even without a
tax law or statute. collection.
written claim (Sec. 229, NIRC)
On the part of the taxpayer b. A return filed showing an overpayment
The tax was paid by The payment was made shall be considered as a written claim for
him under duress. under a mistake of fact. credit or refund (Sec. 204 (C), NIRC) (2002,
2010 BAR)
On the part of the taxpayer
The tax was collected The collection was 3. Must be a categorical claim for refund or credit;
in patent disregard of made based on a
the law. misapplication of the It is for the CIR to afford an opportunity to
law. correct the action of subordinate officers; and
Distinguish tax refund from tax credit To notify the Government that such taxes have
been questioned and the notice should then be
borne in mind in estimating the revenue
TAX REFUND TAX CREDIT
available for expenditure. (Bermejo v. CIR, G.R.
As to Purpose No. L-3029, 25 July 1950)
The taxpayer asks for The taxpayer asks that
restitution of the the money paid be 4. Must be filed within 2 years from date of
money paid as tax. applied to his existing payment of the tax or penalty regardless of
There is actual tax liability except any supervening cause that may arise after
reimbursement withholding taxes payment. No suit or proceeding shall be
Reckoning point of 2-year period instituted after the expiration of the period; and
(2008 BAR)
2-yr period to file the 2-yr period starts from
claim with the CIR the date such credit was
5. The taxpayer must present proof of payment of
starts after the allowed – in case credit
the tax.
payment of the tax or is wrongly made
penalty
Q: Congress enacts a law granting grade school
and high school students a 10% discount on all
school-prescribed textbooks purchased from
any bookstore. The law allows bookstores to

claim the discount in full as a tax credit. a refund and at the same time liable for a tax
deficiency assessment for the same year. The
a. If in a taxable year a bookstore has no tax deficiency assessment creates a doubt as to the
due on which to apply the tax credits, can the truth and accuracy of the Tax Return. Said Return
bookstore claim from the BIR a tax refund in cannot therefore be the basis of the refund. (CIR v.
lieu of tax credit? CA, G.R. No. 106611, 21 July 1994)
b. Can the BIR require the bookstores to
deduct the amount of the discount from Q: On June 16, 1997, the BIR issued against the
their gross income? Estate of Mott a notice of deficiency estate tax
c. If a bookstore closes its business due to assessment, inclusive of surcharge, interest and
losses without being able to recoup the compromise penalty. The Executor of the Estate
discount, can it claim reimbursement of the of Mott filed a timely protest against the
discount from the government on the assessment and requested for waiver of the
ground that without such reimbursement, surcharge, interest and penalty. The protest was
the law constitutes taking of private denied by the CIR with finality on Sept. 13, 1997.
property for public use without just Consequently, the Executor was made to pay the
compensation? (2006 BAR) deficiency assessment on Oct. 10, 1997. The
following day, the Executor filed a Petition with
A: the CTA praying for the refund of the surcharge,
a. NO, there is nothing in the law that grants a interest and compromise penalty. The CTA took
refund when the bookstore has no tax liability cognizance of the case and ordered the CIR to
against which the tax credit can be used. A tax make a refund. The CIR filed a Petition for
credit is in the nature of a tax exemption and in Review with the CA assailing the jurisdiction of
case of doubt, the doubt should be resolved in the CTA and the Order to make refund to the
strictissimi juris against the claimant. (CIR v. Estate on the ground that no claim for refund
Central Luzon Drug, G.R. No. 159647, 15 Apr. was filed with the BIR.
2005)
a. Is the stand of the CIR correct?
b. NO, tax credit which reduces the tax liability is b. Why is the filing of an administrative claim
different from a tax deduction which merely with the BIR necessary? (2000 BAR)
reduces the tax base. Since the law allowed the
bookstores to claim the discount in full as a tax A:
credit, the BIR is not allowed to expand or a. YES, for there was no claim for refund or credit
contract the legislative mandate. (CIR v. that has been duly filed with the CIR which is
Bicolandia Drug Corporation, G.R. 148083, 21 required before a suit or proceeding can be filed
July 2006) in any court. (Sec. 229, NIRC) The denial of the
claim by the CIR is the one which will vest the
c. NO, if the business continues to operate at a loss CTA jurisdiction over the refund case should the
and no other taxes are due, thus compelling it to taxpayer decide to appeal on time.
close shop, the credit can never be applied and
will be lost altogether. (CIR v. Central Luzon b. The filing of an administrative claim for refund
Drug, G.R. No. 159647, 15 Apr. 2005) The grant with the BIR is necessary in order:
of the discount to the taxpayer is a mere
privilege and can be revoked anytime. i. To afford the CIR an opportunity to
consider the claim and to have a chance to
Q: Is a deficiency tax assessment a bar to a claim correct the errors of subordinate officers.
for tax refund or tax credit? (2005 BAR) (Gonzales v. CTA, G.R. No. 14532, 26 May
1965); and
A: YES, the deficiency tax assessment is a bar to a tax
refund or credit. The taxpayer cannot be entitled to ii. To notify the Government that such taxes

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have been questioned and the notice shareholders of Puregold Price Club, Inc. On May
should be borne in mind in estimating the 11, 2012, they entered into a Deed of Exchange
revenue available for expenditures. with Puregold wherein they agreed to transfer
(Bermejo v. Collector, G.R. No. L-3028, 29 all their Kareila shares to Puregold in exchange
July 1950) for Puregold shares. Under the Share swap per
Deed of Exchange, they each would receive 450
Q: PNB electronically filed its Annual Income Puregold shares for every one Kareila share that
Tax Return and manually filed the same with the they would transfer to Puregold.
required attachments. PNB thereafter filed its
claim for refund or issuance of tax credit As a result of the share swap under the Deed of
certificate of its excess creditable withholding Exchange: (1) Puregold acquired majority
taxes. Due to the CIR’s inaction to the claim, PNB ownership of Kareila; and, (2) Respondents,
filed a petition for review for its claim. CTA who, prior to the share swap, already
Third Division found that PNB’s evidence was collectively owned 66.5720% of the outstanding
insufficient to support its claim for a refund or capital stock of Puregold consequently
issuance of tax credit certificate, ruling that the increased their stockholdings to 75.8329% after
presentation of the succeeding Quarterly ITRs the swap
was vital to its claim. PNB is contending that the
presentation of the ITRs is not indispensable to On June 26 and 28, 2012, respondents
its claim for refund. Is PNB’s contention correct? collectively paid capital gains tax (CGT)
including interest and/or compromise penalty
A: YES. The presentation of the claimant's quarterly on the said transfer pursuant to Section 24(C) of
returns is not a requirement to prove entitlement to the NIRC. They, however, contend that their
the refund. Once the minimum statutory payments of CGT were erroneous because,
requirements have been complied with, the under Section 40(C)(2) of the NIRC, their
claimant should be considered to have successfully transfer of shares through the Deed of Exchange
discharged its burden to prove its entitlement to the was a tax-exempt transaction. Thus, on May 21,
refund. After the claimant has successfully 2014, or within the two-year prescriptive
established a prima facie right to the refund by period, they filed their administrative claims for
complying with the requirements laid down by law, refund of the CGT including interest and/or
the burden is shifted to the opposing party to compromise penalty with their respective
disprove such claim. To rule otherwise would be to Revenue District Offices. Are the respondents
unduly burden the claimant with additional liable to pay capital gains tax by virtue of the
requirements which has no statutory nor transaction under the share swap under the
jurisprudential basis. Deed of Exchange?
Thus, once the claimant has successfully established A: NO. The requisites for the non-recognition of gain
that its claim was 1) filed within the two-year or loss are as follows:
prescriptive period; 2) that the income related to
the claimed CWT formed part of the return during 1. the transferee is a corporation;
the taxable year when the refund is claimed for; and 2. the transferee exchanges its shares of stock for
3) the fact of withholding of said taxes, it shall be property/ies of the transferor;
deemed to be entitled to its claimed CWT refund. 3. the transfer is made by a person, acting alone or
(Commissioner of Internal Revenue v. Philippine together with others, not exceeding four
National Bank, G.R. No. 212699, 13 Mar. 2019) persons; and
4. as a result of the exchange the transferor, alone
Q: Lucio L. Co, Susan P. Co, Ferdinand Vincent P. or together with others, not exceeding four,
Co and Pamela Justine P. Co, collectively were gains control of the transferee.
the majority shareholders of Kareila
Management Corporation. They were also The element of control is satisfied even if one of the

transferors is already owning at least 51% of the believed that an erroneous conclusion was reached.
shares of the transferee corporation, as long as after Arbitrariness presupposes inexcusable or obstinate
the exchange, the transferors, not more than five, disregard of legal provisions. (Philex Mining Corp. v.
collectively increase their equity in the transferee CIR, G.R. 120324, 21 Apr. 1999)
corporation by 51% or more. Thus, there has no
basis to claim that the share swap transaction Tax Refund or Tax Credit may be forfeited to the
between respondents and Puregold is not covered Government
by the tax-free exchange as provided in Section 40
(C)(2) in relation to Section 40 (C)(6)(c) of the NIRC a. Tax Refund – When a refund check or warrant
of 1997, as amended. It is undisputed that after the remains unclaimed or uncashed within 5 years
exchange, respondents collectively increased their from date of mailing or delivery.
control over Puregold from 66.57% to 75.83%.
Accordingly, respondents cannot be held liable for b. Tax Credit – a Tax Credit Certificate which
income taxes on the supposed gain which may have remains unutilized after 5 years from date of
resulted from such transfer. The CGT paid by issue, shall be invalid, unless revalidated. (Sec.
respondents on the subject transfer are considered 230, NIRC)
erroneously paid taxes and must perforce be
refunded pursuant to Section 229 of the NIRC of Two-year prescriptive period
1997, as amended. (CIR v Lucio Co, et al. G.R. 241424,
26 Feb. 2020) No credit or refund of taxes or penalties shall be
allowed unless the taxpayer files in writing with the
Payment under Protest is not a requirement CIR a claim for credit or refund within 2 years after
the payment of the tax or penalty. (Sec 204(C), NIRC)
A suit or proceeding for tax refund may be
maintained “whether or not such tax, penalty or sum No suit or proceeding shall be filed after the
has been paid under protest or duress” (Sec. 229, expiration of 2 years from the date of payment of the
NIRC) tax or penalty regardless of any supervening cause
that may arise after payment. (Sec 229, NIRC)
When Payment under Protest required
It is necessary that the tax be paid in full, and that
It is necessary in claims for refund for real property the claim for refund in the BIR as well as the
taxes under Sec. 252, LGC and for customs duties proceedings in the CTA be commenced within 2
under Sec. 2308, TCC. years counted from the payment of the tax.
Rule on government’s liability for interests on Thus, as a rule, the two-year prescriptive period
Tax Refunds runs from the payment of tax. However, the
following instances provide for different
GR: There can be no interest on refund of tax in the commencement of the two-year period:
absence of statutory provision clearly and expressly
directing or authorizing such payment. 1. Tax is paid in installments (For individuals):
From the date of the final payment.
XPNs:
1. If interest is authorized by law; 2. Payments effected through the withholding
2. Arbitrariness in the collection of tax; tax system: From the date it falls due at the end
3. Under Sec. 79(C)(2) with respect to income of the taxable year.
taxes withheld on the wages of the employees.
In case of payments effected through
NOTE: An action is not arbitrary when exercised withholding tax system, the tax liability is
honestly and upon due consideration where there is deemed paid when the same falls due at the end
room for two opinions, however much it may be of the tax year. This is because a taxpayer,

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resident or non-resident, who contributes to the in its answer to the petition for review, it is deemed
withholding tax system, not really deposit an waived.
amount to the CIR, but, in truth, performs and
extinguishes his tax obligation for the year XPN: Taxpayer amends his petition for review
concerned. (Gibbs v. CIR, G.R. No. L-17406, 29 Nov. alleging therein a new cause of action and the
1965) government pleads prescription in his answer to the
amended petition for review.
3. Overpaid quarterly corporate income tax:
From the date the final adjustment return is filed Q: Alyanna has a pending claim for refund with
after the end of the taxable year. The period is the CIR. The 2-year period is about to end and
counted from the actual filing, not the last day the CIR has yet to decide on the claim. What must
allowed by law to file. Alyanna do to pursue her claim for refund?
The filing and payment of the quarterly income A: A claim for refund must be filed with the BIR and
tax should only be considered as mere the commencement of the proceedings in the CTA
installments of the annual tax due. These must be done within the 2-year period from the date
quarterly payments should be treated as of full payment of the tax or penalty regardless of
advances or portions of the annual income tax any supervening event. Thus, Alyanna must
due, to be adjusted at the end of the year, its Final commence the proceedings with the CTA before the
Adjustment Return. (CIR v. TMX Sales, G.R. No. end of the 2-year period without waiting for the
83736, 15 Jan. 1992 reiterated in CIR v. CA, G.R. decision of the CIR.
No. 117254, 21 Jan. 1999)
Q: On Mar. 12, 2001, REN paid his taxes. Ten
The two-year period for filing tax refund is not months later, he realized that he had overpaid
jurisdictional and immediately filed a claim for refund with
the CIR. On Feb. 27, 2003, he received the
The Supreme Court held that even if the two-year decision of the CIR denying REN's claim for
period had already lapsed, the same is not refund. On Mar. 24, 2003, REN filed an appeal
jurisdictional and may be suspended for reasons of with the CTA. Was his appeal filed on time or
equity and other special circumstances. (CIR v. PNB, not? (2004 BAR)
G.R. No. 161997, 25 Oct. 2005)
A: NO. His appeal was not filed on time. The 2-year
Founded on moral and equitable grounds, the period for filing a claim for refund is not only a
following circumstances may stay the two-year limitation for pursuing the claim at the
period: administrative level but also for appealing the case
to the CTA. The law provides that "no suit or
1. Assurance on the part of the BIR that steps were proceeding shall be filed after the expiration of 2
being taken to credit taxpayer with the amount years from the date of the payment of the tax or
sought to be refunded; penalty regardless of any supervening cause that
2. An agreement or understanding with the BIR may arise after payment. Since the appeal was only
that they await the result of a pending cases made on Mar. 24, 2003, more than two years had
involving similar issue raised in the claim for already elapsed from the time the taxes were paid
refund. (Panay Electric Co., Inc. v. CIR, G.R. No. L- on Mar. 12, 2003. Accordingly, REN had lost his
10574, 28 May 1958) judicial remedy because of prescription.
Waiver of prescription in an action for refund Q: XCEL Corp. filed its quarterly income tax
return for the first quarter of 1985 and paid
GR: The 2-year period is not jurisdictional. P500.000 on May 15, 1985. In the subsequent
Therefore, if the government failed to plead quarters, XCEL suffered losses. On Apr. 15, 1986
prescription in a motion to dismiss or as a defense it declared a net loss of P1,000,000 in its annual

income tax return. After failing to get a refund, a tax is still due or a refund can be claimed based on
XCEL filed on Mar. 1, 1988 a case with the CTA to the adjusted and audited figures.” (Commissioner of
recover the P500.000 in taxes paid on May 15, Internal Revenue v. Univation Motor Philippines, Inc.
1985. Is the action to recover the taxes filed (Formerly Nissan Motor Philippines, Inc.), G.R.
timely? (1994 BAR) 231581, 10 Apr. 2019)
A: The action for refund was filed with the CTA on Taxpayer’s remedy in case of denial of claim for
time. In the case of overpaid quarterly corporate Refund
income tax, the two-year period for filing claims for
refund in the BIR as well as in the institution of an The taxpayer may appeal to CTA in case of denial by
action for refund in the CTA, the two-year CIR of the claim for refund. It must be filed within 30
prescriptive period for tax refunds is counted from days from receipt of the decision of the CIR but not
the filing of the final, adjustment return under to exceed the 2-year period from date of payment of
Sec. 67 of the NIRC, and not from the filing of the the tax or penalty regardless of any supervening
quarterly return and payment of the quarterly tax. cause that may arise after payment.
The CTA action on Mar. 1, 1988 was clearly within
the reglementary 2-year period from the filing of the In case the decision of the CIR takes too long and the
final adjustment return of the corporation on Apr. 2-year period is about to end, proceedings in the
15, 1986. CTA must be commenced and without the need to
wait for the decision of the CIR.
Q: On July 8, 2011, Univation Motor Philippines,
Inc. filed its amended Annual Income Tax Return Distinction of remedies in Tax Assessment and
(ITR) for 2010 showing a total gross income of claim for Refund
P117,084,174.00 and an overpayment of income
taxes amounting to P26,103,898.52. Univation AGAINST AN CLAIM FOR REFUND
Motor Philippines filed its Application for Tax ASSESSMENT (SEC. 229)
Credit in the amount of P12,868,745.00. Since As to manner and period to be contested
the BIR has not yet acted upon respondent's
A tax assessment A denial by the CIR of
administrative claim, petitioner filed a Petition
becomes final unless it a claim for refund
for Review with the CTA on April 12, 2013. CIR
is disputed or contested must be appealed to
argued that respondent prematurely filed its
within 30 days from the CTA within 30
judicial claim with the CTA depriving it with the
receipt thereof by the days from receipt of
opportunity to act on the administrative claim
taxpayer. If the action notice of denial AND
for refund/tax credit in violation of the doctrine
taken by the CIR on the within 2 years from
of exhaustion of administrative remedies. Is the
request for the day of full and final
petitioner’s contention correct?
reconsideration is payment.
unacceptable to the
A: NO. Indeed, the two-year period in filing a claim
taxpayer, the latter
for tax refund is crucial. While the law provides that
must then appeal, by
the two-year period is counted from the date of
way of Petition for
payment of the tax, jurisprudence, however,
Review to the CTA
clarified that the two-year prescriptive period to
within 30 days from
claim a refund actually commences to run, at the
receipt of the decision
earliest, on the date of the filing of the adjusted final
of the CIR.
tax return because this is where the figures of the
The taxpayer may also Continued inaction by
gross receipts and deductions have been audited
opt to pay the tax before the CIR on claims for
and adjusted, reflective of the results of the
the finality of the refund may thus be
operations of a business enterprise. “Thus, it is only
assessment (e.g., within taken as a denial
when the Adjustment Return covering the whole
30 days from receipt of appealable to the CTA,
year is filed that the taxpayer would know whether

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the assessment) and in order to permit the the tax. two-year mandatory
then file within 2 years appeal to be period.
from payment a written considered or having
claim for the refund of been made within the
Proper party to file claim for refund or tax credit
GR: The “taxpayer” is the person entitled to claim a tax refund. He is the “party adversely affected” who is given
the right to appeal the decision or ruling of the Commissioner.
XPN: Under the following situations:
THE ONE ENTITLED FOR THE REFUND REASON
Where the tax has been shifted

The taxpayer (even if the tax was shifted by the The sales tax is imposed directly on the seller. Once
taxpayer to his customers as in sales tax and even recovered, the seller must hold the refunded taxes in trust
if the tax has been billed as a separate item in the for the individual purchasers who advanced payment
invoice). (CIR v. American Rubber, G.R. No. L- thereof and whose name must appear on his record.
19667, 29 Nov. 1966)
Where the payer is not the taxpayer
Theater goers can claim the illegally exacted taxes The amount collected (the illegal municipal taxes) from
not the theater owners. (Medina v. Baguio, G.R. No. the theater goers by theater owners are owned by the
L-4060, 29 Aug. 1952) theater goers. Only owners of property have the right to
claim it. The theater owners merely acted as agents of the
theater goers and as such they cannot claim the amount
illegally imposed by the municipality. (Medina v. Baguio,
ibid.)
Where the payer is the withholding agent
1. The withholding agent (CIR v. Procter and
Gamble, G.R. No. L-66838, 02 Dec. 1991)
2. Withholding agent may file a claim for refund a. The withholding agent is considered a ‘taxpayer”
for taxes which was withheld and paid on behalf under the NIRC as he is personally liable for the
of a non-resident foreign corporation (Filipinas withholding tax as well as for deficiency assessments,
Synthetic Fiber Corporation v CA, G.R. Nos. 118498 surcharges, and penalties, should the amount of the
& 124377, 12 Oct. 1999) tax withheld be finally found to be less than the
amount that should have been withheld under law.”
3. In case the taxpayer does not file a claim for
refund, the withholding agent has the right to file b. As an agent of the taxpayer, the withholding agent has
the claim, even when it is unrelated to, or is not a the authority to file the necessary income tax return
wholly owned subsidiary of, the principal and to remit the tax withheld to the government
taxpayer. (CIR vs. Smart Communications, Inc, G.R. impliedly includes the authority to file a claim for
Nos. 179045-46, 25 Aug. 2010) refund and to bring an action for recovery of such
claim.” (CIR v. Smart Communications, Inc., ibid)
NOTE: Since this is merely an exception, the rule
is that the withholding agent is not considered as
the taxpayer, hence he is not entitled to a tax
amnesty due for the taxpayer’s account.

Where the donor’s tax was assumed by the donee

Donee is the proper party to claim the refund of
the donor’s tax (even if the tax was advanced by
the donor).
Proper party to question/seek a Tax Refund in thereof to another.”

Indirect Taxes
Excise tax on petroleum is an indirect tax.
The proper party is the statutory taxpayer, the Although the burden to pay an indirect tax can
person on whom the tax is imposed by law and who be passed on to the purchaser of the goods, the
paid the tax even when he shifts the burden thereof liability to pay the indirect tax remains with the
to another because once shifted, it is no longer in the petroleum manufacturer or seller. When the
nature of a tax, but part of the purchase price or the manufacturer or seller decides to shift the
cost of goods or services sold. (Exxon Mobil burden of the excise tax to the tax-exempt
Petroleum and Chemical Holdings, Inc. purchaser, the tax becomes a part of the price of
the commodity. Thus, in this case, the petroleum
vs. CIR, G.R. No. 180909, 19 Jan. 2011; Silkair manufacturer who is the statutory taxpayer is
(Singapore) Pte., Ltd. v. CIR, G.R. No. 166482, 25 Jan. the proper party to claim the refund.
2012)
b. The exempt entity’s remedy is to invoke its tax
Q: Silkair purchased aviation jet fuel from exemption before buying the petroleum so that
Petron for use on Silkair international flights. the petroleum manufacturer would not pass on
Silkair, contending that it is exempt from the the excise taxes as part of the purchase price.
payment of excise taxes, filed a formal claim for (Silkair Singapore PTE. Ltd. v. CIR, G.R. No.
refund with the CIR. Silkair claims that it is 171383 & 172379, 14 Nov. 2008)
exempt from the payment of excise tax under
the NIRC, specifically Sec. 135, and under Art. 4 Q: Chevron filed a claim for refund or tax credit
of the Air Transport Agreement between the for the excise taxes paid on its importation of
Governments of the Republic of the Philippines petroleum products that it had sold to the Clark
and the Republic of Singapore (Air Agreement) Development Corporation (CDC), an entity
The CIR denied the claim contending that since exempt from direct and indirect taxes. Is
the liability for the excise tax payment is Chevron entitled to the tax refund or tax credit?
imposed by law on Petron as the manufacturer
of the petroleum products, any claim for refund A: Excise tax is a tax on property; hence, the
should only be made by Petron as the statutory exemption from the excise tax expressly granted
taxpayer. under Section 135 of the NIRC must be construed in
favor of the petroleum products on which the excise
a. Decide whether or not Silkair is the proper tax was initially imposed. Accordingly, the excise
party to claim a refund for the excise taxes taxes that Chevron paid on its importation of
paid. petroleum products subsequently sold to CDC were
b. What is the proper remedy of the Silkair? illegal and erroneous and should be credited or
refunded to Chevron in accordance with Sec. 204 of
A: NIRC.
a. Silkair is not the proper party to claim a refund
for the excise taxes paid. The SC held that “the In cases involving excise tax exemptions on
proper party to question or seek a refund of an petroleum products under Section 135 of the NIRC,
indirect tax is the statutory taxpayer, the person the Court has consistently held that it is the
on whom the tax is imposed by law and who statutory taxpayer, not the party who only bears the
paid the same even if he shifts the burden economic burden, who is entitled to claim the tax

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Remedial Law
refund or tax credit. The general rule applies here Team (Phils.) Energy Corp., G.R. No. 188016, 14 Jan.
because Chevron did not pass on to CDC the excise 2015)
taxes paid on the importation of the petroleum
products, the latter being exempt from indirect The Irrevocability Rule
taxes. (Chevron Phil. Inc. v. CIR, G.R. No. 210836, 01
Sept. 2015) Once the option to carry-over and apply the excess
quarterly income tax against income tax due for the
Q: Does a withholding agent have the right to file taxable quarters of the succeeding taxable years has
an application for tax refund? Explain. (2005 been made, such option shall be considered
BAR) irrevocable for that taxable period and no
application for cash refund or issuance of a tax
A: YES. A withholding agent should be allowed to credit certificate shall be allowed therefor. (Sec 76,
claim for tax refund, because under the law said NIRC)
agent is the one who is held liable for any violation
of the withholding tax law should such violation The phrase “such option shall be considered
occur. (Commissioner of Internal Revenue v. Wander irrevocable for that taxable period” means that the
Philippines Inc., G.R. No. No. L-68375, 15 Apr. 1988) option to carry over the excess tax credits of a
particular taxable year can no longer be revoked.
Furthermore, since the withholding agent is made (SYSTRA Phil., Inc. v. CIR, G.R. No. 176290, 21 Sept.
personally liable to deduct and withhold any tax 2007)
under Section 53(c) of the NIRC, it is imperative that
he be considered the taxpayer for all legal intents NOTE: Under the old provision, the option to carry-
and purposes. Thus, by any reasonable standard, over the excess or overpaid income tax for a given
such person should be regarded as a party in taxable year is limited to the immediately
interest to bring suit for refund of taxes. succeeding taxable year only. In contrast, under
(Commissioner of Internal Revenue v. Procter and Section 76 of the NIRC of 1997, the application of the
Gamble Philippines Manufacturing Corporation and option to carry over the excess of creditable tax is
CTA, G.R. No. 66838, 02 Dec. 1991) not limited only to the immediately following
taxable year but extends to the next succeeding
Corporate taxpayer’s options in case of excess taxable years. The clear intent in the amendment
quarterly income taxes paid under section 76 is to make the option, once
exercised, irrevocable for the “succeeding taxable
If the sum of the quarterly tax payments made years”. (Asiaworld Properties Philippines
during the said taxable year exceeds the total tax Corporation v. CIR, G.R. No. 171766, 29 Jul. 2010)
due on the entire taxable income of that year, the
corporation shall either: Q: In its 2006 Annual ITR, UPSI-MI chose the
option "To be issued a tax credit certificate" with
1. Carry-over the excess credit against the respect to the amount P2,927,834.00,
estimated quarterly income tax liabilities for representing unutilized excess creditable taxes
the taxable quarters of the succeeding taxable for the taxable year ending 31 December 2006.
years; or
2. Be credited (TCC); or In the following year, UPSI-MI changed its
3. Refunded with the excess amount paid. (Sec 76, taxable period from calendar year to fiscal year
NIRC) ending on the last day of March. Thus, it filed on
14 November 2007 an Annual ITR covering the
The above options are alternative and not short period from January 1 to March 31 of 2007.
cumulative in nature, that is, the choice of one In the original 2007 Annual ITR, UPSI-MI opted
precludes the other. The logic behind the rule is to to carry over as "Prior Year's Excess Credits" the
ease tax administration, particularly the self- total amount of P5,159,341.00 which included
assessment and collection aspects. (Republic v. the 2006 unutilized creditable withholding tax

of P2,927,834.00. Thereafter, UPSI-MI amended excess credits of P0.00.

the return by excluding the sum of
P2,927,834.00 under the line "Prior Year's On December 7, 2007, pending CIR's action on Z
Excess Credits" which amount is the subject of Company's claim for refund or issuance of a tax
the refund claim. Is UPSI-MI still entitled to the credit certificate of its excess or unutilized CWT
refund of its 2006 excess tax credits in the for the year 2005 and before the lapse of the
amount of P2,927,834 even though it initially period for filing an appeal, Z Company filed a
filed its income tax return (for the short period Petition for Review with the CTA.
ending 31 March 2007) indicating the option of The CIR alleged: assuming without admitting
carry-over? that respondent filed a claim for refund, the
same is subject to investigation by the BIR; Z
A: NO. The Court interpreted Section 76 of the NIRC Company failed to demonstrate that the tax was
that the irrevocability is limited only to the option of erroneously or illegally collected; taxes paid and
carry-over such that a taxpayer is still free to change collected are presumed to have been made in
its choice after electing a refund of its excess tax accordance with laws and regulations, hence,
credit. But once it opts to carry over such excess not refundable; it is incumbent upon
creditable tax, after electing refund or issuance of respondent to show that it has complied with the
tax credit certificate, the carry-over option becomes provisions of Section 204(C), in relation to
irrevocable. Accordingly, the previous choice of a Section 229 of the Tax Code, as amended, upon
claim for refund, even if subsequently pursued, may which its claim for refund was premised. Is Z
no longer be granted. Company barred by the irrevocability rule in
claiming for the refund of its excess and/or
Further, nothing in the contents of BIR 1702 unutilized creditable withholding tax?
expressly declares that the option of refund or TCC
is irrevocable. Even on the assumption that the A: NO. In case the corporation is entitled to a tax
irrevocability also applies to the option of refund, credit or refund of the excess estimated quarterly
such would be an interpretation of the BIR that is income taxes paid, the excess amount shown on its
contrary to the intent of the law. It must be stressed final adjustment return may be carried over and
that such erroneous interpretation is not binding on credited against the estimated quarterly income tax
the court. (University Physicians Services, Inc. v. liabilities for the taxable quarters of the succeeding
Commissioner of Internal Revenue, G.R. 205955, 07 taxable years. Once the option to carry over and
Mar. 2018) apply the excess quarterly income tax against
income tax due for the taxable years of the
Q: On April 17, 2006, Z Company filed its Annual succeeding taxable years has been made, such
Income Tax Return ("ITR") for taxable year option shall be considered irrevocable for that
2005, and reflected a tax overpayment of taxable period and no application for cash refund or
P1,500,653.00. In said Annual ITR for taxable issuance of a tax credit certificate shall be allowed
year 2005, Z Company indicated that its excess therefor.
creditable withholding tax ("CWT") for the year
2005 was "To be refunded". However, on its The CTA En Banc thereby misappreciated the fact
Quarterly Income Tax Return for the first to that Z Company had already exercised the option for
third quarter of the taxable year 2006, it its unutilized creditable withholding tax for the year
reflected prior year excess credits of 2005 to be refunded when it filed its annual ITR for
P1,500,653.00. On December 29, 2006, the taxable year ending December 31, 2005. Based
respondent filed with the Revenue Region No. 8 on the disquisition in Republic v. Team Phils. Energy
an administrative claim for refund of its alleged Corporation, supra, the irrevocability rule took
excess/unutilized CWT for the year 2005 in the effect when the option was exercised. In the case of
amount of P1,500,653.00. On April 2, 2007, Z Company, therefore, its marking of the box "To be
respondent filed its Annual Income Tax Return refunded" in its 2005 annual ITR constituted its
for taxable year 2006 showing prior year's exercise of the option, and from then onwards Z

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Company became precluded from carrying-over the 2. When it is shown on the ITR that the income
excess creditable withholding tax. The fact that the payment received is being declared part of the
prior year's excess credits were reported in its 2006 taxpayer's gross income; and
quarterly ITRs did not reverse the option to be
refunded exercised in its 2005 annual ITR. As such, 3. When the fact of withholding is established by a
the CTA En Banc erred in applying the irrevocability copy of the withholding tax statement, duly
rule against Z Company. (Rhombus Energy, Inc. v. issued by the payor to the payee, showing the
Commissioner of Internal Revenue, G.R. 206362, 01 amount paid and income tax withheld from that
Aug. 2018) amount.
Failure to signify preference in the return does The contention of the BIR that a taxpayer in claim
not bar outright a claim for refund for tax refund should submit its quarterly returns to
show that it did not carry-over the excess
The corporation must signify its intention by withholding tax to the succeeding quarter is without
marking the corresponding option box provided in merit. When the taxpayer is able to establish prima
the final adjustment return (FAR) While a taxpayer facie its right to the refund by testimonial and object
is required to mark its choice in the form provided evidence, the BIR should present rebuttal evidence
by the BIR, this requirement is only for facilitating to shift the burden of evidence back to the taxpayer.
tax collection to ease tax administration, (Republic v. Team (Phils.) Energy Corp., G.R. No.
particularly the self-assessment and collection 188016, 14 Jan. 2015)
aspects.
There is no question that those who claim must not
Failure to signify one's intention in the FAR does not only prove its entitlement to the excess credits, but
mean outright barring of a valid request for a likewise must prove that no carry-over has been
refund, should one still choose this option later on. made in cases where refund is sought. Proving that
Despite the failure of taxpayer to make the no carry-over has been made does not
appropriate marking in the BIR form, the filing of its absolutely require the presentation of the
written claim effectively serves as an expression of quarterly ITRs. The rule is that any document,
its choice to request a tax refund, instead of a tax other than quarterly ITRs may be used to establish
credit. To assert that any future claim for a tax that indeed the non-carry over clause has been
refund will be instantly hindered by a failure to complied with, provided that such is competent,
signify one's intention in the FAR is to render relevant and part of the records. Thus, quarterly
nugatory the clear provision that allows for a two- ITRs are not indispensable in a claim for refund
year prescriptive period. (Philam Asset Management for no court can limit a party to the means of
Inc. v. CIR, G.R. Nos. 156637/162004, 14 Dec. 2005) proving a fact for as long as they are consistent
with the rules of evidence and fair play. To stress,
what the NIRC merely requires is to sufficiently
Claim for Tax Refund or credit of excess and prove the existence of the non-carry over of excess
unutilized creditable withholding tax (CWT) CWT in a claim for refund. (Winebrenner & Iñigo
Insurance Brokers, Inc. v. CIR, G.R. No. 206526, 28 Jan.
The requirements for entitlement of a corporate 2015)
taxpayer for a refund or the issuance of TCC
involving excess withholding taxes are as follows: Q: In its final adjustment return for the 2010
(T-I-F) taxable year, ABC Corp. had excess tax credits
arising from its over-withholding of income
1. That the claim for refund was filed within the payments. It opted to carry over the excess tax
two-year reglementary period pursuant to credits to the following year. Subsequently, ABC
Section 229 of the NIRC; Corp. changed its mind and applied for a refund
of the excess tax credits. Will the claim for
refund prosper? (2013 BAR)

A: NO, it is barred by the irrevocability rule. If the 2005, XYZ, Inc. filed with the BIR a written claim
corporation opts to carry-over its excess credit in for a TCC in the amount of P18,992,055.00.
the final adjustment return, its choice shall be When CIR failed to act upon XYZ, Inc.'s claim,
irrevocable for that taxable period. The purpose of XYZ, Inc. filed a Petition for Review with the CTA
this rule is to prevent a taxpayer from claiming First Division on 15 April 2005.
excess tax credits twice. In the given problem, ABC
Corp. opted to carry-over its excess tax credits for The Court commissioned Independent CPA filed
the 2010 taxable year. Consequently, ABC Corp. can his Final and Consolidated Report which stated
no longer revoke its choice to carry-over the excess that they found that the total CWT’s claimed per
tax credits and instead claim for a refund. December 31, 1998 Amended ITR are as follows,
Real Estate Sales- P6,067,093.08, Real Estate
Q: In its 1997 ITR, PM Management Leasing- P2,800,461.83, Other Income-
International Inc. expressly signified that it had Management Fees - P124,500.00.
a CWT of P1.2M for taxable year 1997 to be
claimed as tax credit in taxable year 1998. The CTA First Division agreed with the findings
However, due to its net-loss position in 1998, the of the Independent CPA, except for the amount
taxpayer was unable to claim the P1.2M as tax of P3,857.33 which was erroneously included as
credit. part of the Creditable Withholding Taxes
(CWTs) filed out of period in the amount of
On April 12, 2000, the taxpayer filed with BIR a P2,818,260.83. It found that the certificate
written claim for the refund of the P1.2M supporting the creditable tax of P3,857.33
unutilized CWT for taxable year 1997. Is the shows that the same was withheld in taxable
taxpayer entitled to refund? year 2002. It further held that out of the total
creditable tax withheld of P18,992,055.00, only
A: NO. Inasmuch as the respondent already opted to the amount of P15,877,961.02 represents XYZ,
carry over its unutilized CWT of P1.2M to taxable Inc.'s valid claim for taxable year 2002.
year 1998, the carry-over could no longer be
converted into a claim for tax refund because of the a. Can the XYZ, Inc. claim a refund of excess
irrevocability rule provided in Section 76 of the creditable withholding tax?
NIRC of 1997. Thereby, the respondent became b. Is the XYZ, Inc. liable for deficiency income
barred from claiming the refund. tax for taxable year 2003?
However, in view of its irrevocable choice, the A:

respondent remained entitled to utilize that amount a. YES. The requisites for claiming a refund of
of P1.2M as tax credit in succeeding taxable years excess creditable withholding taxes are: (l) the
until fully exhausted. In this regard, prescription did claim for refund was filed within the two-year
not bar it from applying the amount as tax credit prescriptive period; (2) the fact of withholding
considering that there is no prescriptive period for is established by a copy of a statement duly
the carrying over of the amount as tax credit in issued by the payor (withholding agent) to the
subsequent taxable years. (CIR v. PL Management payee, showing the amount of tax withheld
International Philippines, Inc., G.R. No. 160949, 04 therefrom; and (3) the income upon which the
Apr. 2011) taxes were withheld was included in the income
tax return of the recipient as part of the gross
Q: XYZ, Inc. is a registered real estate developer. income. XYZ, Inc. complied with all the
On 15 April 2003, XYZ, Inc. filed with the BIR its requisites. However, the CTA First Division
ITR for the year ending 31 December 2002. XYZ, found some discrepancies with the claimed
Inc. indicated in its ITR and amended ITR for refund and the amount to which XYZ, Inc. is
taxable year 2002 that it is opting to be issued a entitled for refund.
tax credit certificate (TCC) for the alleged
overpayment of P18,992,055.00. On 4 March First, XYZ, Inc. filed the claim for refund within

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the two-year prescriptive period. In G.R. No. 213658, petitioners filed a Petition
for Certiorari and Prohibition before the SC
Second, as proof of taxes withheld, XYZ, Inc. seeking to nullify RMO No. 23-2014 on the
submitted the Certificate Authorizing following grounds: (1) CIR is bereft of any
Registration, Withholding Tax Remittance authority to issue the assailed RMO. The NIRC of
Returns, and Certificates of Creditable Tax 1997 expressly vests to the Secretary of Finance
Withheld at Source, upon which the the authority to promulgate rules and
Independent CPA based his report. regulations for the effective enforcement of tax
provisions; and (2) CIR committed grave abuse
Third, XYZ, Inc. submitted its amended 2002 of discretion when it subjected to withholding
ITR to show that the income upon which the tax allowances of court employees which are
taxes were withheld was included in its ITR. tax-exempt such as Special Allowance for
However, upon comparison with the Judiciary (SAJ) and additional cost of living
Certificates of Creditable Tax Withheld at allowance (AdCOLA), among others.
Source and Withholding Tax Remittance
Returns, the CTA First Division and the CTA En Did the RMO go beyond the provisions of the
Banc found certain discrepancies and held that NIRC when it imposed new or additional taxes to
out of the total claimed CWT of P15,877,961.02, allowances, benefits or bonuses granted to
XYZ, Inc. was only able to provide valid proofs government employees claimed by petitioners
of withholding for the amount of to be non-taxable?
P15,752,461.03. (Commissioner of Internal
Revenue v. Cebu Holdings, Inc., G.R. 189792, 20 A: NO. The RMO did not go beyond the provisions of
Jun. 2018) the NIRC when it imposed new or additional taxes
to allowances, benefits or bonuses granted to
b. YES. XYZ, Inc. erroneously carried over the government employees claimed by petitioners to be
amount of P16,194,108.00 as prior year's non-taxable.
excess credits, to which it is not entitled, to the
succeeding taxable year 2003 as shown in XYZ, The RMO merely mirrors the relevant provisions of
Inc.'s Annual ITR for the year 2003. (Ibid) the NIRC and its implementing rules on the
withholding tax on compensation income. It simply
Q: Commissioner of Internal Revenue (CIR) reinforces the rule that every form of compensation
issued RMO No. 23-2014 on the "Reiteration of arising from employer-employee relationship is
the Responsibilities of the Officials and deemed subject to income tax and, consequently, to
Employees of Government Offices for the withholding tax, unless specifically exempted or
Withholding of Applicable Taxes on Certain excluded by the NIRC. While Section III of the RMO
Income Payments and the Imposition of enumerates certain allowances, which may be
Penalties for Non-Compliance Thereof” in order subject to withholding tax, it does not exclude the
to clarify the responsibilities of the public sector possibility that these allowances may fall under the
to withhold taxes on its transactions as a exemptions, thus, the phrase “subject to the
customer and as an employer. exemptions enumerated herein.” (Confederation for
Unity, Recognition and Advancement of Government
In G.R. No. 213446, petitioners filed a Petition Employees (Courage), et al. v. Commissioner, Bureau
for Prohibition and Mandamus before the SC, of Internal Revenue and The Secretary, Department
imputing grave abuse of discretion on the part of of Finance/ Judge Armando A. Yanga and Cristina
CIR in issuing RMO No. 23-2014. According to Carmela Japzon v. Hon. Commissioner Kim Jacinto-
petitioners, the said RMO classified some items Henares, G.R. No. 213446 / 213658, 03 July 2018, J.
of income of government employees as taxable Caguioa)
compensation which they alleged to be
considered by law as non-taxable fringe and de Q: In 2002, PAL made US dollar and Philippine
minimis benefits. peso deposits and placements in Chinabank,

JPMorgan, PBCom, and Standard Chartered. The final withholding taxes: (i) the payor-withholding
agent banks withheld final taxes from interest agent is responsible for the withholding and
income earned from these deposits. remitting of the income taxes; (ii) the payee-refund
claimant has no control over the remittance of the
In 2003, PAL filed with the BIR a written request taxes withheld from its income; (iii) the Certificates
for a tax refund claiming that it was exempt of Final Tax Withheld at Source issued by the
from final withholding taxes under its franchise withholding agents of the government are prima
based on Presidential Decree No. 1590. Upon facie proof of actual payment by payee-refund
failure to act by the Commissioner, PAL elevated claimant to the government itself and are declared
the case to the CTA in Division. The CTA Special under perjury. (Philippine Airlines, Inc. v.
First Division partially granted PAL’s petition Commissioner of Internal Revenue, G.R. No. 206079-
and ordered Commissioner to refund PAL for 80, 17 Jan. 2018)
the final income tax withheld and remitted by
JPMorgan and denied the claim for refund for DISTINGUISH FROM INPUT VALUE-ADDED TAX
other banks. It ruled that PAL was exempted REFUND
from final withholding tax on interest on bank
deposits, but PAL failed to adequately Excess input VAT (Sec. 112) vs. Excessively
substantiate its claim for the other banks’ collected tax (Sec. 229)
remittances. The CTA En Banc sustained that
PAL failed to prove the remittance by In a claim for refund or credit of “excess” input VAT
Chinabank, PBCom, and Standard Chartered. under Sec. 110(B) and Sec. 112(A), the input VAT is
not “excessively” collected as understood under Sec.
PAL questions the denial of its refund claim and 229. At the time of payment of the input VAT the
argues that it adequately presented Certificates amount paid is the correct and proper amount. The
of Final Taxes Withheld issued by these Agent person legally liable for the input VAT cannot claim
Banks. The Commissioner argues that PAL is not that he overpaid the input VAT by the mere
entitled to the refund as it failed to present its existence of an “excess” input VAT. The term
documentary evidence before the BIR. Is the “excess” input VAT simply means that the input VAT
BIR’s claim with merit? available as credit exceeds the output VAT.
A: NO. PAL is exempt from paying the income tax on From the plain text of Sec. 229, it is clear that what
interest earned under its franchise, P.D. 1590. can be refunded or credited is a tax that is
Hence, PAL is entitled to its claim for refund for “erroneously, illegally, excessively or in any manner
taxes withheld by Chinabank, PBCom, and Standard wrongfully collected.” In short, there must be a
Chartered. Remittance need not be proven. PAL wrongful payment because what is paid, or part of
needs only to prove that taxes were withheld from it, is legally due.
its interest income.
Distinction between the application of the 2-
To claim a refund, this Court rules that PAL needs Year prescriptive period under Sec. 112 and Sec.
only to prove that taxes were withheld. Taxes 229
withheld by the withholding agent are deemed to
be the full and final payment of the income tax due 1. Under Sec. 112, the two-year prescriptive
from the income earner or payee. Certificates of period applies only to the administrative claim
Final Taxes Withheld issued by the Agent Banks are before the CIR and not to judicial claim before
sufficient evidence to establish the withholding of the CTA because the taxpayer always has thirty
the taxes. (30) days from the decision of the CIR or from
the lapse of the 120-day period even after the
Proof of remittance is not necessary to claim a tax lapse of two (2) years from the taxable quarter
refund of final withholding taxes. The same where the sales were made (CIR v. Mindanao
principles used to rationalize the ruling apply to Geothermal II Partnership, G.R. No. 191498, 15

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Jan. 2014) law. (J. Dimaampao, 2015)
Thus, it is only the administrative claim that The Government is not exempt from the application
must be filed within the two-year prescriptive of solutio indebiti. Indeed, the taxpayer expects fair
period; the judicial claim need not fall within dealing from the Government, and the latter has the
the two-year prescriptive period. duty to refund without any unreasonable delay
what it has erroneously collected. (CIR. v. Fortune
2. Under Sec. 229, the decision of the CIR is Tobacco, Corp., G.R. No. 167274-75, 21 July 2008)
appealable to the CTA sitting in division within
thirty (30) days after the receipt but must be The pertinent laws governing this principle are
within the two-year period from payment or found in Art. 2142 and Art. 2154, NCC.
filing of the final adjusted return. Thus, if the
Commissioner denies the claim for refund Provisions of the NIRC regarding refund
within the two-year period, the remedy is to file
an appeal with the CTA thirty (30) days from 1. Corporations entitled to refund of excess
the receipt of such denial. But, such thirty-day estimated quarterly income paid as shown on
period must also be within the two-year period. its final adjustment return. (Sec. 75 and 76,
For example, if there are only ten (10) days left NIRC)
within such two-year period, then, the taxpayer
has only ten (10) days within which to appeal 2. Claims for refund of VAT-registered persons,
his claim. However, if there is an inaction on the whose sales are zero-rated or effectively zero-
part of the Commissioner and the two-year rated, with regard to their creditable input tax
period is about to lapse, the remedy is to file an due, except transitional input tax, to the extent
appeal also with the CTA. that such input tax has not been applied against
output tax. (Sec. 112, NIRC)
Transitional input tax credit is a form of tax
credit, not tax refund 3. Locally produced or manufactured goods,
whether in their original state or as ingredients,
A transitional input tax credit is not a tax refund per any excise tax paid thereon shall be credited or
se but a tax credit. Prior payment of taxes is not refunded upon submission of proof of actual
required before a taxpayer could avail of exportation and upon receipt of the
transitional input tax credit. A tax credit is not corresponding foreign exchange payment. (Sec.
synonymous to tax refund. Tax refund is defined as 130(d), NIRC)
the money that a taxpayer overpaid and is thus
returned by the taxing authority. Tax credit, on the 4. National Internal Revenue Tax: a) erroneously
other hand, is an amount subtracted directly from or illegally assessed or collected; b) any penalty
one’s total tax liability. It is any amount given to a claimed to have been collected without
taxpayer as a subsidy, a refund, or an incentive to authority; or c) any sum allegedly to have been
encourage investment. (Fort Bonifacio Development excessively or in any manner wrongfully
Corporation v. Comm., G.R. No. 173425, 22 Jan. 2013) collected, may be recovered in a suit or
proceeding for that purpose. (Sec. 229 and Sec.
Statutory basis for tax refund 204(c), NIRC)
Tax refunds are not founded principally on PROOF FOR CLAIM OR REFUND
legislative grace. It is based on legal principle which
underlies in all quasi-contracts abhorring a person’s Evidence that may be presented that would best
unjust enrichment at the expense of another. The substantiate claim for tax refund
dynamic of erroneous payment of tax fits to a tee the
prototypic quasi-contract, solutio indebiti, which The pertinent invoices, receipts, and export sales
covers not only mistake in fact but also mistake in documents are the best and competent pieces of

evidence required to substantiate a taxpayer’s claim the Government.

for tax credit or refund. No evidence which has not
been formally offered shall be considered and NOTE: Compromise as amount of paid by the
where the pertinent invoices or receipts taxpayer to settle his tax liability is different from
purportedly evidencing the VAT paid by the compromise penalty which is the amount paid by
taxpayer were not submitted, the court may not the taxpayer to compromise tax violation and paid
determine the veracity of the amount of VAT that in lieu of criminal prosecution.
the taxpayer paid. Mere allegations of the figures in
the amended return are not sufficient proof of the Requisites for Compromise
amount of its refund entitlement. (Atlas
Consolidated Mining and Development Corporation v. 1. Tax liability of the taxpayer;
CIR, G.R. No.159490, 18 Feb. 2018) 2. An offer of the taxpayer of an amount to be paid
by him; and
Burden of proof for claim of refund 3. The acceptance (the CIR or the taxpayer) of the
offer in the settlement of the claim
GR: Being in the nature of a claim for exemption,
refund is construed in strictissimi juris against the Authority of the CIR to compromise taxes
entity claiming the refund and in favor of the taxing
power. This is the reason why a claimant must The CIR may compromise the payment of any
positively show compliance with the statutory internal revenue tax, when:
requirements provided for under the NIRC in order
to successfully pursue one's claim. (Winebrenner & 1. A reasonable doubt as to the validity of the
Iñigo Insurance Brokers, Inc. v. CIR, G.R. No. 206526, claim against the taxpayer exists provided that
28 Jan. 2015) the minimum compromise entered into is
equivalent to 40% of the basic tax (Doubtful
In order to discharge this burden, the law intends Validity).
the filing of an application for a refund to necessarily
include the filing of complete supporting documents 2. The financial position of the taxpayer
to prove entitlement for the refund. Otherwise, the demonstrates a clear inability to pay the
mere filing of an application without any supporting assessed tax provided that the minimum
document would be as good as filing a mere scrap of compromise entered into is equivalent to 10%
paper. (Hedcor v. CIR, G.R. No. 207575, 15 July 2015) of the basic assessed tax (Financial
Incapacity).
XPN: The contention that a tax refund takes on the
nature of a tax exemption does not apply where the MINIMUM COMPROMISE RATES
claim for refund is premised on erroneous payment Based on doubtful 40% of the basic
of tax. validity assessed tax
Based on financial 10% of the basic
POWER OF COMMISSIONER incapacity assessed tax
INTERNAL REVENUE TO COMPROMISE
Where the basic tax involved exceeds P1M or where
Compromise the settlement offered is less than the prescribed
minimum rates, the compromise shall be subject to
In case of tax assessment, compromise is the the approval of the National Evaluation Board
contract between the government and the taxpayer (NEB). In other words, compromise settlement
to settle the liability. lower than the minimum amount prescribed above
may be entered subject to the approval of NEB.
Court cannot compel the CIR to compromise in cases
when such is allowed, in order to assure that no Offers of compromise of assessments issued by the
improper compromise is made to the prejudice of

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Regional Offices involving basic deficiency taxes of competent evidence.

₱500,000 or less and for minor criminal violations
discovered by the Regional and District Offices, shall 8. Assessment was issued within the prescriptive
be subject to the approval by the Regional period for assessment as extended by the
Evaluation Board (REB). However, if the offer of taxpayer’s execution of Waiver of the Statute of
compromise is less than the prescribed rates, the Limitations the validity or authenticity of which
same shall always be subject to the approval of the is being questioned or at issue and there is
NEB. (RR No. 30-2002) strong reason to believe and evidence to prove
that it is not authentic. (Sec. 3.1, RR 30-2002)
Doubtful Validity
9. The assessment is based on an issue where a
There is reasonable doubt on the validity of the court of competent jurisdiction made an
assessment when: (J-A-B-A-W-F4) Adverse decision against the bureau, but for
which the Supreme Court has not decided upon
1. The delinquent account or disputed assessment with finality. (RR No. 8-2004)
is one resulting from a Jeopardy assessment.
Financial Incapacity
2. The assessment seems to be Arbitrary in
nature, appearing to be based on presumptions The offer for compromise based on financial
and there is reason to believe that it is lacking incapacity may be accepted upon showing that: (Co-
in legal and/or factual basis. I-N-B-A-L-D)
3. The taxpayer Failed to file an administrative 1. The taxpayer is a Compensation income earner
protest on account of the alleged failure to with no other source of income and the family’s
receive notice of assessment and there is reason gross monthly compensation income does not
to believe that the assessment is lacking in legal exceed the levels of compensation income
and/or factual basis. provided for Sec. 4.1.1. of RR No. 30-2002 and it
appears that the taxpayer possesses no other
4. The taxpayer Failed to file a request for leviable/distrainable assets, other than his
reinvestigation/reconsideration within 30 days family home.
from receipt of final assessment notice and
there is reason to believe that the assessment is NOTE: Sec. 4.1.1 of RR 30-2002: “If taxpayer is
lacking in legal and/or factual basis. an individual whose only source of income is
from employment and whose monthly salary, if
5. The taxpayer Failed to elevate to the CTA an single, is P10,500 or less, or if married, whose
adverse decision of the CIR, or his authorized salary together with his spouse is P21,000 per
representative, in some cases, within 30 days month, or less, and it appears that the taxpayer
from receipt thereof and there is reason to possesses no other leviable/distrainable assets,
believe that the assessment is lacking in legal other than his family home”.
and/or factual basis.
2. The taxpayer has been declared by any
6. The assessment were issued on or after January competent tribunal/authority/body/
1, 1988, where the demand notice allegedly government agency as Bankrupt or insolvent.
failed to comply with the Formalities
prescribed under Section 228 of the NIRC of 3. The corporation ceased operation or is already
1997. Dissolved.
7. Assessments made based on the “Best Evidence NOTE: The tax liabilities corresponding to the
Obtainable Rule” and there is reason to believe Subscription Receivable or Assets
that the same can be disputed by sufficient and distributed/distributable to the stockholders

representing return of capital at the time of Refund or tax credit with the BIR, Department
cessation of operation or dissolution cannot be of Finance One-Stop-Shop Tax Credit and Duty
compromised. Drawback Center (Tax Revenue Group or
Investment Incentive Group) and/or the courts;
4. The taxpayer, as reflected in its latest Balance
Sheet supposed to be filed with the Bureau of 3. If the taxpayer has an existing finalized
Internal Revenue, is suffering from surplus or Agreement or prospect of future agreement
earnings deficit resulting to Impairment in the with any party that resulted or could result to
original capital by at least 50%. an increase in the equity of the taxpayer at the
time of the offer for compromise or at a definite
5. That amounts payable or due to stockholders future time; or
other than business-related transactions which
are properly includible in the regular “Accounts 4. If the taxpayer failed to execute a Waiver of his
payable” are by fiction of law considered as part privilege of the secrecy of bank deposits under
of capital and not liability, and that the taxpayer Republic Act No. 1405 or under other general or
has no sufficient liquid asset to satisfy the tax special laws. (RR No. 30-2002)
liability.
Q: Can the CIR inquire into the bank deposits of
6. The taxpayer is suffering from a Net worth a taxpayer? If so, does this power of the
deficit (total liabilities exceed total assets) Commissioner conflict with R.A. 1405 (Secrecy
computed by deducting total liabilities (net of of Bank Deposits Law)? (1998 BAR)
deferred credits and amounts payable to
stockholders/owners reflected as liabilities, A: The CIR is authorized to inquire into the bank
except business related transactions) from total deposits of:
assets (net of pre-paid expenses, deferred
charges, pre-operating expenses, as well as 1. A decedent to determine his gross estate;
appraisal increases in fixed assets,) taken from 2. Any taxpayer who has filed an application for
the latest audited financial statements. compromise of his tax liability by means of
financial Incapacity to pay his tax liability. (Sec.
7. In the case of an individual taxpayer, he/she has 6(F), NIRC)
no other Leviable properties under the law
other than his family home. The limited power of the CIR does not conflict with
R.A. No. 1405 because the provisions of the NIRC
Requisites for financial incapacity as ground for granting this power is an exception to the Secrecy of
compromise settlement Bank Deposits Law as embodied in a later
legislation.
1. Clear inability to pay the tax; and
2. The taxpayer must waive in writing his privilege Furthermore, in case a taxpayer applies for an
of the secrecy of bank deposit under RA 1405 or application to compromise the payment of his tax
other general or special laws, which shall liabilities on his claim that his financial position
constitute as the CIR’s authority to inquire into demonstrates a clear inability to pay the tax
said bank deposits. (Sec. 6 (F), NIRC) assessed, his application shall not be considered
unless and until he waives in writing his privilege
Grounds for denial of compromise settlement under R.A. No. 1405, and such waiver shall
based on financial incapacity (C-R-A-W) constitute the authority of the CIR to inquire into the
bank deposits of the taxpayer.
1. If the taxpayer has a Tax Credit Certificate,
issued under the NIRC; Q: May the CIR compromise the payment of
withholding tax where the financial position of
2. If the taxpayer has a pending claim for tax the taxpayer demonstrates a clear inability to

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pay the assessed tax? (1998 BAR) incapacity which the CIR shall not accept unless
accompanied by a waiver of the secrecy of bank
A: NO. A taxpayer who is constituted as withholding deposits (Sec. 6 (F), NIRC) The waiver will enable the
agent who has deducted and withheld at source the CIR to ascertain the financial position of the
tax on the income payment made by him holds the taxpayer, although the inquiry need not be limited
taxes in trust for the government (Sec. 58 (D), NIRC) only to the bank deposits of the taxpayer but also as
and is obligated to remit them to the BIR. The to his financial position as reflected in his financial
subsequent inability of the withholding agent to statements or other records upon which his
pay/remit the taxes withheld is not a ground for property holdings can be ascertained.
compromise because the withholding tax is not
a tax upon the withholding agent but it is only a If indeed, the financial position of NX as determined
procedure for the collection of a tax. by the CIR demonstrates a clear inability to pay the
tax, the acceptance of the offer is legal and ethical for
Q: May the tax liability of a taxpayer be the ground upon which the compromise was
compromised during the pendency of an appeal? anchored is within the context of the law and the
(1996 BAR) rate of compromise is well within and far exceeds
the minimum prescribed by law which is only 10%
A: YES, as long as any of the grounds for a of the basic tax assessed.
compromise i.e., doubtful validity of assessment and
financial incapacity of taxpayer is present. A Q: Does the Court of Appeals have the power to
compromise of a tax liability is possible at any stage review compromise agreements forged by the
of litigation, even during appeal, although legal Commissioner of Internal Revenue and a
propriety demands that prior leave of court should taxpayer? Explain. (2010 BAR)
be obtained. (Pasudeco v. CIR, G.R. No. L-39387, 29
June 1982) A: As a general rule, the Court of Appeals does not
have the power to review compromise agreements
Q: After the tax assessment had become final and made between the Commissioner of Internal
unappealable, the CIR initiated the filing of a Revenue and the taxpayer considering that the
civil action to collect the tax due from NX. After Commissioner is vested with the authority to
several years, a decision was rendered by the compromise and such authority is exercised
court ordering NX to pay the tax due plus according to his discretion. Such authority should be
penalties and surcharges. The judgment became exercised in accordance with the CIR discretion and
final and executory but attempts to execute the courts have no power, as a general rule, to compel
judgment award were futile. him to exercise such discretion one way or another.
If the CIR abuses his discretion by not following the
Subsequently, NX offered the CIR a compromise parameters set by law, the CTA, not the CA, may
settlement of 50% of the judgment award, correct such abuse if the matter is appealed to it. In
representing that this amount is all he could case of arbitrary or capricious exercise by the CIR of
really afford. Does the CIR have the power to the power to compromise, the compromise can be
accept the compromise offer? Is it legal and attacked and reversed through judicial process. It
ethical? (2004 BAR) must be noted however, that a compromise is
considered as other matters arising under the NIRC
A: YES, the CIR has the power to accept the offer of which vests the CTA with jurisdiction and since the
compromise if the financial position of the taxpayer decision of the CTA is appealable to the Supreme
clearly demonstrates a clear inability to pay the tax. Court, the Court of Appeals is devoid of any power
(Sec. 204, NIRC) to review a compromise settlement forged by the
CIR.
As represented by NX in his offer, only 50% of the
judgment award is all he could really afford. This is
an offer for compromise based on financial

Limitations on the Power to Compromise a Tax B. Subject to approval of Evaluation Board:

Liability
1. When basic tax involved exceeds
The CIR is allowed to enter into a compromise only P1,000,000;
if the basic tax involved does not exceed P1M and 2. Where the settlement offered is less than
the settlement offered is not less than the the prescribed minimum rates (Sec. 204,
prescribed percentages. (Sec. 204 (A), NIRC) NIRC);
3. When the CIR is not authorized to
A. Minimum compromise rate: compromise.
1. For cases of “financial incapacity”
a. If taxpayer is an individual whose only Cases which may be compromised (1998, 2002,
source of income is from employment 2005 BAR) (D-A-N-C3)
and whose monthly salary, if single is
P10,500 or less or if married, whose 1. Delinquent accounts;
salary together with his spouse is 2. Cases under Administrative protest after
P21,000 per month, or less and it issuance of the Final Assessment Notice to the
appears that the taxpayer possesses no taxpayer which are still pending in the RO, RDO,
other available distrainable assets Legal Service, Large Taxpayer Service,
other than his family home – 10% Collection Service, Enforcement Service, and
b. If taxpayer is an individual without any other offices in the National Office;
source of income – 10% 3. Cases covered by pre-assessment notices, but
c. Taxpayer is under any of the following taxpayer is Not agreeable to the findings of the
conditions: audit office as confirmed by the review office;
4. Civil tax cases disputed before the courts;
I
i. zero net worth – 10% 5. Collection cases filed in courts; and

I
ii. negative net worth – 10% 6. Criminal violations except:

I
iii. dissolved corporations – 20% 4. Those already filed in courts; and

iv. already non-operating companies 5. Those involving criminal tax fraud. (Sec.3,
for a period of: RR 30-2002)
(a) 3 years or more as of the Cases which cannot be compromised

date of application for (F3-E-W-C-D)
compromise settlement -
10%; 1. Criminal tax Fraud cases confirmed as such by
(b) less than 3 years – 20% the CIR or his duly authorized representative.
2. Cases where Final reports of reinvestigation or
v. Surplus or earning deficit resulting reconsideration have been issued resulting to
to impairment in the original reduction in the original assessment and the
capital by at least 50% - 40% taxpayer is agreeable to such decision by
vi. Declared insolvent or bankrupt signing the required agreement form for the
unless taxpayer falls squarely purpose.
under any situation as discussed 3. Cases which become Final and executory after
above, thus resulting to the final judgment of a court, where compromise is
application of the appropriate rate requested on the ground of doubtful validity of
– 10% the assessment.
4. Estate tax cases where compromise is
2. For cases of “doubtful validity” – a requested on the ground of financial incapacity
minimum compromise rate equivalent to of the taxpayer.
40% of the basic tax assessed (Sec. 4, RR 30- 5. Withholding tax cases, unless the applicant –
2002) taxpayer invokes provisions of law that cast

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Remedial Law
doubt on the taxpayer’s obligation to withhold. the litigation, even during appeal, although legal
6. Criminal violations already filed in courts. propriety demands that prior leave of court
7. Delinquent accounts with duly approved should be obtained.
schedule of installment payments. (Sec. 3, RR
30-2002) Remedies in case the taxpayer refuses or fails to
follow the tax compromise
NOTE: The CTA may issue an injunction to prevent
the government from collecting taxes under a 1. Enforce the compromise
compromise agreement when such would be
prejudicial to the government. a. If it is a judicial compromise, it can be
enforced by mere execution. A judicial
When must compromise be made compromise is one where a decision based on
the compromise agreement is rendered by
1. Criminal cases – It must be entered into prior the court on request of the parties.
to the institution of the corresponding criminal b. Any other compromise is extrajudicial and
action arising out of a violation of the provisions like any other contract can only be enforced
of the NIRC. A compromise can never be entered by court action.
into after final judgment because by virtue of
such final judgment the Government had 2. Regard it as rescinded and insist upon original
already acquired a vested right. (Roviro v. demand. (Art. 2041, NCC)
Amparo, G.R. No. L- 5482, 05 May 1982)
Prescriptive period to enforce compromises
NOTE: A compromise validly entered into
between the CIR and the taxpayer prior to the As a rule, the obligation to pay tax is based on law.
institution of the corresponding criminal action But when, for instance, a taxpayer enters into a
arising out of a violation of the provisions of the compromise with the BIR, the obligation of the
NIRC becomes a bar to such criminal action. taxpayer becomes one based on contract.
(People v. Magdaluyo, G.R. No. L-16235, 20 Apr. Compromise is a contract whereby the parties, by
1965) reciprocal concessions, avoid litigation or put an
end to one already commenced. (Art. 2028, NCC)
Extent of Commissioner’s Power to Since it is a contract, the prescriptive period to
Compromise Criminal violations: enforce the same is 10 years based on Art. 1144, NCC
reckoned from the time the cause of action accrued.
a. Before the complaint is filed with the
Prosecutor’s Office – full discretion to Abatement and cancellation of tax liability
compromise except those involving fraud.
Grounds for abatement (Sec. 204(B), NIRC):
b. After the complaint is filed with the
Prosecutor’s Office but before the 1. The tax or any portion thereof appears to be
information is filed with the court – can still unjustly or excessively assessed:
compromise provided that the prosecutor (Wrong-S-L-I-C-E)
gives his consent.
a. The filing of the return/payment is made
c. After the information is filed with the court – at the Wrong venue;
no longer permitted to compromise with or i. The taxpayer fails to file the return
without the consent of the Prosecutor. and pay the tax on time due to:
(People v. Magdaluyo, G.R. No. L-1595, 20 ii. Substantial losses from prolonged
Apr. 1961) labor dispute;
iii. Force majeure; or
2. Civil cases – Before litigation or at any stage of iv. Legitimate business reverses;

NOTE: The abatement shall only cover the above. (Sec. 3, RR No. 13-2001)
surcharge and the compromise penalty and
not the interest imposed under Sec. 249, NOTE: For items a. to e., the abatement of
NIRC. the surcharge and compromise penalty
shall be allowed only upon written
b. There is Late payment of the tax under application by the taxpayer, signifying his
meritorious circumstances (i.e., Failure to willingness to pay the basic tax and interest
beat bank cut-off time, surcharge or basic tax only, whichever is applicable
erroneously imposed.); under prevailing circumstance.
c. The assessment is brought about or Q: Explain the extent of the authority of the CIR
resulted from taxpayer’s non-compliance to compromise and abate taxes. (1996 BAR)
with the law due to a difficult
Interpretation of said law; A: The authority of the CIR to compromise
encompasses both civil and criminal liabilities of the
d. The taxpayer fails to file the return and pay taxpayer. The civil compromise is allowed only in
the correct tax on time due to cases: (1) where the tax assessment is of doubtful
Circumstances beyond his control; validity, or (2) when the financial position of the
taxpayer demonstrates a clear inability to pay the
NOTE: The abatement shall only cover the tax. All criminal violations may be compromised
surcharge and the compromise penalty and not the except: (1) those already filed in court, or (2) those
interest. involving fraud.
e. The taxpayer’s mistake in payment of his The compromise settlement of any tax liability shall
tax is due to Erroneous written official be subject to the following minimum amounts: (1)
advice of a revenue officer. (Sec. 2, RR No. ten percent (10%) of the basic assessed tax in case
13-2001) of financial capacity; and (2) forty percent (40%) of
the basic assessed tax in other cases.
2. The administration and collection costs
involved do not justify the collection of the Where the basic tax involved exceeds P1 million or
amount due: (A-W-O-R-D) where the settlement offered is less than the
prescribed minimum rates, the compromise shall be
a. Abatement of penalties on assessment subject to the approval of the Evaluation Board
confirmed by the lower court but Appealed which shall be composed of the CIR and the four (4)
by the taxpayer to a higher court; Deputy Commissioners.
b. Abatement of penalties on Withholding tax The CIR may also abate or cancel a tax liability
assessment under meritorious when: (1) the tax or any portion thereof appears to
circumstances; have been unjustly or excessively assessed; or (2)
the administrative and collection costs involved do
c. Abatement of penalties on assessment not justify collection of the amount due. (Sec. 204,
reduced after Reinvestigation but taxpayer NIRC)
is still contesting reduced assessment;
d. Abatement of penalties on Delayed

installment payment under meritorious
circumstances; or
e. Such Other circumstances which the CIR

may deem analogous to the enumeration

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Remedial Law
Compromise vs. Abatement a. The right of the person to notice; and

b. The opportunity to be heard.
COMPROMISE ABATEMENT
The power to impose taxes is clothed with the
Nature
implied authority to devise ways and means to
Involves a reduction of Involves the accomplish collection in the most effective manner.
the taxpayer’s liability cancellation of the Without this implied power, the ends of government
through a mutual entire tax liability of a may fail. (CIR v. Pineda, G.R. No. L-22734, 15 Sept.
agreement. taxpayer. 1967)
Authorized Officer
CIR, REB, NEB CIR REQUISITES
Grounds
GR: Collection is only allowed when there is already
1. Reasonable doubt 1. The tax or any
a final assessment made for the determination of the
as to the validity of portion thereof
tax due.
assessment; or appears to be
2. Financial unjustly or
XPN: Judicial action to collect the tax liability is
incapacity of the excessively
permitted even without an assessment when the
taxpayer. assessed; or
taxpayer:
2. The
administration
1. Files a false or fraudulent return with intent to
and collection
evade the tax; or
costs involved do
2. Fails to file a return.
not justify the
collection of the
In the above cases, collection must be done within
amount due.
10 years after the discovery of falsity, fraud, or
omission.
NON-RETROACTIVITY OF RULINGS
However, once an assessment is made against the
Any revocation, modification, or reversal of any
taxpayer, the government cannot avail of the 10-
rules and regulations promulgated in accordance
year period in Sec. 222(A). If the assessment is
with the Tax Code (e.g., revenue regulations) shall made, then the period to collect is five years from
not be given retroactive effect if the revocation,
the assessment and not 10 years. (Ingles, 2015)
modification, or reversal will be prejudicial to the
taxpayer. (Sec. 246, NIRC)
In sum, as a rule, the government can only file a
proceeding in court to collect once the assessment
GOVERNMENT REMEDIES FOR has become final and unappealable.
COLLECTION OF DELINQUENT TAXES
Assessments are deemed final when:
Tax Collection
1. The taxpayer failed to file a protest thirty (30)
The government is given two ways to collect: days from receipt of the assessment;
2. After the 180-day period and the CIR has not yet
a. Summary or administrative remedies acted on the protest, the taxpayer fails to appeal
b. Judicial remedies it; or
3. After thirty (30) days from the receipt of the
The legislature may adopt any reasonable method decision of the CIR the taxpayer fails to appeal.
for the effective enforcement of the collection of
taxes, subject to:

Collectability of tax liability arises in the NIRC vs. Civil Code vs. Rules of Court
following instances:
The prescriptive period to assess or collect
1. Self-assessed tax shown in the return was not deficiency tax is governed by NIRC (a special law)
paid within the date prescribed by law; and not the Civil Code (a general law). The same can
be said between NIRC and the Rules of Court. Hence,
Internal revenue taxes are self-assessing and no claims for taxes may be collected even after the
further assessment by the government is distribution of the decedent’s estate. Claims for
required to create the tax liability. The taxpayer estate taxes are exempted from the application of
is immediately considered as delinquent with the statute of non-claims. (Ingles, 2015)
respect to the unpaid amount of tax.
SUMMARY
2. When final assessment is not protested
administratively within thirty (30) days from FALSE, FRAUDULENT,
the date of receipt; RETURN WAS MADE OR FAILURE TO FILE A
RETURN
3. Failure to question assessment served upon the
decedent’s heirs (Marcos II v. Court of Appeals, Collection with prior assessment
G.R. No. 120880, 5 June 1997);
Collection should be
4. Non-compliance with the condition laid in the made within 5 years
approval of protest - construed as if no protest from the date of
was filed; or assessment, either by:
Same
5. Failure to file a timely appeal to the CTA on the 1. Summary
final decision of the Commissioner or his proceedings; or
authorized representative on the disputed 2. Judicial
assessment. proceedings. (Sec.
222 (c), NIRC)
NOTE: Refer to “Protesting an Assessment”
Collection without prior assessment
under Taxpayer’s Remedies for complete
discussion on finality of assessment – page 782. Collection is within 10
years from discovery, of
PRESCRIPTIVE PERIODS; SUSPENSION OF the falsity, fraud or
RUNNING OF STATUTE OF LIMITATIONS omission to file a return.
GR: The prescriptive period to collect taxes due is Limited to purely

five years from the date of assessment. judicial remedies (Sec.
222(A))
XPNs:
1. False or fraudulent return with intent to evade
Computation of the prescriptive period
the tax: within 10 years from discovery without
need of assessment;
The assessment of the tax is deemed made and the
2. Failure or omission to file return: within 10
period for collection of the assessed tax begins to
years from discovery without need of
run on the date the assessment notice had been
assessment; or
released, mailed or sent by the BIR to the taxpayer.
3. Waiver in writing executed before the five-year
Thus, failure of the BIR to file a warrant of distraint
period expires: period agreed upon.
or serve a levy on taxpayer's properties nor file
collection case within the prescriptive period is

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Remedial Law
fatal. contractual obligation. (Republic v. Araneta, G.R. No.

L-14142, 30 May 1961)
Also, the attempt of the BIR to collect the tax
through its Answer with a demand for the taxpayer Q: May the collection of taxes be barred by
to pay the assessed DST in the CTA is not deemed prescription? Explain your answer. (2001 BAR)
compliance with the NIRC which provides that
assessed tax must be collected by distraint or levy A: YES. The collection of taxes may be barred by
and/or court proceeding within the prescribed prescription. The prescriptive periods for collection
period. (China Banking Corporation vs. of taxes are governed by the tax law imposing the
Commissioner of Internal Revenue, G.R. No. 172509, tax. However, if the tax law does not provide for
04 Feb. 2015) prescription, the right of the government to collect
taxes becomes imprescriptible.
Tax is deemed collected for purposes of
prescriptive periods ADMINISTRATIVE REMEDIES
1. If collection is through summary remedies 1. Tax lien;

(distraint and levy), when the government 2. Distraint of personal property; levy and sale of
avails of a distraint and levy procedures real property;
prescribed under NIRC. 3. Forfeiture of real property to the government
for want of bidder;
Distraint and Levy proceedings are begun by 4. Suspension of business operation; and
the issuance of warrant and service thereof to 5. Non-availability of injunction to restrain
the taxpayer. (BPI v. CIR, G.R. No. 139736, 17 Oct. collection of tax
2005)
TAX LIEN
2. If collection is through judicial remedies (civil
or criminal), when the government files the It is a legal claim or charge on property, personal or
complaint with the proper court. real, established by law as a sort of security for the
payment of tax obligations. (HSBC v. Rafferty, G.R.
A judicial action for the collection of a tax may No. L-13188, 15 Nov. 1918)
be initiated by:
Tax in itself is not a lien even upon the property
a. Filing a complaint with the proper regular against which it is assessed, unless expressly made so
trial court, or where the assessment is by statute.
appealed to the CTA; or
Nature and extent of tax lien
b. By filing an answer to the taxpayer’s
petition for review wherein payment of the When a taxpayer neglects or refuses to pay his tax
tax is prayed for. (PNOC v. CA, G.R. No. liability after demand, the amount shall be a lien in
109976, 26 Apr. 2005) favor of the Government from the time when the
assessment was made by the CIR until paid, with
Q: What is the prescriptive period where the interests, penalties, and costs that may accrue in
government action is on a bond which the addition thereto upon all property and rights to
taxpayer executes in order to secure the property belonging to the taxpayer. Provided, that
payment of his tax obligation? this lien shall not be valid against any mortgagee,
purchaser or judgment creditor until notice of such
A: Ten (10) years under Art. 1144 (1) of the Civil lien shall be filed by the CIR in the Register of Deeds
Code and not three (3) years under the NIRC. In this of the province or city where the property is
case, the Government proceeds by court action to situated or located (Sec. 219, NIRC)
forfeit a bond. The action is for the enforcement of a

The claim of the government predicated on a tax lien Distinctions among warrants of distraint,
is superior to the claim of a private litigant garnishment and levy
predicated on a judgment. The tax claim must be
given preference over any other claim of any other DISTRAINT GARNISHMENT LEVY
creditor, in respect of any and all properties of the
insolvent. (Republic v. Peralta, 150 SCRA 37) Subject matter
Personal Real
Personal
When tax lien is applied property property
property owned
owned by owned and
by the taxpayer
1. With respect to personal property – Tax lien and in in the
but in the
attaches when the taxpayer neglects or refuses possession possession
possession of the
to pay tax after demand. Thus, the tax lien of the of the
third party
attaches not from the service of the warrant of taxpayer taxpayer
distraint of personal property but from the Acquisition by the Gov’t
time the tax became due and payable.
Real
Personal
property
2. With respect to real property – from time of property Personal
subject to
registration with the Register of Deeds. distrained is property
levy is
purchased by garnished is
forfeited to
The residue, if any, goes back to the taxpayer or the purchased by the
the
owner of the property. Government Government and
Government
and resold to resold to meet
then sold to
Extinguishment of Tax Lien meet deficiency.
meet the
deficiency.
deficiency.
1. By payment or remission of the tax
Advertisement of Sale
2. By prescription of the right of government to
assess or collect Newspaper
3. By failure to file notice of such tax lien in the publication
No
office of Register of Deeds No newspaper is required
newspaper
4. By destruction of property subject to tax lien publication once a week
publication
5. By replacing it with a bond required for 3
required
consecutive
NOTE: A buyer in an execution sale acquires only weeks.
the rights of the judgment creditor.
Requisites for the exercise of distraint and levy
DISTRAINT AND LEVY (De-F-De-P)
Distraint is a summary remedy in which the 1. Taxpayer is Delinquent in payment of tax;

collection of tax is enforced on the taxpayer’s 2. There must be subsequent Demand to pay;
personal property. When enforced to taxpayer’s 3. Taxpayer Failed to pay delinquent tax on time;
personal property not in his possession, it is called and
garnishment. Meanwhile, levy is enforced on real 4. Period within which to assess and collect the
property. tax due has not yet prescribed.
Similarities between distraint and levy
1. Summary in nature
2. Requires notice of sale
3. May not be resorted to if the amount involved is
less than P100

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Remedial Law
Distraint Kinds of distraint
It is a summary remedy whereby the collection of A. Actual distraint – resorted to when at the time
tax is enforced on the goods, chattels or effects of the required for payment, a person fails to pay his
taxpayer (including other personal property of delinquent tax obligation (Sec. 207 (A), NIRC)
whatever character as well as stocks and other Distraint consists in the actual seizure and
securities, debts, credits, bank accounts and interest taking possession of personal property of the
in or rights to personal property.) The property may taxpayer.
be offered in a public sale, if taxes are not voluntarily
paid. How actual distraint effected:
Distinguish lien from distraint Upon failure to pay the delinquent tax at the
time required, the proper officer shall seize and
LIEN DISTRAINT distraint any goods, chattels, or effects, and the
personal property, including stocks and other
Directed Against What
securities, debts, credits, bank accounts and
The property subject to Need not be directed interests in and rights to personal property of
the tax against the property the taxpayer in sufficient quantity to satisfy the
subject to tax tax, expenses of distraint and the cost of the
To Whom Directed subsequent sale. (Sec. 207 (A), NIRC)
The property itself The property should be
regardless of the presently owned by the Procedure that must be observed in
present owner of the taxpayer effecting actual distraint:
property
1. Commencement of distraint proceedings
Q: Who is authorized to issue the warrant of by the CIR or his duly authorized
distraint? representatives or by the revenue district
officer as the case may be;
A:
1. CIR or his duly authorized representative – if 2. Service of warrant of distraint upon
the amount involved is in excess of P1 million; taxpayer or upon any person in possession
or of the property;
2. Revenue District Officer – if the amount To whom warrant of distraint is served:

involved is P1 million or less (Sec. 207 (A), NIRC)
a. As to tangible goods:
Effect of service of warrant of distraint (or levy) i. The owner or person in
possession; or
Its timely service suspends the running of the ii. Someone of suitable age and
prescriptive period to collect the tax deficiency in discretion at the dwelling or place
the sense that the disposition of the attached of business of such person.
properties might well take time to accomplish,
extending even after the lapse of the statutory b. As to stocks and/or securities:
period for collections. (Republic v. Hizon, G.R. No. i. Upon the taxpayer; and
130430, 13 Dec. 1999) ii. President, manager, treasurer or
other responsible officer of the
corporation.
c. As to debts/credits:
i. Upon the person owing the debt; or

ii. The person having control over the the buyer and to the corporation,
credit or his agent. company or association which issued
the stocks or other securities. Upon
d. As to bank accounts: receipt of the copy of the bill of sale, an
i. Upon the taxpayer; and entry of transfer should be made in the
ii. The president, manager, treasurer company or association’s book and a
or other responsible officer of the corresponding certificate of stock shall
bank. be issued if required.
6. Residue over and above what is
NOTE: Distraint of bank accounts is required to pay the entire claim,
called garnishment. including expenses, shall be returned to
the owner of the property sold.
3. Posting of notice in not less than two (2) 7. The officer making the sale shall make a
public places in the municipality or city and written report of the proceedings to the
notice to taxpayer specifying the time and CIR within 2 days after the sale (Sec. 211,
place of sale and the articles distrained; NIRC)
4. Release of distrained property upon 6. Purchase by government at sale upon

payment prior to sale; distraint.
The taxpayer may recover his property The CIR or his deputy may purchase the
prior to the consummation of the sale if, at property in behalf of the National
any time prior to the consummation of the Government for the amount of taxes,
sale, all proper charges are paid to the penalties and cost due thereon when the
officer conducting the sale, the goods or bid amount for the property under distraint
effects distrained shall be restored to the is:
owner. (Sec. 210, NIRC) a. Not equal to the amount of tax; or
b. Very much less than the actual market
5. Sale at public auction to be held not less value of the property offered for sale.
than twenty (20) days after notice to the (Sec. 212, NIRC)
owner or possessor of the property and
publication or posting of such notice: and Garnishment
Rules governing the sale It is the taking of personal properties, cash or

sums of money owned by a delinquent taxpayer
1. The sale must be held at the time and which is in the possession of a third party (i.e.,
place stated in the notice. bank accounts.) Bank accounts are garnished by
2. It may be conducted by the Revenue serving a warrant upon the taxpayer and upon
Officer or through a licensed commodity the president, manager, treasurer, or other
or stock exchange. responsible officer of the bank.
3. If the sale is conducted by the Revenue
Officer, it must be a public auction and Q: Is the BIR authorized to issue a warrant of
the property shall be sold to the highest garnishment against the bank account of a
bidder for cash. taxpayer despite the pendency of taxpayer’s
4. If the sale is through a licensed protest against the assessment with the BIR
commodity or stock exchange, it must or appeal with the CTA? (1998 BAR)
be with the approval of the CIR.
5. In case of stocks and other securities, A: YES, the BIR is authorized to issue a warrant
the officer making the sale shall execute of garnishment against the bank account of a
a bill of sale, which shall be delivered to taxpayer despite the pendency of protest. (Yabes

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Remedial Law
v. Flojo, GR L-46954, 20 July 1982) Nowhere in the Specific cases when Notice or Warrant of
NIRC is the CIR required to first, rule on the Constructive Distraint over the Property/ies of a
protest before he can institute collection Taxpayer may be Issued (L-R-T-C-U-B-A)
proceedings on the tax assessed. The legislative
policy is to give the CIR much latitude in the 1. Taxpayer has a record of Leaving the
speedy and prompt collection of taxes because it Philippines at least twice a year, unless
is in taxation that the Government depends to such business is justified and/or connected
obtain the means to carry on its operations. with his trade, business or profession;
NOTE: The taxpayer may request that the 2. Taxpayer applying for Retirement from
warrant be lifted. The CIR may, in his discretion, business has a huge amount of assessment
allow the lifting of the order of distraint. He may pending with the BIR;
ask for a bond as a condition for the cancellation
of the warrant. (Sec. 207, NIRC) NOTE: An assessment is huge if the amount
thereof is equal to or bigger than the net
B. Constructive distraint – a preventive remedy worth or equity of the taxpayer.
which aims at forestalling a possible dissipation
of the taxpayer’s assets when delinquency sets 3. Taxpayer has record of Transferring his
in. No actual tax delinquency of the taxpayer is bank deposits and other personal
necessary before the same is resorted to by properties in the Phil. to any foreign
government. country except if taxpayer is a banking
institution;
How constructive distraint is effected:
4. The BIR receives information or Complaint
It is effected by requiring the taxpayer or any pertaining to undeclared income in an
person having possession of the property: amount of more than 30% of gross sales,
receipt or revenue, and there is enough
1. To sign a receipt covering the property reason to believe that said information is
distrained; correct as when it is supported by
2. To obligate himself to preserve it intact and substantial and credible evidence;
unaltered; and
3. Not to dispose of it without the express 5. There is big amount of Undeclared income
authority of the CIR. known to the public and to the BIR and
there is a strong reason to believe that the
Cases when constructive distraint is proper taxpayer will hide or conceal his property;
(A-R-L)
6. Taxpayer keeps Bank deposits and other
1. Retirement from any business subject to properties under the name of other
the tax; persons, whether or not related to him, and
2. Intending to Leave the Philippines or to the same are not under any lawful fiduciary
remove his property therefrom; or to hide or trust capacity; or
or conceal his property; or
3. Intending to perform any Act tending to 7. Taxpayer uses Aliases in bank accounts
obstruct the proceedings for collecting the other than the name for which he is legally
tax due or which may be due from him. (Sec. and/or popularly known. (RMO No. 5-
206, NIRC) 2001)

In case taxpayer or person having possession of Levy

the property refuses or fails to sign the receipt
It is the seizure of real property and interest in or
The officer shall: rights to such properties for the satisfaction of taxes
due from the delinquent taxpayer.
a. Prepare a list of such property; and
b. Leave a copy of such list in the premises where When levy on real property may be made
the property is located, in the presence of two It may be made before, simultaneously or after the
(2) witnesses. distraint of personal property of the same taxpayer.
Property levied upon by the order of a competent It may be effected by serving upon the taxpayer a
court can be subsequently distrained. Such property written notice of levy in the form of a duly
may, with the consent of such court, be authenticated certificate prepared by Revenue
subsequently distrained, subject to the prior lien of District Officer containing: (D-N-A)
the attachment creditor. (CIR v. Flores, G.R. No. L-
9675, 28 Sept. 1957) 1. Description of the property upon which levy is
I
made;
Distinction between the two kinds of distraint 2. Name of the taxpayer;
I
3. Amount of tax and penalty due.
I
ACTUAL CONSTRUCTIVE
Procedure that must be observed in levy of real
As to Nature
property
Summary Remedy
1. Preparation of a duly authenticated certificate
As to Subject Matter which shall operate with force of a legal
Personal Property execution throughout the Philippines.
As to Availability 2. Service of the written notice to the:

Cannot be availed of if tax is not more than P100.
a. Delinquent taxpayer;
To Whom Made b. If he is absent from the Philippines, to his
agent or the manager of the business in
Any taxpayer
Delinquent taxpayer. respect to which the liability arose;
(delinquent or not).
c. If there be none, the occupant of the
How Made property; or
Mere prohibition from d. The Registry of Deeds of the place where
Taking of possession the property is located shall also be
disposing the
or transfer of control. notified.
property.
How Effected Q: Suppose an auction sale of land for the
Requiring taxpayer to collection of delinquent taxes was held, is
Leaving a list of
sign a receipt or notice by publication enough or must there
property distrained or
leaving a list of such be personal service of notice?
service of warrant.
property.
A: Notice by publication is not enough there
As to Effect on Collection
must be a personal notice to the registered
Merely to prevent the owner of the property for cases involving an
Immediate step to
taxpayer from auction sale of land for the collection of
collect.
disposing his property. delinquent taxes are in personam. (Talusan v.
Tayag, G.R. No. 133698, 04 Apr. 2001)

e

Remedial Law
NOTE: Failure of the heirs to receive a copy of Person entitled to the possession of the
notices of levy does not bar its effectivity since property levied:
the taxpayer is in fact the estate. (Marcos II vs.
CA, G.R. No. 120880, 05 June 1997) The owner shall not be deprived of the
property until the expiration of the redemption
3. Advertisement of the time and place of sale period and shall be entitled to rents and other
within twenty (20) days after the levy by income until the expiration of the period for
posting of notice and by publication for three redemption. (Sec. 214, NIRC)
consecutive weeks.
Final deed of purchaser:
4. Sale at a public auction.
In case the taxpayer shall not redeem the
The taxpayer may recover his property prior to property, the Revenue District Officer (RDO)
the consummation of the sale. At any time shall, as grantor, execute a deed conveying to
before the day fixed for the sale, the taxpayer the purchaser so much of the property as has
may discontinue all proceeding by paying the been sold, free from all liens of any kind
taxes, penalties and interest (Sec. 213, NIRC) whatsoever, and the deed shall succinctly recite
all the proceedings upon which the validity of
5. Redemption of property sold. the sale depends. (Sec. 204, NIRC)
Within 1 year from the date of sale, the taxpayer 6. Further distraint and levy.
or anyone for him, may pay to the Revenue
District Officer the total amount of the The remedy of distraint and levy may be
following: repeated if necessary until the full amount of
the tax delinquency due including all expenses
a. Public taxes; is collected from the taxpayer. (Sec. 217, NIRC)
b. Penalties; Otherwise, a clever taxpayer who is able to
c. Interest from the date of delinquency to the conceal most of the valuable part of his property
date of sale; and would escape payment of his tax liability by
d. Interest on said purchase price at the rate sacrificing an insignificant portion of his
of 15% per annum from the date of sale to holdings.
the date of redemption.
NOTE: Further distraint and levy does not apply
NOTE: If the property was forfeited in favor of when the real property was forfeited to the
the government: the Redemption price shall government for it is in satisfaction of the claim
include only the taxes, penalties and interest in question. (Sec. 215, NIRC)
plus costs of sale – no interest on purchase price
since the Government did not “purchase” the FORFEITURE OF REAL PROPERTY
property, for it was forfeited. (Sec. 214, NIRC)
BIR is allowed to forfeit the property subject to levy
Effect of the redemption to the property sold: only if:
It shall entitle the taxpayer, the delivery of the 1. There is no bidder; or

certificate issued to the purchaser and a 2. The bid amount is insufficient to pay the taxes,
certificate from the Revenue District Officer penalties and costs. (Sec. 215, NIRC)
that he has redeemed the property. The
Revenue District Officer shall pay the purchaser Forfeiture
the amount by which such property has been
redeemed and said property shall be free from It is the divestiture of property without
lien of such taxes and penalties. (Sec. 214, NIRC) compensation, in consequence of a default or

offense. It transfers the title to the specific thing Difference between forfeiture and seizure to
from the owner to the government. Also, there enforce a tax lien
would no longer be any further levy for such would
be for the total satisfaction of the tax due. FORFEITURE SEIZURE
Ownership
NOTE: The erring taxpayer may still be criminally
prosecuted even if the property has already been Ownership is Taxpayer retains
forfeited. (Garcia v. Collector of Internal Revenue, transferred to the ownership of property
G.R. No. L-44372, 3 Nov. 1938) Government seized
Disposition of the proceeds of sale
Redemption of forfeited property Excess not returned to Excess returned to
the taxpayer taxpayer
The Register of Deeds shall transfer the title of
forfeited property to the Government without Suspension of business operation
necessity of a court order.
The CIR or his authorized representative is
Within one (1) year from the date of forfeiture, the empowered to suspend the business operations and
taxpayer, or any one for him may redeem said temporarily close the business establishment of any
property by paying to the CIR or Revenue Collection person for any of the following violations:
Officer the full amount of the taxes and penalties,
together with interest thereon and the costs of sale, 1. In the case of VAT-registered person:
but if the property be not thus redeemed, the a. Failure to issue receipts or invoices;
forfeiture shall become absolute. (Sec. 215, NIRC) b. Failure to file a VAT return as required
under Sec. 114; or
Resale of Real Estate Taken for Taxes c. Understatement of taxable sales or receipts
by 30% or more of his correct taxable sales
The CIR shall have charge of any real estate obtained or receipts for the taxable quarter.
by the Government in payment or satisfaction of
taxes, penalties or costs or in compromise or 2. Failure of any person to Register as required
adjustment of any claim. under Sec. 236: The temporary closure of the
establishment shall be for the duration of not
The CIR may: less than 5 days and shall be lifted only upon
compliance with whatever requirements
1. Sell and dispose of the same of public auction prescribed by the CIR in the closure order. (Sec.
upon the giving of not less than twenty (20)-day 115 NIRC)
notice; or
2. Dispose of the same at private sale with prior JUDICIAL REMEDIES
approval of the Secretary of Finance.
1. Ordinary civil action
In either case, the proceeds of the sale shall be 2. Criminal action
deposited with the National Treasury, and an
accounting of the same shall rendered to the In case the CIR decides adversely or if no decision
Chairman of the Commission on Audit. (Sec. 216, yet after the lapse of 180 days, the taxpayer may
NIRC) appeal to the CTA Division, 30 days from the receipt
of the decision or from the lapse of the 180 days
otherwise the decision shall become final, executory
and demandable. (RCBC v. CIR, G.R. No. 168498, 24
Apr. 2007)

e

Remedial Law
If the decision is adverse to the taxpayer, he may file 3. In case of local taxes, RTCs may issue an
a motion for reconsideration or new trial before the injunction upon a suit questioning their validity.
same Division of the CTA within fifteen (15) days
from notice thereof. NOTE: In the case of the collection of local taxes,
there is no express prohibition in the Local
NOTE: MR is required to be filed to the division that Government Code prohibiting courts from
decided the case, before filing Petition for Review issuing an injunction to restrain local
with the CTA En Banc. governments from collecting taxes. Such
statutory lapse or intent, however it may be
In case the resolution of a Division of the CTA on a viewed, may have allowed preliminary
motion for reconsideration or new trial is averse to injunction where local taxes are involved.
the taxpayer, he may file a petition for review with (Angeles City v. Angeles Electric Corporation, G.R.
the CTA En Banc. No. 166134 (2010))
The ruling or decision of the CTA En banc may be Rationale: The Lifeblood doctrine requires that the
appealed with the Supreme Court through a verified collection of taxes cannot be enjoined, without
petition for review on certiorari pursuant to Rule 45 taxation, a government can neither exist nor endure.
of the 1997 Rules of Civil Procedure.
Q: Standard Insurance Co., Inc., a non-life
NOTE: Refer to “Court of Tax Appeals” for complete insurance company, received from the BIR a
discussion on judicial remedies – page 851. Final Decision on Disputed Assessment (FDDA)
dated November 25, 2014, declaring its liability
NO INJUNCTION RULE; EXCEPTIONS for the DST deficiency, including interest and
compromise penalty, totaling P400,000.00.
GR: No court shall have the authority to grant an Standard, after its request for reconsideration
injunction to restrain the collection of any national was denied, filed a Civil Case before the RTC with
internal revenue, tax, fee or charge. (Sec. 218, R.A. prayer for issuance of a temporary restraining
8424) order (TRO) or of a writ of preliminary
injunction and for the judicial determination of
XPNs: the constitutionality of Section 108 and Section
1. Filing of Injunction with the CTA as an incident 184 of the NIRC with respect to the taxes to be
to its appellate jurisdiction: paid by non-life insurance companies. The RTC
promulgated a judgment permanently enjoining
a. Showing that collection of the tax may the BIR, its agents, representatives, or any
jeopardize the interest of the government persons acting on its behalf from proceeding
and/or the taxpayer; (Sec. 2, Rule 10, with the implementation or enforcement of
Revised Rules of the Court of Tax Appeals Sections 108 and 184 of the NIRC against
[RRCTA]) Standard. Decide on the propriety of the RTC
b. Deposit of the amount claimed or file a ruling.
surety bond in an amount not more than
double the disputed amount or value; A: The injunctive relief is not available as a remedy
(Section 6, Rule 10, RRCTA); or to assail the collection of a tax. Sec. 218 of the NIRC
c. Showing by taxpayer that appeal is not provides that no court shall have the authority to
frivolous nor dilatory. grant an injunction to restrain the collection of any
national internal revenue tax, fee or charge imposed
2. The SC, on exceptional cases of suits by the NIRC. Also, decisions or rulings of the
questioning the constitutionality of a tax law. BIR/CIR, among others, assessing any tax, or
(Tolentino v. Executive Secretary, G.R. Nos. levying, or distraining, or selling any property of
115455 et. al, 25 Aug. 1994) taxpayers for the satisfaction of their tax liabilities
are immediately executory, and their enforcement

is not to be suspended by any appeals thereof to the earlier (under the NIRC) and the 12% for 2018
CTA unless in the opinion of the CTA, the collection onwards (under TRAIN).
by the BIR or the Commissioner of Customs may
jeopardize the interest of the Government and/or Delinquency interest
the taxpayer, in which case the CTA at any stage of
the proceeding may suspend the said collection and There shall be assessed and collected on the unpaid
require the taxpayer either to deposit the amount amount, interest at the rate of 20% per annum until
claimed or to file a surety bond for not more than the amount is fully paid, which interest shall form
double the amount. part of the tax, in case of failure to pay:
The adequate remedy upon receipt of the Final 1. Amount of tax due on any return required to be
Decision on Disputed Assessment (FDDA) was not filed, or
the action for declaratory relief but an appeal taken 2. Amount of tax due for which no return is
in due course to the CTA. (Commissioner of Internal required, or
Revenue v. Standard Insurance Co., Inc., G.R. No. 3. Deficiency tax, or any surcharge on interest
219340, 07 Nov. 2018) thereon on the due date appearing in the notice
and demand of the CIR. (Sec. 249 (C), NIRC)
CIVIL PENALTIES
NOTE: Deficiency interest on deficiency income tax
DELINQUENCY INTEREST AND accrues and commences from the date of
DEFICIENCY INTEREST assessment as shown in the assessment notice.
Interests Interest on extended payment
Kinds of interest in income taxation: There shall be assessed and collected interest at the
rate of 20% per annum on the tax or deficiency tax
1. Interest in general – There shall be assessed or any part thereof unpaid from the date of notice
and collected on any unpaid amount of tax, and demand until it is paid:
interest at the rate of double the legal interest
rate for loans or forbearance of any money in 1. If any person required to pay the tax is qualified
the absence of an express stipulation as set by and elects to pay the tax on installment, but fails
the BSP, from the date prescribed for payment to pay the tax or any installment hereof, or any
until the amount is fully paid. (Section 249 (A), part of such amount or installment on or before
NIRC) the date prescribed for its payment; or
2. Deficiency interest – Any deficiency in the tax 2. Where the CIR has authorized an extension of
due shall be subject to interest at the rate of time within which to pay a tax or a deficiency
12% per annum (double the legal interest rate tax or any part thereof. (Sec. 249 (D), NIRC)
prescribe in Sec. 249 (A), which interest shall be
assessed and collected from the date prescribed CIVIL PENALTIES OR SURCHARGE
for its payment until the full payment thereof,
or upon issuance of a notice and demand by the A civil penalty, also known as surcharge, is imposed
CIR, whichever comes earlier. (Sec. 249 (B), by law as an addition to the basic tax required to be
NIRC) paid. (Sec. 248, NIRC)
NOTE: The new interest rate shall be applied only in A surcharge is a civil administrative sanction
cases of deficiency taxes for 2018 onwards. If the provided as a safeguard for the protection of the
deficiency taxes were for earlier taxable period, it State revenue and to reimburse the government
shall be computed pro-rata i.e., 20% for 2017 and for the expenses of investigation and the loss
resulting from the taxpayer’s fraud. A surcharge

e

Remedial Law
added to the main tax is subject to interest. BIR, then the 50% surcharge will be
imposed. Thus:
Two categories of civil penalties
i. No demand from the BIR and the
1. 25% Surcharge (F-T-O-P) taxpayer pays, albeit late, 25%
ii. With demand by the BIR, 50%
a. Failure to File any return and pay the tax (Ingles, 2015)
due thereon as required under the
provisions of the NIRC or rules and b. False or fraudulent return is willfully made.
regulations on the date prescribed.; or
The fraud contemplated by law is actual
b. Failure to pay the deficiency tax within the fraud, not constructive fraud. It must be
Time prescribed for its payment in the intentional fraud, consisting of deception
notice of assessment.; or willfully and deliberately done or resorted
to. Negligence, whether slight or gross, is not
In cases of late payment of a deficiency tax equivalent to fraud with intent to evade the
assessed, taxpayer shall be liable for the tax contemplated by law. (Aznar vs. CTA, G.R.
delinquency interest incident to late No. L-20569, 23 Aug. 1974)
payment. (RR 18-2013)
Q: Businessman Lincoln filed an income tax
c. Unless otherwise authorized by the CIR, return for 1993 showing business net income of
filing a return with an internal revenue P350,000 on which he paid an income tax of
officer Other than those with whom the P61,000. After filing the return, he realized that
return is required to be filed.; or he forgot to include an item of business income
in 1993 for P50,000.
d. Failure to Pay the full or part of the amount
of tax shown on any return required to be Being an honest taxpayer, he included this
filed under the provisions of the NIRC or income in his return for 1994 and paid the
rules and regulations, or the full amount of corresponding income tax thereon. In the
tax due for which no return is required to examination of his 1993 return the BIR
be filed, on or before the date prescribed for examiner found that Lincoln failed to report this
its payment. (Sec 248 (A), NIRC) item of P50,000 and assessed him a deficiency
income tax on this item, plus a 50% fraud
NOTE: There is no 25% surcharge when tax surcharge.
return is filed on time and paid the full
amount stated in the return, but a. Is the examiner correct?
subsequently discovered that the return b. If you were the lawyer of Lincoln, what
filed and the amount paid was erroneous. would you have advised your client before
(Ingles, 2015) he included in his 1994 return the amount of
P50,000 as 1993 income to avoid the fraud
2. 50% Surcharge surcharge?
c. Considering that Lincoln had already been
a. Willful neglect to file the return within the assessed a deficiency income tax for 1993
period prescribed.; or for his failure to report the P50,000 income,
what would you advise him to do to avoid
If the taxpayer voluntarily files the return the penalties for tax delinquency?
without notice from BIR, only 25% d. What would you advise Lincoln to do with
surcharge shall be imposed for late filing and regard to the income tax he paid for the
late payment of tax. But if the taxpayer files P50,000 in his 1994 return? In case your
the return after prior notice in writing from remedy fails, what is your other recourse?

(1995 BAR) Q: A domestic corporation failed to withhold and

remit the tax on income received from
A: Philippine sources by a non-resident foreign
a. The examiner is correct in assessing a corporation.
deficiency income tax for taxable year 1993 but
not in imposing the 50% fraud surcharge. The In addition to the civil penalties provided for
amount of all items of gross income must be under the NIRC, a compromise penalty was
included in gross income during the year in imposed for violation of the withholding tax
which received or realized (Sec. 38, NIRC) The provisions. May the Commissioner of Internal
50% fraud surcharge attaches only if a false or Revenue legally enforce the collection of
fraudulent return is willfully made by Lincoln compromise penalty? (2000 BAR)
(Sec. 248, NIRC) The fact that Lincoln included it
in his 1994 return belies any claim of A: NO. There is no showing that the compromise
willfulness but is rather indicative of an honest penalty was imposed by the Commissioner of
mistake which was sought to be rectified by a Internal Revenue with the agreement and
subsequent act that is the filing of the 1994 conformity of the taxpayer. (Wonder Mechanical
return. Engineering Corporation v. Court of Tax Appeals, et.
al., G.R. Nos. L-22805 & L-27858, 30 June 1975)
b. Lincoln should have amended his 1993 income
tax return to allow for the inclusion of the NOTE: In an appeal before CTA, if the taxpayer
P50,000 income during the taxable period it shows his willingness to pay compromise penalty,
was realized. such penalty may be collected as part of the
judgement (CIR v. Guerrero, G.R. No. 19074, 31 Jan.
c. Lincoln should file a protest questioning the 1967)
50% surcharge and ask for the abatement
thereof. FRAUD PENALTY
d. Lincoln should file a written claim for refund In case of willful neglect to file the return within the
with the CIR of the taxes paid on the P50,000 period prescribed by this Code or by rules and
income included in 1994 within 2 years from regulations, or in case a false or fraudulent return is
payment pursuant to Sec. 229 of the NIRC. willfully made, the penalty to be imposed shall be
Should this remedy fail in the administrative fifty percent (50%) of the tax or of the deficiency tax,
level, a judicial claim for refund can be in case any payment has been made on the basis of
instituted before the expiration of the two-year such return before the discovery of the falsity or
period. fraud.
COMPROMISE PENALTY Provided, that a substantial under-declaration of

taxable sales, receipts or income, or a substantial
It is a certain amount of money which the taxpayer overstatement of deductions, as determined by the
pays to compromise a tax violation. Compromise Commissioner pursuant to the rules and regulations
penalties are paid in lieu of criminal prosecution to be promulgated by the Secretary of Finance, shall
and cannot be imposed in the absence of a showing constitute prima facie evidence of a false or
that the taxpayer consented thereto. If an offer of fraudulent return.
compromise is rejected by the taxpayer, the
compromise penalty cannot be enforced through an Provided, further, that failure to report sales,
action in court or by distraint and levy. The CIR receipts or income in an amount exceeding thirty
should file a criminal action if he believes that the percent (30%) of that declared per return, and a
taxpayer is criminally liable for violation of the tax claim of deductions in an amount exceeding thirty
law as the only way to enforce a penalty. percent (30%) of actual deductions, shall render the
(Dimaampao, 2015) taxpayer liable for substantial under-declaration of

e

Remedial Law
sales, receipts or income or for overstatement of

deductions, as mentioned herein. (Sec. 248(B),
NIRC)

Figure 1. Process of Assessment from Self-Assessment, Issuance of Preliminary Assessment and Notice,
to Protesting Final Assessment Notice
S£LiF-ASSliSSJ.tNT
t,,fadeby tfte taxpayer_ The wpa}\er rompute-:!1hl.:!i own micllahl!lty,
1flle:s:
h~s o ret:um.
Thl.:!iIs not ap;plLcable1111case tbe ta:qiiiyer· rlldlnot Ille h s rfll.lm.
O:flAUTRORl'li'Y
:LETTl!IR
The RD o:rCIR ssues a Li\ to the Revenue Offlller (IRO}empowe:rlng
h m to eicamLneand scru nl:z.ea ta:q)iiyer's looolts.
Pe:riool:120 dia.}'!I to l!'lramtnu!_ _)
fr-.eque:mey:
Generally, only 011£e a llml'hle year
l?rtor to l?s:ri,ta:q)ayer
may m ke vdlunta:ry
payment:!!(RMO 11-
2014-)
When: then! Mists

snffll!llent ha:!ilsto asse:s:s In cas.esof:
tbe taxpayer ffll" any
L M'athemalllcalerir-or
deil.deru:vtax 2- Hxdse taicha,s nM l!,e,en IP Ldl
3. D sc-repan.cy between tax
thhell!ll and ta:1: artually
PRJEUMINIAR ~emitted
ASSESSM N. I\IOiilCE 4_ Exempt per:!IOn sell:!i,, trades
(P ) artkles to :rion-=mp per:!iO:ris
Form: In wru ln,gand S. Carrlet!Iover what Ltprevfoll:!lly
should state IB;gal
and opted!as tax refund
raeru,albases
'
I
I
I
T:upa.yer may eply to
the !?AN thin 15 d!a:ys..
Effect o.flfall:ureto r,eply:
I
I Ta:xp.a.yeris in defiil.ull
I
I and a FAN shall be
t ssnedl. ,'
'---------------~
lfll l MS~M Nil' I\IOiilCE AN)/Fll) :M!AL mmi:R OF
ID MA D P:Llll)
ate: FLD and FAN'should!al ys go roget:her
lssnedllly: CIR or rl'ulyauthor[~ repr,ese:mta w,
Fom1: In 'l'o'rltlng wltb legal & factual bases, Ollhem•l.:!ie
vo d.
When: with n 15 days from ~~plyo:rlap~ofpe odto Jeplyof
wpayer (mll:!lt be· thin tbe 3yr pr-es:crlpthreperiool to appeal)
Ta:qiayer may 11rntest Taxpayer 1111.a.y

oot pmllest
'l'olithtri10 da,y:s wltbln 30 days
IEffe<lt:As:sessllli!Rt
Modes: Reque:s:t0or
Rernnslder-a~lonor bernrnes llnal Ml!ll:utory,.
Re,quest1ffll" and demandablt>_B~~n
proceeds wltb en lttlll..::_;
I
Retnve:s:ga~on

Remedial Law
Figure 2. Government Remedies if FLD/FAN becomes final
Assessment.< bemme final upan taxpayer's:

1. ,allure 10 Hie protest within 30 days from recelpr of the FLD/FAH (l'I.D/f'AN becomes final and eirecutory,
2.
and demandable); and
f'a Uure III appealto meCTA:
a. Wlthln 30days from recelp( or dedslon denytngtbe protest; or
b. Wlthl.n 30days from the e,cplrJdoo of the 180-d.ly pef1od (Inaction)
_J
-----------------
.r
Collettlon
Prescctotlve
period·5 yearsfromassessment
(XPN:Incase of t.J.lseor h-audulent retums-
10 years)
.......__~---- ----✓
( ( )
-
Taxpayer volunm:rlly Taxpayer does no1
-
pays VOlunrarlly pay
I
TazUen
Attaches wb•n the
tl>x becomes
'I Dlstraln t or
personal
property
.r
Lery of real
property J Suspensionof
business
operallolt$
µayable, or Lnc.ase l&!a.cmm.ll!

of real proµerty. t:ssued
dlst:ralnt by;; Pr'P"ratiM o( doly
when Ills CIR/represencatlv autlienUcated certiRcate which
-elf-.P IM; RDOIf
I\
reglSlered with Ille shall opero1e with fo,ce of a ~I
Register or Deeds <PIM euanion lhrou;ghou1 II•• Pli.
,-----\:::.r==~-...,1
\Vrltten oodce Ill delinquent
Sel'\lice of wamiot of dlstralnt

To tnpayerorperson In possesslo.n or
bUp.l)lff
1rbe Is absen~ Mt '""""-8.>"/.ag,,o~
oc,cupant of 1be property, or
)
bank (In case of bank accounts. Regi<= ol De~ 10 that order.
otherwt<e known as garnlslun<!nt).or
corporation (In case or sh3res <>fSl<llk)
NOTE:This Is actual dtstralnt
'
Adve.rdsement
of lime of sale
Posting of notice In not

less man 1WD public C'.onsl.ntfli\'e
distraU\tIs
pl.aC<!S. app~cablewti,n: S.alr id p.uhUc il.u.d:iaa
:Cwwi:nl:.
Time and pl.ace L Taxpayerl.au recordof Wlu:11;.Not I= than 20 days
le>viqg Pli •• ~:ISi lwi<t a i1.t\n- nobc:eta th.eowner.
of sale. NOTE:r,cwemmmtmo1y
year
2. Ta,q>3y~r1srourt,,g pun:h;ase tho propeny
bu,I,_.., with 1ttruiy dmr.uncd.ThlSIS forfeiblre
att.eSDl'h~:ll.H
3. Taxpay,;r is 1rons("'1'ing
Taxpayer may pay all S;ale.at pabl.ic ;auctioa localbaJ1kdoposits co
\\'hen: Not less Lh;m 20 foreign rountrles I
~'(
charges prior to
·,....____
(bys ;aft.ernotlt'e to the m~y ~y ;;alldt;ugcs 'l';uq,ay,,,-may n,,loem
consummation of sale. In 'bXPl)'ff'
(
ownl!!.r.
pnor to amswruuJDD ol s;dc.
tho property ..,kJ vnthm
such c.ase,
me dl:rtralned NOT~ Govt!mmeot ~ ODC~ar::.ft.erp;aymt!nt
Pf"perly will be released. In SlXhgse, the d1st~necl
\....._ ____ _ purdi.ue the prt,Jl«ty

dl:St:nln.ed..
propertyWJI berel~ed..
\
,of p:ibllc tu:~ pe:n.1lhles.
mtcrest.d:c.
..,,..,,,.
f ' UNIVERSITY OF SANTO TOMAS 828
;_._) 2022 GOLDEN NOTES
Figure 3. Taxpayer’s remedies upon issuance of FLD/FAN
TAXPAYERPROTESTSFLO/F within 30 days

Form: [n .. .-!ting
Content: Adrlress.e<I
to the CIRor duly authorized
repre.enwlve: state bases of protest
REQUESTFOR REIN\lllSTIGATION
RllQU&STFO CONSIDERATION
o need to submit addltloo.al ""ld'.eru:e
l R_e..evalwillooon the basis of newly discovered
or addl.tlo""I o,vlden<ie
Sltbmlt "Felevant ,-- Falls to submlt

supporting dorume.nts" "r-elewnt supporting
within 60 days from date documents'" "'1thln 60
of flllng the protest days
Duly utborized
mpTeSeiltalive of Fil.,D,/FANbe<iome.j
CIR denies wftttln ftaal!.
BIRpr-oceedsto
180 days (with
•taternent of tacts. collec-tlon.
appllcable 1,iw)
Elevate
Appeal protest
toCTA
with C!IR
wl~hl.n within
30.t.lys 30day,:
Duly
antbo I'm<! CIRdenles
.-epresenta:tiv within 180
e o'fCIR denies days (with C[Rdoes not
within mo statement of decide within
.t.iys(wllh farts,, 180d"Y" (
statement of appllcable
I Fall\rn>to appeal
ta;i,,w]
appllcabl~
I i,,w),
I
makes FLO/FAN
final and .,.,...,u.tory
\.
~
kppeaito Appealt:-,
theCTA
wltflln 30 Appeal to Awalt the
111.eCTA- I lftbe 180•30-
day period has
the CTA wltflln30
the dn1y days after ~oal lapsedi,the
l
wltbln30 declslon days after
authorized lapse of wpaye;r has no
l repr:"tatl )
180-day
per~
d:i,ys
oftheCIR J lapse of
180-dayj
period
other choice but
to await the
llnal d""lsloo to
ha"" a can•e of
action
.,

Remedial Law
Figure 4. Taxpayer’s remedies for tax refund or tax credit
r,,,,.------,
Claim granted Refund check must be
,,,,. Refundidu!c.kor claJmed/encashed or
taxcredlt TCCmUSI be utlll2ed
Rerundof certificate ls Issued wltbln S years
unutillnd ln,put
VATattributable
to zero-rated
sales
Ad:ml11.Claim Is
' / l )
flied wldtln 2 years CL11mdenied
from the dose or Note: ibe lapse or90-
FIie judicial claim
day period or denial
the tauble quartjtt wlth CTAv.1thln
when tihe zero- ortheCIRls
30da.ysfmm
rated sale was recelpt of denial or mandatory and
m:Mle Jurtsdlctlonal before a
lapse oJ90-day
~nod for CIR to Judlc"11cla lm may be
,.
-
flied
TAX
REFUND
declde
- ,
CREDIT
r
Clalm granted, Refu:ndcheck must
be clalmed/imcasbed
llerund check or tax
or TCCmust be
Refund/credJr or
taxes errom!ou.sly
paid
Admln. cfalm ls
credit rertiflcate Is
Issued
l--
utlll:zedwithin ~
yem J
ftled W1thln2 years
from date of ,,,. ~-----....
payment ( or flllng ~ l
-
of final adjusbnent Clalm dimled:
r,ecum) Flle Judktal clalm with NOTE: Both admln I
CTAv.11:tlln &Judlc:laldalm I
t 30 days from mu.st be llled
recel;pt of denlal or
lapse of 00-day
I w\cbJn 2 years I
period for ,(JR to , ____ ,,I
decide
iUld.
2 :,,ears from the
close of lhe taxable
quarter when the
l zenrrated
were made
sales

2022 GOLDEN NOTES
REFUND
B. TAX REMEDIES UNDER THE LOCAL
GOVERNMENT CODE OF 1991 1. A written claim for refund or credit is filed with
the local treasurer.
2. A claim or proceeding is then filed with the

TAXPAYER’S REMEDIES court of competent jurisdiction (depending
upon the jurisdictional amount) within 2 years
PROTEST from the date of the payment of such tax, fee, or
charge, or from the date the taxpayer is entitled
1. When the correct tax, fee, or charge is not paid, to a refund or credit. (Sec. 196, LGC)
the Local Treasurer shall issue a notice of
assessment within the applicable prescriptive NOTE: The filing of a written claim for refund
period, (Sec. 195, LGC) stating the nature of the with the local treasurer is a condition precedent
levy, the amount of deficiency, the surcharges, for maintaining a court action. If the local
interests and penalties. treasurer does not act on the written claim for
refund and the 2-year statute of limitation is
2. Within 60 days from receipt of the assessment, about to expire, the taxpayer should forthwith
the taxpayer may file a written protest of the initiate the court action and consider the
assessment with the local treasurer contesting treasurer’s inaction as a denial of his claim for
the assessment; otherwise, the assessment shall refund.
become final and executory.
Q: The City Treasurer of Manila issued a SOA to
3. The local treasurer shall decide the protest Philippine Beverage Partners, Inc. showing that
within 60 days from the time of its filing. If the it is liable to pay local business taxes and
local treasurer finds the assessment to be wholly regulatory fees for the first quarter of 2007 in
or partly correct, he shall deny the protest the total amount of P2,930,239.82. Philippine
wholly or partly with notice to the taxpayer. Beverage Partners protested the assessment
arguing that Tax Ordinance Nos. 7988 and 8011,
4. The taxpayer shall have 30 days from the receipt amending the Revenue Code of Manila (RCM),
of the denial of the protest or from the lapse of have been declared null and void. It further
the 60-day period prescribed herein within argued that the collection of local business tax
which to appeal with the court of competent under Sec. 21 of the RCM in addition to Sec. 14 of
jurisdiction otherwise the assessment becomes the same code constitutes double taxation. The
conclusive and unappealable. (Sec. 195, LGC) City Treasurer of Manila, however, denied
Philippine Beverage Partners’ protest.
5. The competent court referred to is the
RTC/MTC/MetC/MCTC which acts in the After payment of the amount being collected,
exercise of its original jurisdiction, depending on Philippine Beverage Partners filed a written
the amount. Local tax cases originally decided by claim for refund of erroneously/illegally
the MTC/MetC/MCTC may be appealed to RTC. collected tax with the City Treasurer of Manila
amounting to P2,424,158.93. Further, it filed a
NOTE: When an assessment is seasonably complaint for the revision of the SOA and for
disputed, the collection of tax, fee, or chrage refund or credit of LBT erroneously/illegally
subject matter of the assessment should be held collected with the RTC which ruled in the
in abeyance pending final determination thereof. affirmative. The City Treasurer of Manila raised
two points on its arguments:
a. Can a taxpayer who protested an

assessment later on institute a judicial

e

Remedial Law
action for refund? made aware of the pending tax liability. The
b. May the alleged deficiency taxes be used to local treasurer cannot simply collect deficiency
offset claim for refund? taxes for a different taxing period by raising it
as a defense in an action for refund of
A: erroneously or illegally collected taxes. (Ibid)
a. YES. On the first point, the Court has settled in
the case of City of Manila v. Cosmos Bottling ACTION BEFORE THE SECRETARY OF JUSTICE
Corporation that a taxpayer facing an
assessment issued by the local treasurer may 1. Administrative appeal questioning the
protest it and alternatively: (1) appeal the constitutionality or legality within 30 days from
assessment in court, or (2) pay the tax, and the effectivity of the tax ordinance or revenue
thereafter, seek a refund. In this case, after measure.
respondent received the assessment on January
17, 2007, it protested such assessment on 2. Secretary of Justice shall render a decision
January 19, 2007. within 60 days from date of receipt of the
appeal.
After payment of the assessed taxes and
charges, respondent wrote petitioner another 3. Within 30 days after receipt of the decision or
letter asking for the refund and reiterating the the lapse of 60-day period without action from
grounds raised in the protest letter. the Secretary of Justice, aggrieved party may
file appropriate proceedings with a court of
Then, on February 6, 2007, respondent received competent jurisdiction.
the letter denying its protest. Thus, on March 8,
2007, or exactly thirty (30) days from its receipt NOTE: Such appeal shall not have the effect of
of the denial, respondent brought the action suspending the effectivity of the ordinance and
before the RTC of Manila. Hence, respondent the accrual of the payment of the tax, fee, or
was justified in filing a claim for refund after charge levied therein. (Sec. 187, LGC)
timely protesting and paying the assessment.
(City Treasurer of Manila v. Philippine Beverage NOTE: The three separate periods (30-30-60)
Partners, Inc., G.R. No. 233556, 11 Sept. 2019) are given for compliance as a pre-requisite
before seeking redress in a competent court.
b. NO. On the second point, Sec. 195 of the LGC (Jardine Davies Insurance Brokers, Inc. vs.
provides that "When the local treasurer or his Aliposa, G.R. No. 118900, 27 Feb. 2003)
duly authorized representative finds that
correct taxes, fees, or charges have not been ASSESSMENT AND COLLECTION OF LOCAL
paid, he shall issue a notice of assessment TAXES
stating the nature of the tax, fee, or charge, the
amount of deficiency, the surcharges, interests GR: Local taxes, fees, or charges shall be assessed
and penalties." within 5 years from the date they became due. No
action for the collection of such taxes, fees, or
Thus, suffice it to say that the issuance of a charges, whether administrative or judicial, shall be
notice of assessment is mandatory before the instituted after the expiration of such period.
local treasurer may collect deficiency taxes
from the taxpayer. XPN: In case of fraud or intent to evade the payment
of taxes, fees, or charges, the same may be assessed
The notice of assessment is not only a within 10 years from discovery of the fraud or intent
requirement of due process but it also stands to evade payment. (Sec. 184 (a) and (b), LGC).
as the first instance the taxpayer is officially

Protest of Assessment
Taxpayer T p y r doe noc prot wt thin 60

(Written p tm d.J>
LT thin s sm nt s fin.ii and cutory)
lfLT n protest
1
merltor w;, LT ssues a
notice or ca ncell n
m n (Cane II
11\3)'be whole or p;i
0 d.Jysfro T.:i,q>ayerd
pro< or f {Efl ct: A nt I
y odbe un ppe Llble, and e
oourt or compel en Jurlsd
Appc, CTA ~
F1lrMR th CTADrvHlon inc:,s,,ohdvrl"Rdraslon ,.,1lu11 lS
~
Pdl IOO orm,rwwsthtbrCTA ..,l,o,.,.lfMRudrnird.
~
Appe 1,owsc

Remedial Law
NOTE: The competent court referred to is the 2. Civil remedies (Secs. 173 & 174, LGC)
RTC/MTC/MetC/MCTC which acts in the exercise of a. Distraint of personal property
its original jurisdiction, depending on the amount. b. Levy of real property
Local tax cases originally decided by the c. Judicial action
MTC/MetC/MCTC may be appealed to RTC.
Levy of real property may be simultaneously
CLAIM FOR REFUND OF TAX CREDIT FOR issued with the warrant of distraint
ERRONEOUSLY OR ILLEGALLY COLLECTED TAX,
FEE, OR CHARGE The levy of a real property may be made before or
simultaneous with distraint. In case the levy on real
Grounds for the refund of local government property is not issued before or simultaneously
taxes, fees or charges: (Sec. 196, LGC.) with the warrant of distraint on personal property,
and the personal property of the taxpayer is not
1. Erroneously collected sufficient to satisfy his delinquency, the provincial,
2. Illegally collected city or municipal treasurer, as the case may be, shall
within 30 days after execution of the distraint,
Procedure for the refund of local government proceed with the levy on taxpayer’s real property.
taxes, fees or charges (Sec. 176, LGC)
1. A written claim for refund or credit is filed with LGU has right to purchase real property
the local treasurer. advertised for sale, when
2. A claim or proceeding is then filed with the
court of competent jurisdiction (depending 1. No bidder for the real property
upon the jurisdictional amount) within two (2) 2. If the highest bid is for an amount insufficient to
years from the date of the payment of such tax, pay the taxes, fees, or charges, related
fee, or charge, or from the date the taxpayer is surcharges, interests, penalties and costs
entitled to a refund or credit (Ibid.)
Local government may repeat the remedies of
REMEDIES OF LOCAL GOVERNMENT UNITS distraint and levy
1. Local government lien The remedies by distraint and levy may be repeated
if necessary until the full amount due, including all
Local taxes, fees, charges, and other revenues expenses, is collected. (Sec. 184, LGC)
constitute a lien, superior to all liens, charges or
encumbrances in favor of any person, Penalty of the local treasurer for failure to issue
enforceable by appropriate administrative or and execute the warrant:
judicial action, not only upon any property or
rights therein which may be subject to the lien Automatically dismissed from service after notice
but also upon property used in business, and hearing, if found guilty of abusing the exercise
occupation, practice of profession or calling, or thereof by competent authority, without prejudice
exercise of privilege with respect to which the to criminal prosecution under the RPC and other
lien is imposed (Sec. 173, LGC) applicable laws. (Sec. 177, LGC)
The lien may only be extinguished upon full Exempt properties from distraint or levy
payment of the delinquent local taxes fees and
charges including related surcharges and The following property shall be exempt from
interest. distraint and the levy, attachment or execution
thereof for delinquency in the payment of any local
tax, fee or charge, including the related surcharge
and interest: (To-Be-ChoP-LBM)

1. Tools and implements necessarily used by the

delinquent taxpayer in his trade or
employment;
2. One horse, cow, carabao, or other Beast of

burden, such as the delinquent taxpayer may
select, and necessarily used by him in his
ordinary occupation;
3. His necessary Clothing, and that of all his family;
4. Household furniture and utensils necessary for

housekeeping and used for that purpose by the
delinquent taxpayer, such as he may select, of a
value not exceeding P10,000.00;
5. Provisions, including crops, actually provided

for individual or family use sufficient for 4
months;
6. The professional Libraries of doctors,

engineers, lawyers and judges;
7. One fishing Boat and net, not exceeding the total

value of P10,000.00, by the lawful use of which
a fisherman earns his livelihood; and
8. Any Material or article forming part of a house

or improvement of any real property. (Sec. 185,
LGC)

e

Remedial Law
CIVIL REMEDIES IN GENERAL
Summary for Procedure for Distraint
Failure of the person owing any local tax, fee, or charge to pay the same at the lime required (Sec. 17S /al,LGC)
Written notice to the taxpayer concerned

Contents: lnfonning to sei.zeor confiscate any personal property belongjn,gto that person or subject to tbe lien.
Hmy much· In sufficient quantity to satisfy the tax, fee, or cbarge in question, togetber with any increment thereto inc;dent to
delinquency and the expense of seizure.
Notice fmm • LT or his deputy.
Issuance or a duly authenticated certificate

Conieat:s· The fact of delinqlllencyand the amounts or the tax, Fee,or charge and penalty due.
Purpose: Sucb certi6cate shall serve as sufficient warrant for the,distroint ·Of personal property.
~ LT or his deputy. (Sec. 17S {a], LGC)
J
lllakinjpm account of the goods, chattels, or effects distrained (including a sratement of the rum demanded and a note of the time
and place of sale)
~ Theofficerexecuting the distraint
l
NOTE: A copy of which signed by himself shall be left either ,..;th (I) the owner or person from whose possession the goods,
chattels. or effects are taken.or (2) at the dwelling or place of business of that person and with someone of suitable a.geand
discretion. (Sec 175 {b], LCC)
Notifiation to public or distraint and sale

The officer shall cause a notillcation to be exhibited in not less than three public and conspicuous places (one of which shall beat
the office or the chief executive of the LCU) in the territory of the LCU where the distraint is made, specifying the time and place of
sale, and the articles distrained. (Sec.175 [c]. LGC),
....--
r- 7
Sold within 120 days
Manner: At a public auction to UnsoJd within 120 days
Effect: The same shall be con!ddered
the h i.ghestbidder for cash.
as sold to the LGUconcerned. BeforeselUng and within 120
For how mlilC'h:Amount of the days. taxpayer was able Lo pay
assessment made thereon by the all proper charges
Committee on Appraisal .Effea.:'rhe goodsor effects
11
Report by LT Fffertof ..Uremed sir transactjno " d istrajned shall be restored to
To: Chief Executive of the I.GU To the extent of the appraised the owner.
.e.e.ct.n.d:.
Within S days after the amount. the ta-. delinquencies shall
sale. he cancelled. (Sec. 17S fe], LGCJ
r I
Application or proceeds to satisfy th.e tax, including the
surcharges, interert_ and other penalties incident to delinquency,
and the expenses of the distrainl and sale.
NOTE, 11ie expenses chargeable upon the seizure and sale shall
embrace only the actual expenses or the seizure and pr•eservation of
the property pending the sale, and no charge shall be imposed far
the services of the local officer or his deputy. (Sec. 17S{fl, LGC)
L J
funher distrain_tof other

eturn -orthe excess to the
properties wnerofthe property sold
!t Proceeds of the sale are If: Proceeds of the sale
insufficient to satisfy the
claim.
[ exceed all diarges. _J
..,,..,,,.
; _)'
f
__
2022 GOLDEN NOTES
Summary of Procedure for Levy
:Failure o:ftbe person o (lg:1u1ylom1 tax, f~. or d1::irGeto pay the s::irneat the me req,11lr-ed.[Siec.176,
LCC]1
l.e-vy oheal property before. s:lmu1taneously Ill' ::ifter dislralnt o:fperso(la! property belo.rigtrigta llhe
de;li(lq,11e;rittaxpayer.
Pmparalion of a ituly a.uthe:(ltlmted llli!:ftlfl'cate

.BJ£;.LT
C:-o:rite(lb::
The name oflh.e taxpayer .ind lite amount oOhe tIDC:. fee;.or d'larGe,,and pen.ally due Ii-omhim_
(Soec.176, l..£C)
Preparation of a ituly authe:ntlmted reltlffcate

.BJ£;.LT
C:or1tet1n::
lbe name of lhe ta:xpa!i·erand lhe :m1ourit oHhe tIDC:.
fee;.o·r cbarGe• .and penalty rl'ue l'rom blllL
(Sec. 176, LCC)
Sen: re/malling ofwdtten noti.lle 11'.fdlele-'11}'

t:o:
(1) As:s;e-ssll'.r
(2)1 :Registei? of Deeds of the provir1ce o:r clty wltel'I! the pr-ope.rty1lslocated who s:ba1l11r1ootatethe
le'i')' ot1 llhe tIDC:
rl~daratlo:ri and oenlllcate of le oftlle property. :respel!:tive[y.and
(:3) Delinquent ta:iq,ayev or. If he be absent fr-omthe Philippines, to hl.s age;(ll o:r tib.emana. I!!?of
the bu.slru!SS1lnrespect to whlrlt the llab lily arose, or If then! be r1one.to the oompant o-rtibe
p~ll'pe:ny in ques ot1 (Sec. 1;,;r,.U'C)
Report on levy Mthln lO days: from levy by tbe le-'l','Lrig (.~ec. 176, U'C)
offi1'.l!f'.
Advertisement of tib.es:1le wlthltl 30 days after levy.

Pos (lg r1otlce .Intbe rn In e-ritr rice ofllhe mur1 c pal b11Lldlngor clty hall and consplruous: pbace In llhe
borangay wber,e tbe r,eaalproperty Is:located
~ubllcalilon once a Yli"eek fol' llhre-emnseiculll\'e weeks l11a newspaper of ge11Hal dr-culation ln the LGU
wher-e llhe property s loc-ated. (Sec. 1 iB..UC)
N'OTE: Befm-ethe
date of sale;.tbe
o 11er ma.ystay lihe
prooeedit1gs:by
Wi,mldjill:illfrll:ienlly so.Id:L1' sl ll i;,urdme- lhJ!!
payi(lg the dellnguen.t
Sale ofl~led pr-o;pertythrough sa1Jor pmpeny ru--.• bal ol tbe-I.GUii':(a) llien; iS oo
ta:;:.1lnter-est.arid
artlllll (Seo:.178, tGC) id,k,tr; (b) tt.J!!lligt~I ud iS itisuffici!l l ro IP3.l'lliJ!!
expense of.sale. [
deiiCiJ!!t'lC)"
ll»! (Sec JZ~ u.q
L._ ::r::
L
:11:e;port
oJ'lthe .iale
• :oodays afll!J'lliJ!!~le !ssu::mce oftbe certlflmte of Sllle to the
"lt-'"'111.u.uc.'·LT or
Ii.isdepul}' purc.flaser (Siec.1 iB..LCC)
•. •• ie Sa,1gg,m11m ~DMertli!d
Wammt of 1.e-vyIs Issued by I.T. a~ a legal

Proceeds: of s.1leI~ applied to delfoq,11e;rit execution lri the 1.CUconcemed. (Se,c_2S8,
ta:1:,expense-:s.and dlarges.
WC)i
r-----1
NOi : [f pr,oceeds are I !Redeemed. wltbln one year from date of
lri ex:cess.s:uc-hIs Not ~edeemed: A final deed of.sale sit.all
returned to lhe sale:
he Issued t.olhe purnhase,r f sold}/ LGU
taxpayer. Ollherwls:e. Pro;perty i--erums to taxpayer; a. certificate
(If unsold) (Sec 1.BiJ,U'C)
levy ma.ybe repeated of:rerlm1ptlm1 ls l.s:s:ued.
u11tUfull amount due
Js m.lleicted
.....

Remedial Law
JUDICIAL ACTION a case instituted for judicial action. (China Banking

Corp. v. City Treasurer of Manila, G.R. No. 204117, 01
LGU’s enforcement of the judicial remedy in July 2015)
collection of taxes
Q: Doña Evelina, a rich widow engaged in the
The LGU concerned may enforce the collection of business of currency exchange, was assessed a
delinquent taxes, fees, charges and other revenues considerable amount of local business taxes by
by civil action in any court of competent jurisdiction. the City Government of Bagnet by virtue of Tax
The civil action shall be filed by the local treasurer Ordinance No. 24. Despite her objections
within 5 years from delinquent taxes, fees or thereto, Doña Evelina paid the taxes.
charges become due. (Sec. 183, LGC) Nevertheless, unsatisfied with said Tax
Ordinance, Doña Evelina, through her counsel
Mode of appeal from the decision of the Regional Atty. ELP, filed a written claim for recovery of
Trial Court involving local taxes said local business taxes and contested the
assessment. Her claim was denied, and so Atty.
R.A. 9282 expanded the jurisdiction of the CTA to ELP elevated her case to the RTC.
include, among others, the power to review by
appeal decisions, orders or resolutions of the RTC in The RTC declared Tax Ordinance No. 24 null and
local tax cases originally decided or resolved by void and without legal effect for having been
them in the exercise of their original or appellate enacted in violation of the public action
jurisdiction. (City of Iriga vs Camarines Sur Electric requirement of tax ordinances and revenue
Cooperative, Inc., G.R. No. 192945, 05 Sept. 2012) measures under the Local Government Code
(LGC) and on the ground of double taxation. On
The authority to exercise either original or appellate appeal, the CTA affirmed the decision of the RTC.
jurisdiction over local tax cases depended on the No motion for reconsideration was filed and the
amount of the claim. In cases where the amount decision became final and executory.
sought to be refunded is below the jurisdictional
amount of the RTC, the MetC, MTC, MCTC are a. If you are Atty. ELP, what advice will you give
clothed with ample authority to rule on such claims. Doña Evelina so that she can recover the
subject local business taxes?
In cases where the RTC exercises appellate b. If Doña Evelina eventually recovers the local
jurisdiction, it necessarily follows that there must be business taxes, must the same be considered
a court capable of exercising original jurisdiction – income taxable by the national government?
otherwise there would be no appeal over which the (2014 BAR)
RTC would exercise appellate jurisdiction. The
Court cannot consider the City Treasurer as the A:
entity that exercises original jurisdiction not only a. Move for the execution of the judgment which
because it is not a “court” within the context of B.P. has already become final.
Blg. 129, but also because B.P. 129 expressly
delineates the appellate jurisdiction of the Regional b. YES, subject to the tax benefit rule. The local
Trial Courts, confining as it does said appellate business tax paid is a business-connected tax
jurisdiction to cases decided by MeTC, MTC, and hence, deductible from gross income. If at the
MCTC. Verily, unlike in the case of the CA, B.P. 129 time of its deduction it resulted to a tax benefit
does not confer appellate jurisdiction on the RTC to Doña Evelina, then the recovery will form
over rulings made by non-judicial entities. The RTC part of gross income to the extent of the tax
exercises appellate jurisdiction only from cases benefit on the previous deduction. (Section
decided by the MeTC, MTC, and MCTC in the proper 34(C)(1),NIRC)
cases. The nature of the jurisdiction exercised by
these courts is original, considering it will be the
first time that a court will take judicial cognizance of

PRESCRIPTIVE PERIOD P 1 million or above.

Over appeals from the judgments,
Period of assessment of local taxes resolutions or orders of the RTC in
Appellate tax collection cases originally
Local taxes, fees, or charges shall be assessed within decided by them in their respective
5 years from the date they become due. (Sec. 194 (a), jurisdiction.
LGC) CTA EN BANC
a. Decisions or resolutions over
Period of collection of local taxes
petitions for review of the Court
in Divisions in the exercise of its
Local taxes, fees, or charges may be collected within
exclusive appellate jurisdiction
5 years from the date of assessment by
over local taxes decided by the
administrative or judicial action. (Sec. 194 (c), LGC)
RTC in the exercise of their
original jurisdiction;
Suspension of Running of Prescriptive Period
Appellate
b. Over petitions for review of the
The running of the periods of prescription provided
judgments, resolutions or orders
in the preceding paragraphs shall be suspended for
of the RTC in the exercise of their
the time during which: (PRO)
appellate jurisdiction over tax
collection cases originally
1. The treasurer is legally Prevented from making
decided by the MeTC, MTC and
the assessment of collection;
MCTC in their respective
2. The taxpayer Requests for a reinvestigation and
territorial jurisdiction.
executes a waiver in writing before expiration
of the period within which to assess or collect;
and REAL PROPERTY
3. The taxpayer is Out of the Country or otherwise
cannot be located. (Sec. 194(d), LGC) REMEDIES OF LOCAL GOVERNMENT UNITS
MTC Issuance of delinquency notice for real property

tax payment
If principal amount of taxes, fees,
exclusive of charges and penalties
Original When real property tax or other tax imposed
does not exceed P300,000 or
becomes delinquent, the local treasurer shall
P400,000 in Metro Manila.
immediately cause a notice of the delinquency to be
RTC posted at the main hall and in a publicly accessible
If principal amount of taxes, fees and conspicuous place in each barangay of the LGU
exclusive of charges and penalties concerned. Notice of delinquency shall also be
Original exceeds P300,000 or P400,000 in published once a week for two (2) consecutive
Metro Manila, provided, the amount weeks, in a newspaper of general circulation in the
is less than 1 million. province, city, or municipality.
The RTC shall exercise appellate
jurisdiction over all cases decided LGU’s lien
Appellate by the MeTC, MTC, and MCTC in
their respective territorial Guidelines in the exercise of local government
jurisdiction. lien
CTA DIVISION
1. A legal claim on the property subject on the real
If principal amount of taxes, fees
Original property tax as security for the payment of tax
exclusive of charges and penalties is
obligation.

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Remedial Law
2. It is constituted on the property subject to the Effect of the redemption of the delinquent
tax from the date the RPT accrued, i.e., January property
1 (Sec. 246, LGC)
3. It is superior to any lien, mortgage, or Such payment shall invalidate the certificate of sale
encumbrance of any kind whatsoever (Sec. 246, issued to the purchaser and the owner of the
LGC) in favor of any person, irrespective of the delinquent real property or person having legal
owner or possessor thereof. (Sec. 257, LGC) interest therein shall be entitled to a certificate of
4. It is enforceable by administrative or judicial redemption which shall be issued by the local
action. (Sec. 257, LGC) treasurer or his deputy. (Ibid.)
5. It may be extinguished only upon payment of
the tax and related interests and expenses. (Sec. NOTE: From the date of sale until the expiration of
246 and 257, LGC) the period of redemption, the delinquent real
property shall remain in possession of the owner or
REMEDIES IN GENERAL person having legal interest therein who shall be
entitled to the income and other fruits thereof.
Remedies of the LGUs for the collection of real
property tax Effect of failure to redeem
1. Administrative action In case the owner or person having legal interest

a. Exercise of lien on the property subject to fails to redeem the delinquent property, the
tax treasurer shall execute a deed conveying to the
purchaser said property, free from lien of the
Superior to all liens, charges or delinquent tax, interest due thereon and expenses of
encumbrances and is enforceable by sale.
administrative or judicial action. It is
extinguished only upon payment of tax Right of Pre-emption
and other expenses (Sec. 257, LGC)
At any time before the date fixed for the sale, the
b. Levy on the real property subject of the tax taxpayer may stay the proceedings by paying the
c. Distraint of personal property taxes, fees, charged, penalties, and interests.
2. Judicial action Distraint of personal property how effected

under real property taxation
Right of redemption of owner of the delinquent
property When notice of delinquency has been accordingly
posted and published, the local treasurer shall
Within 1 year from the date of sale, the owner of proceed to sell the personal property of the
the delinquent real property or person having legal delinquent taxpayer in order to satisfy his unpaid
interest therein, or his representative, shall have the obligation. (Sec. 254, LGC)
right to redeem the property upon payment to the
local treasurer of the: Q: Quezon City published on January 30, 2006 a
list of delinquent real property taxpayers in 2
1. Amount of the delinquent tax newspapers of general circulation and posted
2. The interest due thereon this in the main lobby of the City Hall. The notice
3. The expenses of sale from the date of requires all owners of real properties in the list
delinquency to the date of sale to pay the real property tax due within 30 days
4. Plus interest of not more than 2% per month on from the date of publication, otherwise the
the purchase price from the date of sale to the properties listed shall be sold at public auction.
date of redemption (Sec.261, LGC)

Joachin is one of those named in the list. He Resale of real estate taken for taxes, fees, or
purchased a real property in 1996 but failed to charges
register the document of sale with the register of
Deeds and secure a new real property tax The sanggunian concerned may, by ordinance duly
declaration in his name. He alleged that the approved an upon notice of not less than twenty
auction sale of his property is void for lack of due (20) days, sell and dispose of the real property
process considering that the City Treasurer did acquired under the preceding Section at public
not send him personal notice. For his part, the auction. The proceeds of the sale shall accrue to the
City Treasurer maintains that the publication general fund of the LGU concerned. (Sec. 264, LGC)
and posting of notice are sufficient compliance
with the requirements of the law. Further levy until full payment of amount due
a. If you were the judge, how will you resolve Levy may be repeated if necessary, until the full
this issue? amount due, including all expenses, is collected.
b. Assuming Joachin is a registered owner, will (Sec. 265, LGC)
your answer be the same? (2006 BAR)
A:
a. I will resolve the issue in favor of Joachin. In
auction sales of property for tax delinquency,
notice to delinquent landowners and to the
public in general is an essential and
indispensable requirement of law, the non-
fulfillment of which vitiates the same. (Tiongco
v. Phil. Veterans Bank, G.R. No. 82782, 05 Aug.
1992)
The failure to give notice to the right person i.e.,

the real owner, will render an auction sale void.
(Tan v. Bantegui, G.R. No. 154027, Oct. 24, 2005;
City Treasurer of Q.C. v. CA, G.R. No. 120974, Dec.
22, 1997)
b. YES. The law requires that a notice of the

auction sale must be properly sent to Joachin
and not merely through publication. (Tan v.
Bantegui, G.R. No, 154027, 24 Oct. 2005; Estate of
Mercedes Jacob v. CA, G.R. No. 120435, 22 Dec.
1997)
LGUs may purchase real property advertised for

sale when
1. There is no bidder; or
2. The highest bid is for an amount insufficient to
pay the real property tax, fees, charges,
surcharges, interests or penalties. (Sec. 263,
LGC)

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Remedial Law
PROCEDURE FOR LEVY FOR PURPOSES OF SATISFYING REAL PROPERTY TAXES UNDER LGC
Tax constlllltes a Lien on the property superior to a II llens and m:ty only be extinguished upon payment of ttie tax and clUJrg:es:.
(Sec. 2S1.LGCJlss ua ace of the certlflc:att! of sale ID the purcbaser. (Sec.178,LGC)
Time for payment at real property tax e1Cplres.(Sec.2S8, UX) The dellnquenUaxpayer has one (1) year from the date of
sale to red.eem the property. If property ts r,edeemed, a certlflcate of redemptlon will be 1lssued. (Sec. 119. LGC)
r;:-lYllJl, or le-vyissuedby L1i wbidt 11:udie fora; or ll;g.alexeailion in the LGUconceffled. llr.lfftnt otle,;;y iss-uedby LT.wbidt bM me fol"Ce
~ll;~l exi.eLl'lioniii dll!!LCUconctr'iied. tr propefl\' i! i'IOLtede-effll!!d,.a
fi11al deed of sale shall be ~sued to dil!! p11rthas.et.
Warrant malled to or sl!JVed upon the delinquent owner. Wrlttl!ll notice of levy and warrant Is malled/served upon the i!SSl!5:Sllr
and dte Register of Deeds of tbe LGIJ(Sec.258, Lt;CJThe localtreasurer sball purchase the property on behalf of die LGUIf: a.)
There Lsnobldderb.) 'nte hlghe-st bld ls lnsufflctent ID pay the deficiency mx. (Sec. 181, LGC}
Befo11ethe date of sale, die owner may
l
30 days from service of warrant. Sale is held
stay the proceedings by paying the
LTshall advertise sale of pro~rty (Sec. 260, LGC)
deli.nquent tax, interest and expenses of (Sec. 160. LCC)
sale (Sec 260, LGC)
IF there is a bidder ANDhighest bid is sufficient to pay IF dte11eis no bidder OR tiighest bid is
i-eal property tax and. related interests and costs, insufficient to pay real property tax
bidder pays and tl'easurer reports sale to Sangguniot1 and related interest and costs, LT
.30 days after the sale. l Twill deliver to purchaser the· shall purchase the prop in behalf of
certificate of sale. Proceeds of s-ale in excess ,of the lGU.
delinquent tax, interest, expenses of sale 11emittedto
owner. (Sec. 260. LGC) RegistTar of Deeds sha l] b.lnsfer the
title of forfeited prop to LGU witlhout
Within one year room sale, m'V1lermay redeem upon need of Court order.
payment of the delinquent tax, interest due, expenses
of sale (from date of delinquency tD date of sale), and Within one year from forfeiture-,
additional interest of 2% per month on the purchase owner may redeem prop by paying to
price from date of sale to date of redemption. Treasurer full amount oftax, interest,
Delinquent owner retains possession and flightto the costs of sale.. (Sec. 263, lGC)
fruits. Price paid plus interest of 2% per month. shall
be returned to the buyer. {Sec. 261, LGC) Sanggunian concerned may by
ordinance. sell/dispose by public
l.Fnot mdeemed, deed of conveyance shall be issued auction of prop acquiried by
to tlhepurchaser. (Sec. 262, LGC) forfeiture. (Sec. 264, LGC)
l...__~------'
Levy may be 11epeateduntil fu]I amount due; including all expenses is collected {Sec.
265, LGC)

;___) 2022GOLDENNOTES
AVAILABLE REMEDIES TO THE TAXPAYER A:

UNDER REAL PROPERTY TAXATION a. The administrative remedies available to
Madam X to contest the assessment and their
1. Dispute assessment (Protest) respective prescriptive periods are as follows:
a. Any owner or person having legal interest 1. Pay the deficiency real property tax under
in the property who is not satisfied with the protest (Sec. 252, LGC);
action of the assessor in the assessment of 2. File the protest with the local treasurer –
his property; or The protest in writing muse be filed within
b. Any owner of real property affected by a 30 days from payment of the tax to the
special levy or any person having legal provincial, city, or municipal treasurer, in
interest therein may protest the the case of a municipality within
assessment by filing an appeal to the LBAA Metropolitan Manila Area, who shall decide
within 60 days from receipt of notice of the the protest within 60 days from receipt
assessment. (Sec. 252, LGC);
3. Appeal to the LBAA – If protest is denied or
2. Claim for refund or tax credit; upon the lapse of the 60-day period for the
treasurer to decide, the taxpayer may
3. Redemption of Real Property (Sec. 261, LGC) appeal to the LBAA within 60 days and the
case decided within 120 days (Sec. 226 &
4. Judicial Court Action 229, LGC); and
i. Appeal to the CTA en banc within 15 4. Appeal to the CBAA – If not satisfied with
days from receipt in case of adverse the decision of the LBAA, appeal to the
decision by the CBAA CBAA within 30 days from receipt of a copy
ii. Appeal by certiorari with the SC within of the decision. (Sec. 229(c), LGC)
15 days from notice in case of adverse
decision by the CTA b. NO. The payment of the deficiency tax is a
condition before she can protest the deficiency
5. Suit assailing the validity of the tax sale (Sec. assessment. It is the decision on the protest or
267, LGC) inaction thereon that gives her the right to
appeal. This means that she cannot refuse to
Deposit of amount for which the real property pay the deficiency tax assessment during the
was sold together with interest of 2% per pendency of the appeal because it is the
month from date of sale to the time of payment itself which gives rise to the remedy.
institution of action. The law provides that no protest (which is the
beginning of the disputation process) shall be
Q: Madam X owns real property in Caloocan City. entertained unless the taxpayer first pays the
On July 1, 2014, she received a notice of tax. (Sec. 252, LGC)
assessment from the City Assessor, informing
her of a deficiency tax on her property. She CONTESTING AN ASSESSMENT
wants to contest the assessment.
Available remedy for a taxpayer contesting an
a. What are the administrative remedies assessment
available to Madam X in order to contest the
assessment and their respective Any owner or person having legal interest in the
prescriptive periods? property not satisfied with the action of the assessor
b. May Madam X refuse to pay the deficiency in the assessment of his property may within 60
tax assessment during the pendency of her days from the date of receipt of the written notice of
appeal? (2014 Bar) assessment appeal to the Board of Assessment
Appeals of the provincial or city by filing a petition

e

Remedial Law
under oath in the form prescribed for the purpose, exemption for its failure to comply with Section
together with copies of the tax declarations and 252 of the LGC requiring payment of the assailed
such affidavits or documents submitted in support tax before any protest can be made. The Central
of the appeal. (Sec. 226, LGC) Board of Assessment Appeals (CBAA) ultimately
dismissed Napocor’s appeal for failure to meet
Payment under protest; exceptions the requirements for tax exemption; however,
the CBAA agreed with Napocor’s position that
Reason for the necessity of prior payment the protest contemplated in Section 252 (a) is
before protest may be entertained by the courts applicable only when the taxpayer is
questioning the reasonableness or
The basis for requiring payment before protest can excessiveness of an assessment. The CBAA ruled
be entertained is that taxes are the lifeblood of the that the requirement of payment prior to
nation and as such collection cannot be restrained protest does not apply where the legality of the
by injunction or any like action. (Manila Electric assessment is put in issue on account of the
Company v. Barlis, et. al., G.R. No. 114231, 18 May taxpayer’s claim that it is exempt from tax. The
2001) CTA en banc agreed with the CBAA’s discussion.
Rules as to the necessity of paying real property a. If the taxpayer claims that the property is
tax prior to protest exempt from real property tax, is the
taxpayer required to pay the tax pursuant to
GR: The taxpayer must pay the real property tax Section 252?
assessed prior to protesting a real property tax b. Is Napocor’s action before the LBAA
assessment. (Sec. 252, LGC) prematurely filed?
XPN: The payment of the tax prior to protest is not A:

necessary where the taxpayer questions the a. YES. By claiming exemption from realty
authority and power of the assessor to impose the taxation, Napocor is simply raising a question of
assessment and of the treasurer to collect the tax. the correctness of the assessment. As such, the
(Ty, et. al., v. Trampe, G.R. No. 117577, 01 Dec. 1995) real property tax must be paid prior to the
making of a protest. On the other hand, if the
NOTE: The protest contemplated under Section 252 taxpayer is questioning the authority of the
is required where there is a question as to the local assessor to assess real property taxes, it is
reasonableness or correctness of the amount not necessary to pay the real property tax prior
assessed. Hence, if a taxpayer disputes the to the protest. A claim for tax exemption,
reasonableness of an increase in a real property tax whether full or partial, does not question the
assessment, he is required to “first pay the tax” authority of local assessor to assess real
under protest. Otherwise, the city or municipal property tax.
treasurer will not act on his protest. (Ibid.)
b. YES. It was an ill-advised move for Napocor to
Q: The Province of Quezon assessed Mirant directly file an appeal with the LBAA under
Pagbilao Corporation (Mirant) for unpaid real Section 226 without first paying the tax as
property taxes. Napocor, which entered into a required under Section 252. Sections 252 and
Build-Operate-Transfer (BOT) Agreement with 226 provide successive administrative
Mirant, protested the assessment before the remedies to a taxpayer who questions the
Local Board of Assessment Appeals (LBAA), correctness of an assessment. Section 226, in
claiming entitlement to the tax exemptions declaring that “any owner or person having legal
provided under Section 234 of the Local interest in the property who is not satisfied with
Government Code (LGC) The real property taxes the action of the provincial, city, or municipal
assessed were not paid prior to the protest. The assessor in the assessment of his property may
LBAA dismissed Napocor’s petition for appeal to the Board of Assessment Appeals,”

should be read in conjunction with Section 252 reasonableness of the amount assessed, not where
(d), which states that in the event that the the question raised is on the very authority and
protest is denied, the taxpayer may avail of the power of the assessor to impose the assessment and
remedies as provided for in Chapter 3, Title II, of the treasurer to collect the tax. (Ty v. Trampe, G. R.
Book II of the LGC (Chapter 3 refers to No. 117577, 01 Dec. 1995)
Assessment Appeals, which includes Sections
226 to 231). The “action” referred to in Section By posting the surety bond, a taxpayer may be
226 (in relation to a protest of real property tax considered to have substantially complied with
assessment) thus refers to the local assessor’s Section 252 of the LGC for the said bond already
act of denying the protest filed pursuant to guarantees the payment to the Office of the Local
Section 252. Without the action of the local Treasurer of the total amount of real property taxes
assessor, the appellate authority of the LBAA and penalties due. (Camp John Hay Development
cannot be invoked. Napocor’s action before the Corporation v. Central Board of Assessment Appeals,
LBAA was thus prematurely filed (NAPOCOR v. G.R. No. 169234, 02 Oct. 2013)
Province of Quezon, G.R. No. 171586, 25 Jan.
2010) Q: ABC, Inc. owns a 950-square meter
commercial lot in Quezon City. It received a
FILE PROTEST WITH TREASURER notice of assessment from the City Assessor,
subjecting the property to real property taxes
Guidelines in paying tax under protest (RPT) Believing the assessment was erroneous,
ABC, Inc. filed a protest with the City Treasurer.
1. No protest shall be entertained unless the However, for failure to pay the RPT, the City
taxpayer first pays the tax. There shall be Treasurer dismissed the protest.
annotated on the tax receipts the words "paid
under protest" The protest in writing must be a. Was the City Treasurer correct in dismissing
filed within 30 days from payment of the tax to ABC, Inc.’s protest?
treasurer who shall decide the protest within b. Assuming that ABC, Inc. decides to appeal
60 days from receipt. the dismissal, where should the appeal be
filed? (2019 BAR)
2. The tax or a portion paid under protest shall be
held in trust by the treasurer concerned. A:
a. YES, the City Treasurer was correct in
3. In the event that the protest is finally decided in dismissing ABC Inc.’s protest.
favor of the taxpayer, the amount or portion of
the tax protested shall be refunded to the Under Section 252 of the Local Government
protestant or applied as tax credit against his Code, no protest shall be entertained unless the
existing or future tax liability. taxpayer first pays the tax, in which the words
“paid under protest” shall be annotated on the
4. In the event that the protest is denied or upon tax receipts.
the lapse of the 60-day period, the taxpayer may
avail appeal the assessment before the Local Here, ABC, Inc. failed to first pay the real
Board of Assessment Appeals. (Sec. 252, LGC) property tax assessed by the Quezon City when
it filed a protest before the City Treasurer.
5. In case there is adverse decision by the LBAA,
the taxpayer may appeal with the CBAA within b. Assuming that ABC, Inc. decides to appeal the
30 from receipt of the adverse decision by the dismissal, the appeal should be filed with the
LBAA. Local Board of Assessment Appeals (LBAA).
XPN: The protest contemplated in Section 252 of the If the local treasurer denies the protest or fails
LGC is needed when there is a question as to the to act upon it within the 60-day period provided

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Remedial Law
for in Section 252, the taxpayer/real property PROCEDURE FOR PROCEDURE FOR
owner may then appeal or directly file a verified TAX REFUND BASED TAX REFUND BASED
petition with the LBAA within sixty days from ON UNREASONABLE ON SOLUTIO
denial of the protest or receipt of the notice of COLLECTION OF RPT INDEBITI
assessment, as provided in Section 226 of R.A. Payment under protest
No. 7160. at the time of payment
Payment under protest
or within 30 days
is NOT required.
REFUNDS OR CREDITS OF REAL PROPERTY thereafter is
TAXES MANDATORY.
Treasurer has 60 days Treasurer has 60 days
Remedy of a taxpayer in case of excessive from receipt of the from claim for refund
collections protest to decide. to decide on the claim.
Taxpayer may appeal
The taxpayer may file a written claim for refund or the decision or
credit for taxes and interests with the local inaction of the Treasurer’s denial
treasurer, in case an assessment of RPT or any other treasurer to the LBAA would bring the case
tax under Real Property Taxation (Title II, LGC) is within 30 days from within the original
found to be illegal or erroneous (Sec. 253, LGC) receipt of the decision jurisdiction of the RTC.
or after the expiration
Period for claim for refund of 60 days.
The decision of the
The claim must be filed with the local treasurer The LBAA has 120 RTC is appealable to
within two (2) years from the date the taxpayer is days from receipt of the CTA (in division)
entitled to such reduction or adjustment (Ibid.) the appeal to decide. by way of petition for
review.
Procedure for claim for refund or credit Taxpayer may appeal
The decision of CTA in
the decision of LBAA
division may be the
Taxpayer files a written claim for refund or credit with the to CBAA within 30
treasurer within 2 years from the date the taxpayer is entitled to subject of a review by
such reduction or adjustment days from receipt of
CTA en banc.
the decision.
The decision of CTA en
Provincial or City Treasurer should decide the claim The adverse decision
within 60 days from receipt of the claim.
banc may be appealed
of CBAA may be
to the SC by way of
appealed to the CTA in
petition for review on
division within 30
In case of denial, appeal to the LBAA within 30 days certiorari within 15
as in protest case. days from receipt of
days from the receipt
decision.
of decision.
Appeal to CBAA within 30 days if LBAA gives an adverse The decision of CTA
decision.
division may be
subjected to a Motion
for Reconsideration or
New Trial before the
CTA en banc, and
thereafter, an appeal
to SC by means of
petition for review on
certiorari.

2022 GOLDEN NOTES
Q: In view of the street widening and cementing Jurisdiction of the LBAA

of roads and improvement of drainage and
sewers in the district of Ermita, the City Council LBAA has Jurisdiction to hear appeals of owners or
of the City of Manila passed an ordinance persons having legal interest in the property who
imposing and collecting a special levy on lands are not satisfied with the action of the assessor on
in the district. Jose filed a protest against the an assessment of his property.
special levy fifteen (15) days after the last
publication of the ordinance alleging that the NOTE: In the exercise of its appellate jurisdiction,
maximum rate 60% of actual cost of the project the LBAA shall have the power to
allowed under Sec. 240 of the LGC was exceeded. a. summon witnesses,
b. administer oaths,
Assuming that Jose Reyes is able to prove that c. conduct ocular inspection,
the rate of special levy is more than the d. take depositions, and
aforesaid percentage limitation, will his protest e. issue subpoena and subpoena duces tecum.
prosper? (1991 BAR)
The proceedings of the Board shall be conducted
A: No. His basis for the protest was the solely for the purpose of ascertaining the facts
unreasonably excessive payment. Payment under without necessarily adhering to technical rules
protest is thus an administrative precondition for applicable in judicial proceedings (Sec. 229(b), LGC)
the suit.
Period for the decision of an appeal
Repayment of Excessive Collections
The LBAA shall decide the appeal within 120 days
Remedy available for a taxpayer whose real from the date of receipt of such appeal. The Board,
property was erroneously assessed after hearing, shall render its decision based on
substantial evidence or such relevant evidence on
When an assessment of basic real property tax, or record as a reasonable mind might accept as
any other tax levied under this Title, is found to be adequate to support the conclusion (Sec 229(a),
illegal or erroneous and the tax is accordingly LGC)
reduced or adjusted, the taxpayer may file a written
claim for refund or credit for taxes and interests Appeal to the Central Board of Assessment
with the provincial or city treasurer within 2 years Appeals (CBAA)
from the date the taxpayer is entitled to such
reduction or adjustment. (Sec. 253, LGC) Composition of the CBAA
CONTESTING A VALUATION 1. A Chairman; and

OF REAL PROPERTY 2. Two (2) members (Sec. 230, LGC)
Appeal to the Local Board of Assessment Jurisdiction of the CBAA

Appeals (LBAA)
The Board shall have appellate jurisdiction over all
Composition of the LBAA assessment cases decided by the LBAA. (Sec. 230,
LGC)
1. The Registrar of Deeds, as Chairman;
2. The provincial or city prosecutor as member; NOTE: The CBAA can be appointed by the Supreme
3. The provincial or city engineer as a member Court to act as a court-appointed fact-finding
(Sec. 227, LGC) commission to assist the Court in resolving the
factual issues raised in the cases before it. In that
regard, the CBAA is not acting in its appellate
jurisdiction. (Mathay v. Undersecretary of Finance,

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Remedial Law
G.R. Nos. 97618, 97760, 102319, 16 Dec. 1993) Appeals, which under the LGC, has appellate
jurisdiction over decisions of LBAA. (Caltex Phils. v.
The owner of the property or the person having CBAA, G.R. No. L50466, 31 May 1982)
legal interest therein or the assessor who is not
satisfied with the decision of the Board may, within Instances where CTA (En Banc) has exclusive
30 days after receipt of the decision of said Board, appellate jurisdiction over cases filed with CBAA
appeal to the Central Board of Assessment Appeals,
as herein provided. The decision of the Central 1. In the exercise of its appellate jurisdiction
Board shall be final and executory. (Sec. 229(c), LGC) 2. Over cases involving the assessment and
taxation of real property
CBAA has NO authority to hear purely legal 3. Originally decided by the provincial or CBAA
issues
Period within which CBAA should resolve a case
Such authority is lodged with the regular courts. submitted to it for decision
Thus, the issue of whether R.A. 7160 repealed P.D.
921, is an issue which does not find referral to the The Central Board shall decide cases brought on
CBAA before resort is made to the courts. (Ty, v. appeal within 12 months from the date of receipt
Trampe, G.R. No. 117577, 01 Dec. 1995) thereof, which decision shall become final and
executory after the lapse if 15 days from the date of
Appeal to LBAA or CBAA do NOT suspend the receipt thereof by the appellant.
collection of tax
Exception when prior resort to administrative
An appeal on assessments of real property shall in action is not required
no case, suspend the collection of the corresponding
realty taxes the property involved as assessed. This In disputes involving real property taxation, the
is without prejudice to subsequent adjustment general rule is to require the taxpayer to first avail
depending upon the final outcome of the appeal. of administrative remedies and pay the tax under
(Sec. 231) protest before allowing any resort to a judicial
action, except when the assessment itself is alleged
NOTE: No court shall have the authority to enjoin or to be illegal or is made without legal authority. For
restrain the collection of any tax, fee, or charge example, prior resort to administrative action is
collected by the provincial, city or municipal required when among the issues raised is an
treasurer. “No injunction rule” allegedly erroneous assessment, like when the
reasonableness of the amount is challenged, while
Q: A Co., a Philippine corporation, is the owner direct court action is permitted when only the
of machinery, equipment and fixtures located at legality, power, validity or authority of the
its plant in Muntinlupa City. The City Assessor assessment itself is in question. Stated differently,
characterized all these properties as real the general rule of a prerequisite recourse to
properties subject to the real property tax. A Co. administrative remedies applies when questions of
appealed the matter to the Muntinlupa Board of fact are raised, but the exception of direct court
Assessment Appeals. The Board ruled in favor of action is allowed when purely questions of law are
the City. A Co. brought a petition for review involved. (Capitol Wireless, Inc. vs. Provincial
before the CTA to appeal the decision of the City Treasurer of Batangas, G.R. No. 180110, 30 May
Board of Assessment Appeals. Is the Petition for 2016)
Review proper? Explain. (1999 BAR)
Effect of payment of taxes
A: NO. The CTA’s devoid of jurisdiction to entertain
appeals from the decision of the City Board of Appeal on assessments of real property shall, in no
Assessment Appeals. Said decision is instead case, suspend the collection of the corresponding
appealable to the Central Board of Assessment realty taxes on the property involved as assessed by

the provincial or city assessor, without prejudice to

subsequent adjustment depending upon the final
outcome of the appeal. (Sec. 231, LGC)
COMPROMISING REAL PROPERTY

TAX ASSESSMENT
Instances which the sanggunian may condone or

reduce real property tax
The sanggunian by ordinance passed prior to the 1st

day of January of any year and upon
recommendation of the local disaster coordinating
council, may condone or reduce, wholly or partially,
the taxes and interest thereon for the succeeding
year or years in the city or municipality affected by
the calamity in cases of: (Cro-Pri-Cal)
1. General failure of Crops;

2. Substantial decrease in the Price of agricultural
or agri-based products;
3. Calamity in any province, city or municipality.
President’s power to condone or reduce real

property tax
The president may, when public interest so requires,

condone or reduce the real property tax and interest
for any year in any province or city or a municipality
within the Metro. (Sec. 277, LGC)

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Remedial Law
TAXPAYER’S REMEDIES INVOLVING COLLECTION OF REAL PROPERTY TAX

LOCAL GOVERNMENT CODE
,
SUBMISSION OF ASSESSMENT ROLL
By: LT
When: Before December 31 of each year
(Sec. 248, LGC)
I
NOTICE OF DEADLINE
Posted at a conspicuous place at the LGU
once a week for 2 consecutive weeks
(Sec. 249, LGC)
...
I
I I
~ ... ...
Taxpayer agrees with Taxpayer disagrees with
assessment assessment.
Taxpayer pays. Taxpayer pays under protest.
r ..,
Protests filed within 30 days from

payment of tax with LT
I
, I
... , I
Protest decided in favor of 60 days lapsed and there is

Protest is denied
the taxpayer inaction from the LT
...
I
, ...
Taxpayer may appeal with
LBAA
Note: LBAA must decide
within 120 days from
... i ~
r
I , I
.,
LBAA rejects the protest: the
owner may appeal to CBAA
LBAA grants protest within 30 days from receipt of
decision of the LBAA (Sec. 229
[c], LGC)
... ~
... ~
, I
... I
CBAA grants appeal CBAA rejects the protest:
Appeal with the CTA (RA 9282)
... ~ ...
. I
The amount or portion of the tax CTA rejects appeal: Appeal with
protested shall be refunded or applied as .--- CTA grants appeal
SC within 15 days
tax credit (Sec. 252 [c], LGC)
... ...
..,,..,,,.
;_._) 2022 GOLDEN NOTES
EXCLUSIVE ORIGINAL AND APPELLATE

C. THE COURT OF TAX APPEALS JURISDICTION OVER CIVIL CASES
(R.A. 1125, AS AMENDED, AND THE REVISED
RULES OF THE COURT OF TAX APPEALS) Cases within the jurisdiction of the Court En
banc (Sec. 2, Rule 4, Revised Rules of CTA
(RRCTA))
Court of Tax Appeals (CTA)

The Court en banc shall exercise exclusive appellate
jurisdiction to review by appeal the following: (A-R-
CTA is a highly specialized body specifically created
Mo-R)
for the purpose of reviewing tax cases. The CTA is,
by the very nature of its function, dedicated
1. Decisions or resolutions on motions for
exclusively to the study and consideration of tax
reconsideration or new trial of the Court in
problems. (CIR v. CA, G.R. No. 115349, 18 Apr. 1997)
Divisions in the exercise of its exclusive
appellate jurisdiction over: (A-L-T)
1. JURISDICTION
a. Cases arising from Administrative agencies

The CTA has jurisdiction over both civil and criminal
– BIR, BOC, DoF, DTI, and DA;
aspects of a tax case. The concentration of tax cases
b. Local tax cases decided by the RTC in the
in one court will enhance the disposition of these
exercise of their original jurisdiction; and
cases since it will take them out of the jurisdiction of
c. Tax collection cases decided by the RTC in
regular courts which, admittedly, do not have
the exercise of their original jurisdiction
expertise in the field of taxation. (Dimaampao, 2015)
involving final and executory assessments
for taxes, fees, charges and penalties, where
Salient features of R.A. 9282 regarding appeals
the principal amount of taxes and penalties
claimed is less than P1 million pesos;
The decisions of the CTA are no longer appealable to
the CA. The decision of a division of the CTA may be
2. Decisions, resolutions or orders of the RTC in
appealed to the CTA En Banc, which in turn may be
cases decided or resolved by them in the
appealed directly to the SC only on questions of law.
exercise of their appellate jurisdiction over:
Q: Does the CTA have jurisdiction over a special
a. Local tax cases
civil action for certiorari assailing an
b. Tax collection cases;
interlocutory order issued by the RTC in a local
tax case?
3. Decisions, resolutions or orders on Motions for
reconsideration or new trial of the Court in
A: YES. Although there is no categorical statement
Division in the exercise of its exclusive original
under R.A. 1125 as well as the amendatory R.A.
jurisdiction over tax collection cases; and
9282, which provides that the CTA has jurisdiction
over petitions for certiorari assailing interlocutory
4. Decisions of the Central Board of Assessment
orders issued by the RTC in local tax cases filed
Appeals (CBAA) in the exercise of its appellate
before it, the prevailing doctrine is that a court may
jurisdiction over cases involving the
issue a writ of certiorari in aid of its appellate
assessment and taxation of Real property
jurisdiction if said court has jurisdiction to review,
originally decided by the provincial or city
by appeal or writ of error, the final orders or
board of assessment appeals. (Sec. 2, Rule 4,
decisions of the lower court. (The City of Manila v.
RRCTA)
Hon. Grecia-Cuerdo, G.R. No. 175723, 04 Feb. 2014)
NOTE: Decisions, orders, and resolutions of the RTC

in local tax cases do not include real property tax
which is an ad valorem tax. The jurisdiction of the

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CTA en banc involves only those real property tax petition for certiorari with the Court of Appeals,
cases originally decided by the CBAA in the exercise arguing that the City of Davao’s taxation of its
of its appellate jurisdiction under Sec. 7(a)(5) of R.A. properties and their subsequent auction and
9282 and under R.A. 7160. (Habawel v. CTA, G.R. No. sale to satisfy the alleged tax liabilities were
174759, 07 Sept. 2011) without or in excess of its jurisdiction and
contrary to law. It argued that it had no other
Q: A Co., a Philippine corporation, is the owner speedy and adequate remedy except to file a
of machinery, equipment and fixtures located at petition for certiorari with the Court of Appeals.
its plant in Muntinlupa City. The City Assessor While the petition was pending with the Court of
characterized all these properties as real Appeals, the Court of Tax Appeals promulgated
properties subject to the real property tax. A Co. a decision, granting the Philippine Ports
appealed the matter to the Muntinlupa Board of Authority’s appeal, ordering that its properties
Assessment Appeals. The Board ruled in favor of and buildings in the site are exempt from real
the City. In accordance with R.A. 1125, A Co. estate tax imposed by Davao City, and voiding all
brought a petition for review before the CTA to the real estate tax assessments issued by Davao
appeal the decision of the Board. Is the Petition City on such properties. The Court of Appeals
for Review proper? Explain. (1999 BAR) dismissed the petition and held that the Court of
Tax Appeals had exclusive jurisdiction to
A: NO. The CTA is devoid of jurisdiction to entertain determine the matter and said that the
appeals from the decision of the Municipal Board of Philippine Ports Authority “should have applied
Assessment Appeals. The proper remedy is to for the issuance of writ of injunction or
appeal such decision to the CBAA, which under the prohibition before the Court of Tax Appeals.”
LGC, has appellate jurisdiction over decisions of Does the Court of Appeals have jurisdiction to
Local Board of Assessment Appeals. (Caltex Phil, issue the injunctive relief prayed for by PPA?
Foe. v. CBAA, L-50466, 31 May 1982)
A: NO. CA had no jurisdiction to issue the injunctive
R.A. 9282 provides that CTA has jurisdiction over relief prayed for by PPA. Section 7, paragraph (a)(5)
decisions of the CBAA in the exercise of its appellate of Republic Act No. 1125, as amended by Republic
jurisdiction over cases involving the assessment Act No. 9282, provides that the Court of Tax Appeals
and taxation of real property originally decided by has exclusive appellate jurisdiction over: “(5)
the provincial or city board of assessment appeals. Decisions of the Central Board of Assessment
Appeals in the exercise of its appellate jurisdiction
Q: PPA received a letter from the City Assessor over cases involving the assessment and taxation of
of Davao for the assessment of real property real property originally decided by the provincial or
taxes against administered properties. It city board of assessment appeals.” (Philippine Ports
appealed the assessment to the Local Board of Authority v. The City of Davao, G.R. 190324, 06 June
Assessment Appeals. While the case was 2018
pending, the City of Davao posted a notice of sale
of delinquent real properties. The Local Board of
Assessment Appeals dismissed the PPA appeal
for having been filed out of time, and for its lack
of jurisdiction on the latter’s tax exemption. The
PPA appealed before the Central Board of
Assessment Appeals but was subsequently
denied. Thus, it filed an appeal with the Court of
Tax Appeals. The Philippine Ports Authority
claimed that it did not receive any warrant of
levy for its properties which were sold to
respondent City of Davao, or any notice that they
were going to be auctioned. Thus, the PPA filed a

CASES WITHIN THE JURISDICTION OF THE scope of the function of the BIR and BOC
COURT IN DIVISIONS (SEC. 3, RULE 4, Revised by applying the ejusdem generis rule (that
Rules of the Court of Tax Appeals [RRCTA]) is, such cases should be of the same
nature as those that have preceded
I. Exclusive Appellate Jurisdiction (Sec. 3(a), them).
Rule 4, RRCTA)
(D-I-Re-C-T-O-R-S2) In CIR v. Hambrecht & Quist Philippines,
Inc. (G.R. No. 169225, 17 Nov. 2010), the
1. Decisions of the CIR in cases involving: term “other matters” is limited only by
(D-R-O) the qualifying phrase that follows it. The
appellate jurisdiction of the CTA is not
a. Disputed assessments; limited to cases which involve the
decisions of the CIR on matters relating
Q: Which court has jurisdiction over to assessments or refunds. It covers other
undisputed assessments? cases that arise out of the NIRC or related
laws administered by the BIR. The issue
A: Being an action for the collection of of whether or not the BIR’s right to collect
sum of money, the CTA has exclusive taxes had already prescribed is a subject
original jurisdiction over undisputed matter falling under the NIRC. In
assessments when the amount involved connection therewith, the NIRC also
is P1 million or more; and appellate states that the collection of taxes is one of
jurisdiction over appeals from the the duties of the BIR. Thus, from the
judgments, resolutions, or orders of the foregoing, the issue of prescription of the
RTC in tax collection cases originally BIR’s right to collect taxes may be
decided by them within their jurisdiction. considered as covered by the term “other
(Sec. 3(c) Rule 4 RRCTA) matters” over which the CTA has
appellate jurisdiction.
However, where the amount is less than
P1 million, it is the RTC or the MTC that Q: BDO questions a BIR ruling
has jurisdiction, as the case may be, subjecting interest income from zero-
depending on the jurisdictional amount. coupon bonds issued by the
government to the 20% final
NOTE: Undisputed assessments are withholding tax as they are deemed to
already final and collectible. The be deposit substitutes. BDO filed it to
taxpayer failed to seasonably protest the the CTA, not with the Secretary of
assessment within a period of 30 days Finance. CIR contends that it violates
from receipt of the notice of assessment. the principle of exhaustion of
administrative remedies. Is BDO
b. Refunds of internal revenue taxes, fees or correct?
other charges and penalties imposed
thereto; A: YES. The jurisdiction to review the
rulings of the CIR pertains to the CTA. The
c. Other matters arising under NIRC or other questioned BIR Rulings were issued in
laws administered by the BIR. connection with the implementation of
the NIRC. Under Sec. 7 of R.A. No. 1125 as
Q: What does “other matters” under amended by R.A. No. 9282, the CTA shall
the NIRC or the TCCP mean? exercise exclusive appellate jurisdiction
to review by appeal on the Decisions of
A: The term “other matters” includes the CIR in cases involving disputed
cases which can be considered within the assessments, refunds of internal revenue

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taxes, fees or other charges, penalties in BOC.

relation thereto or other matters arising
under the NIRC or other laws 5. Decisions of the Secretary of Finance on
administered by the BIR. Section 11 is customs cases elevated for automatic
likewise worded as follows: Any party review from decisions of the COC which are
adversely affected by a decision, ruling or adverse to the Government under Section
inaction of the CIR, the Commissioner of 2315 of the TCCP (now Sec. 1128 of the
Customs, the Secretary of Finance, the CMTA)
Secretary of Trade and Industry or the
Secretary of Agriculture or the Central NOTE: The purpose and rationale of the
Board of Assessment Appeals or the automatic review in customs cases- the
Regional Trial Courts may file an appeal provision for automatic review by the COC and
with the CTA within 30 days after the the Secretary of Finance of unappealed seizure
receipt of such decision or ruling. (Banco and protest cases was conceived to protect the
de Oro v. Republic, G.R. No. 198756, 13 Jan. government against corrupt and conniving
2015) customs collectors. (Yaokasin v. COC, G.R. No.
84111, 22 Dec. 1989)
2. Inaction by the CIR in cases involving:
(D-R-O-W) 6. Decisions of the Secretary of Trade and
Industry, in the case of non-agricultural
a. Disputed assessments; product, commodity or article, and the
b. Refunds of internal revenue taxes, fees or Secretary of Agriculture in the case of
other charges and penalties imposed agricultural product, commodity or article,
thereto; involving dumping and countervailing
c. Other matters arising under NIRC or duties under Sections 301 and 302,
other laws administered by the BIR, respectively of the TCCP, and safeguard
where the NIRC provides a specific measures under R.A. 8800, where either
period for action. party may appeal the decision to impose or
not to impose said duties.
NOTE: The inaction by the CIR within the
180-day period under Sec. 228 of the NOTE: The SC held that the lower courts can
NIRC, and the 90-day period for VAT acquire jurisdiction over a claim for collection
refund cases, under the TRAIN Law, shall of deficiency taxes only after the assessment
be deemed a denial. made by the CIR has become final and
appealable, not where there is still a pending
3. Decisions, Orders or Resolutions of the RTC CTA case. (Yabes v. Flojo, G.R. No. L-46954, 20
in the exercise of their original jurisdiction July 1982)
over local tax cases and tax collection cases.
Q: Does the CTA have the power to review tax
4. Decisions of the Commissioner of Customs cases motu proprio? (1977 BAR)
(COC) in cases involving: (D-S-F-O)
A: NO. The CTA has no power motu proprio to
a. Liability for customs duties, fees or other review tax cases. It can resolve cases only if a civil
money charges; action for collection of sum of money is filed before
b. Seizure, detention or release of property it in the exercise of its exclusive original jurisdiction,
affected; or a petition for review is filed in the exercise of its
c. Fines, forfeitures or other penalties in exclusive appellate jurisdiction. An information may
relation thereto; or be filed with the CTA directly where the principal
d. Other matters arising under Customs amount of taxes and fees, exclusive of charges and
Law or other laws administered by the penalties, is P1 million or more.

Q: Does the CTA have jurisdiction to rule on Furthermore, with respect to administrative
validity of a Rule or Regulation issued by an issuances (revenue orders, revenue memorandum
administrative agency? circulars, or rulings), these are issued by the
Commissioner under its power to make rulings or
A: NO. While the law confers on the CTA jurisdiction opinions in connection with the implementation of
to resolve tax disputes in general, this does not the provisions of internal revenue laws. Tax rulings,
include cases where the constitutionality of a law or on the other hand, are official positions of the
rule is challenged. Where what is assailed is the Bureau on inquiries of taxpayers who request
validity or constitutionality of a law, or a rule or clarification on certain provisions of the National
regulation issued by the administrative agency in Internal Revenue Code, other tax laws, or their
the performance of its quasi-legislative function, the implementing regulations. Hence, the
regular courts have jurisdiction to pass upon the determination of the validity of these issuances
same. (British American Tobacco v. Camacho, G.R. No. clearly falls within the exclusive appellate
163583, 20 Aug. 2008) jurisdiction of the Court of Tax Appeals under
Section 7(1) of Republic Act No. 1125, as amended,
NOTE: However, in the case of Banco de Oro vs. subject to prior review by the Secretary of Finance,
Republic of the Philippines (G.R. No. 198756, August as required under Republic Act No. 8424. (Banco de
16, 2016), the Supreme Court ruled that the Court of Oro vs. Republic of the Philippines, G.R. No. 198756,
Tax Appeals has undoubted jurisdiction to pass 16 Aug. 2016)
upon the constitutionality or validity of a tax law or
regulation when raised by the taxpayer as a defense Q: Disputing the assessment, PAGCOR appealed
in disputing or contesting an assessment or to the Secretary of Justice, on the basis of
claiming a refund. It is only in the lawful exercise of Sections 66 and 67 of the Revised
its power to pass upon all maters brought before it, Administrative Code, which provides that “all
as sanctioned by Section 7 of Republic Act No. 1125, disputes/claims and controversies, solely
as amended. between or among the departments, bureaus,
offices, agencies and instrumentalities of the
This Court, however, declares that the Court of Tax National Government, including government -
Appeals may likewise take cognizance of cases owned and -controlled corporations, such as
directly challenging the constitutionality or validity those arising from the interpretation and
of a tax law or regulation or administrative issuance application of statues, contracts or agreements
(revenue orders, revenue memorandum circulars, shall be administratively settled or adjudicated
rulings). by the Secretary of Justice as Attorney-General
of the National Government and as ex officio
In other words, within the judicial system, the law legal adviser of all government- owned or -
intends the Court of Tax Appeals to have exclusive controlled corporations if involving only
jurisdiction to resolve all tax problems. Petitions for questions of law.”
writs of certiorari against the acts and omissions of
the said quasi-judicial agencies should, thus, be filed The CIR contends that the CTA has jurisdiction
before the Court of Tax Appeals. pursuant to Section 7(1) of R.A. No. 1125, which
grants the CTA the exclusive appellate
Republic Act No. 9282, a special and later law than jurisdiction to review, among others, the
Batas Pambansa Blg. 129 provides an exception to decisions of the Commissioner of Internal
the original jurisdiction of the Regional Trial Courts Revenue “in cases involving disputed
over actions questioning the constitutionality or assessments, refunds of internal revenue taxes,
validity of tax laws or regulations. Except for local fees or other charges, penalties imposed in
tax cases, actions directly challenging the relation thereto, or other matters arising under
constitutionality or validity of a tax law or the NIRC or other law or part of law
regulation, or administrative issuance may be filed administered by the Bureau of Internal
directly before the Court of Tax Appeals. Revenue.

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Is PAGCOR correct? shall be tried by the proper MTC, MeTC, or RTC,

depending on their respective jurisdiction. The
A: NO. Following the rule on statutory construction jurisdiction of the CTA in these cases shall be
involving a general and a special law, then P.D. No. appellate. (Sec. 7(b)(1), R.A. 1125, as amended
242 should not affect R.A. No. 1125. R.A. No. 1125, by RA. No. 9282)
specifically Section 7 thereof on the jurisdiction of
the CTA, constitutes an exception to P.D. No. 242. 2. Appellate jurisdiction over appeals from the
Disputes, claims and controversies, falling under judgments, resolutions or orders of the
Section 7 of R.A. No. 1125, even though solely among Regional Trial Courts in tax collection cases
government offices, agencies, and instrumentalities, originally decided by them within their
including GOCCs, remain in the exclusive appellate respective territorial jurisdiction.
jurisdiction of the CTA. Such a construction resolves
the alleged inconsistency or conflict between the EXCLUSIVE ORIGINAL AND APPELLATE
two statutes. (CIR v. Secretary of Justice, G.R. No. JURISDICTION OVER CRIMINAL CASES
177387, 09 Nov. 2016, citing Philippine National Oil
Company v. Court of Appeals, G.R. Nos. 109976 and I. Exclusive original jurisdiction
112800, 26 Apr. 2005)
The CTA in Division have exclusive original
In CIR v. Secretary of Justice, to restate, as a general jurisdiction over all criminal offenses arising
rule, all disputes/claims and controversies, solely from violations of the NIRC or TCCP and other
between or among the departments, bureaus, laws administered by the BIR or the BOC, where
offices, agencies and instrumentalities of the the principal amount of taxes and fees, exclusive
National Government, including GOCCs, such as of charges and penalties, claimed is P1 million or
those arising from the interpretation and more.
application of statues, contracts or agreements shall
be administratively settled or adjudicated by the Regular courts shall have jurisdiction in offenses
Secretary of Justice or the Solicitor General. (Secs. or felonies where:
66-68, Revised Administrative Code) 1. The principal amount of taxes and fees,
exclusive of charges and penalties claimed
As an exception, when the disputes/claims and is less than ₱1 million; or
controversies involve a tax assessment, even when 2. No specified amount is claimed.
the parties to the dispute are departments, bureaus,
offices, agencies and instrumentalities of the The jurisdiction of the CTA in these cases shall
National Government, including GOCCs, the be appellate. (Sec. 7(b)(1), R.A. 1125, as
exclusive appellate jurisdiction remains with the amended)
CTA. (Sec. 7, R.A. 1125)
Inclusion of civil action in criminal action
II. Exclusive jurisdiction over tax collections
cases (Sec. 3(c), Rule 4, RRCTA) Despite any provision of law or the Rules of
Court, the criminal action and the
1. Original jurisdiction in tax collection cases corresponding civil action for the recovery of
involving final and executory assessments for the civil liability for taxes and penalties, shall at
taxes, fees, charges and penalties, where the all times be simultaneously instituted with, and
principal amount of taxes and fees, exclusive of jointly determined in the proceeding before the
charges and penalties, claimed is one million CTA. The filing of the criminal action is deemed
pesos or more. to necessarily carry with it the filing of civil
action, and no right to reserve the filing of
NOTE: Collection cases where the principal such civil action separately from the
amount of taxes and fees, exclusive of charges
and penalties claimed is less than P1 million

criminal action will be recognized. (Sec. 7, 2. PROCEDURES

R.A. 1125, as amended)
a. CIVIL CASES
II. Exclusive appellate jurisdiction
i. INTERNAL REVENUE TAXES
CTA in Divisions
Summary of procedures before the MTC and RTC

1. Appeals from the Judgments, Resolutions or
in the exercise of their exclusive original
Orders of the RTC in their original jurisdiction
jurisdiction
in criminal offenses arising from violations of
the NIRC or TCCP and other laws administered
1. Initiatory action – Where the assessment has
by the BIR or BOC, where the principal amount
attained a state of finality because the
of taxes and fees, exclusive of charges and
assessment has not been disputed, the BIR files
penalties, claimed is less than ₱1 million or
an ordinary suit for the collection of a sum of
where there is no specified amount claimed;
money with the court of appropriate
and
jurisdiction.
2. Criminal offenses over Petitions for Review of

2. Appealed cases – Decisions of the MTCs
the Judgments, Resolutions or Orders of the
rendered in the exercise of their original
RTC in the exercise of their appellate
jurisdiction are appealed to the RTC by means of
jurisdiction over tax cases originally decided
notice of appeal.
by the MeTC, MTC and MCTC. (Sec. 7(b)(2)(b),
RA. No. 1125 as amended by RA. No. 9282)
Decision of the RTC rendered in aid of their
appellate jurisdiction shall be appealed to the
CTA en banc
CTA En Banc, by means of petition for review.
1. Decisions, Resolutions or Orders on Motions for

Adverse decisions of the CTA En Banc shall be
Reconsideration or New Trial of the Court in
appealed to the SC by means of petition for
division in the exercise of its exclusive original
review.
jurisdiction over criminal offenses arising from
violations of the NIRC or TCCP and other laws
Decisions or judgment rendered by the CTA in
administered by the BIR or BOC where the
divisions in the exercise of their exclusive
principal amount of taxes and fees, exclusive of
original jurisdiction
charges and penalties is ₱1 million or more;
2. Decisions, Resolutions or Orders on Motions for
1. If no MR or MNT – Execution of judgment
Reconsideration or New Trial of the Court in
2. If there is a motion filed with the Division that
division in the exercise of its exclusive
rendered the judgment:
appellate jurisdiction over criminal offenses
arising from violations of the NIRC or TCCP and
a. If denied, appeal by means of a petition for
other laws administered by the BIR or BOC; and
review before the CTA En Banc;
3. Decisions, Resolutions or Orders of the RTC
b. If denied by CTA En Banc, appeal to the SC by
decided or resolved by them in the exercise of
means of a petition for review on certiorari.
their appellate jurisdiction over criminal
offenses arising from violations of the NIRC or
TCCP and other laws administered by the BIR or ii. LOCAL TAXES
BOC where the principal amount of taxes and
fees, exclusive of charges and penalties claimed The procedures for internal revenue taxes are the
is less than ₱1 million. same for local and real property taxes if the case is
brought before the CTA in division in the exercise of
its original jurisdiction.

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Remedies Available to taxpayer prior to discovery of fraud or intent to evade payment.

assessment
2. Collection
1. To question the constitutionality or legality of
tax ordinances or revenue measures on appeal Within 5 years from date of assessment by
(Sec. 187, LGC); or administrative or judicial action.
2. Petition for declaratory relief, when applicable.
Grounds for the suspension of the running of the
Q: How does the LGU concerned enforce the prescriptive period for assessment and
judicial remedy in collection of taxes? collection of local taxes: (PRO)
A: The LGU may enforce collection of delinquent 1. The treasurer is legally prevented from making
taxes, fees, charges and other revenues by civil the assessment or collection;
action in any court of competent jurisdiction. The 2. The taxpayer requests for a reinvestigation and
civil action shall be filed by the local treasurer executes a waiver in writing before the
within 5 years from the date of assessment. (Sec. expiration of the period within which to assess
194, LGC) or collect; and
3. The taxpayer is out of the country or otherwise
NOTE: The LGU files an ordinary suit for the cannot be located (Sec. 194, LGC)
collection of sum of money before the MTC, RTC or
CTA depending upon the jurisdictional amount. Remedies available to taxpayer after
assessment
Q: May regular court issue injunction to restrain
LGUs from collecting taxes? 1. Protest of assessment (Sec. 195, LGC)
A: YES. The LGC does not specifically prohibit an Within 60 days from the receipt of the notice of
injunction enjoining the collection of local taxes assessment, the taxpayer may file a written
unlike in the NIRC where there is an express protest with the local treasurer; otherwise, the
prohibition. Nevertheless, the Court noted that assessment shall become final and executory.
injunctions enjoining the collection of local taxes are The local treasurer shall decide the protest
frowned upon and should therefore be exercised within 60 days from the time of its filing.
with extreme caution. (Angeles City v. Angeles City
Electric Corporation G.R. No.166134, 29 June 2010) The taxpayer shall have 30 days from the
receipt of the denial of the protest or from the
Prescriptive Period for Local Taxes (Sec. 194, lapse of the 60-day prescribed period within
LGC) which to appeal with the court of competent
jurisdiction.
1. Assessment
NOTE: In case of an illegal assessment where
GR: Within 5 years from the date they become the assessment was issued without authority,
due. exhaustion of administrative remedies is not
necessary and the taxpayer may directly resort
NOTE: No action for collection of such taxes, to judicial action. The taxpayer shall file a
fees, or charges, whether administrative or complaint for injunction before the RTC to
judicial, shall be instituted after the expiration of enjoin the local government unit from
such period. collecting real property taxes. (City of Lapu-
Lapu v. PEZA, G.R. No. 187853, 26 Nov. 2014)
XPN: In case of fraud or intent to evade the
payment of taxes, fees, or charges, the
assessment may be made 10 years from

2. Claim for refund of tax credit (Sec. 196, LGC) Q: Will the CTA acquire jurisdiction even in the
absence of a decision of the CIR or COC?
Prior to a judicial action for recovery of tax
erroneously or illegally collected, a written A:
claim for refund or credit must first be filed with GR: CTA has jurisdiction only, if there is a decision
the local treasurer. of the CIR or COC.
In any case, the judicial action for claim for XPNs:

refund or credit must be made within 2 years 1. If COC has not rendered a decision and the suit
from the date of the payment of such tax, fee, or is about to prescribe.
charge, or from the date the taxpayer is entitled Rationale: If the taxpayer waits, then his right
to a refund or credit. of action prescribes.
Q: What are the ways by which the civil tax 2. Deemed Denial / Inaction of the CIR in a refund
liability of a taxpayer is enforced by the of illegally or erroneously collected tax and the
government through civil actions? 2-year prescriptive period is about to expire or
after the lapse of 120-day period or 90-day
A: period (for claims for refund 2018 onwards
1. By filing a civil case for the collection of sum of under TRAIN) to decide in case of refund of
money with the proper regular court. unutilized input VAT; or
2. By filing an answer to the petition for review
filed by the taxpayer with the CTA. RATIONALE: The taxpayer would be left at the
mercy of the Commissioner, who by his delay
WHO MAY APPEAL, MODE OF APPEAL, leaves the taxpayer without any positive and
AND EFFECT OF APPEAL expedient relief from the courts.
Who may Appeal 3. Deemed denial or inaction - where the CIR has
not acted upon a protested assessment within
The following may appeal to the CTA in Division: 180 days from submission of all relevant
documents supporting the protest, the taxpayer
Any party adversely affected by a decision, ruling, or adversely affected by the inaction may appeal to
inaction of the: the CTA within 30 days from the lapse of the
1. CIR on disputed assessments or claims for 180-day period.
refund of internal revenue taxes;
2. COC; Q: On January 15, 1996, a taxpayer received an
3. Secretary of Finance; assessment for an internal revenue tax
4. Secretary of Trade and Industry; deficiency. On February 10, 1996, he filed a
5. Secretary of Agriculture; or petition for review with the CTA. Could the Tax
6. RTC in the exercise of its original jurisdiction. Court entertain the petition?
The following may appeal to the CTA en banc: A: NO. Before a taxpayer can avail of judicial remedy
he must first exhaust administrative remedies by
Any party adversely affected by a decision or ruling filing a protest within 30 days from receipt of the
of: assessment.
1. The CTA in Division on a MR or MNT;
2. The CBAA, in the exercise of its appellate It is the Commissioner's decision on the protest
jurisdiction; or that gives the Tax Court jurisdiction over the case
3. The RTC, in the exercise of its appellate provided that the appeal is filed within 30 days from
jurisdiction. (Sec. 11 R.A. 1125 as amended) receipt of the Commissioner's decision. An
assessment by the BIR is not the Commissioner's

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decision from which a petition for review may be the 180-day period, appeal to the CTA should be
filed with the CTA. Rather, it is the action taken by made within 30 days after receipt of copy of
the Commissioner in response to the taxpayer’s such decision.
protest on the assessment that would constitute the
appealable decision. (Sec. 7, R.A. 1125, as amended) In case of inaction of the CIR on claims for
refund of internal revenue taxes erroneously
Q: Under the above factual setting, the taxpayer, or illegally collected under Sec. 204(C) and 229
instead of questioning the assessment he of the NIRC, the 30-day period to file the
received on January 15, 1996 paid, on March 1, petition for review before the CTA after the
1996 the "deficiency tax" assessed, the taxpayer lapse of 180 days must be within the 2-year
requested a refund from the Commissioner by period prescribed by law from payment of tax.
submitting a written claim on March 1, 1997. It However, the 2-year period is not jurisdictional
was denied. The taxpayer, on March 15, 1997, and may be suspended for reasons of equity and
filed a petition for review with the CA. Could the other special circumstances. (RRCTA)
petition still be entertained? (1997 BAR)
In claims for refund for unutilized input VAT
A: NO. The petition for review cannot be payments, 2-year period does not refer the
entertained by the CA since decisions of the filing of judicial claim with the CTA but to the
Commissioner on cases involving claim for tax filing of the administrative claim with the CIR
refunds are within the exclusive and primary (CIR v. San Roque power Corporation, G.R. No.
jurisdiction of the CTA. (Sec. 7, R.A. 1125, as 187485, 12 Feb. 2013) The taxpayer will always
amended) have 30 days to file the judicial claim regardless
of his action or inaction. (CIR v. Mindanao II
Mode of Appeal Geothermal Partnership, G.R. No. 191498, 15 Jan.
2014)
In appeals to the CTA in Division:
NOTE: 120 + 30 days is mandatory and
1. By filing a Petition for Review under a jurisdictional (now 120 days reduced to 90
procedure analogous to that provided for under days under the TRAIN Law)
Rule 42 of the ROC, within 30 days from the
receipt of the decision or ruling or from the
expiration of the period fixed by law or inaction
of the CIR on disputed assessments or claim for
refund of internal revenue taxes erroneously or
illegally collected, the COC, the Secretary of
Finance, the Secretary of Trade & Industry, the
Secretary of Agriculture, and the RTC in the
exercise of their original jurisdiction.
NOTE: The 30-day period to appeal decisions of

the RTC to CTA is extendible. (SM Land v. City of
Manila, G.R. No. 197151, 22 Oct. 2012)
In case of disputed assessments, inaction of

the CIR within the 180-day period shall be
deemed a denial, thus, appealable via a petition
for review to the CTA within 30 days from
receipt of copy of decision. Should the taxpayer
opt to await the final decision of the CIR beyond

SUMMARY OF RULE LAID DOWN IN MINDANAO II GEOTHERMAL PARTNERSHIP CASE
Type of claim Inaction Appeal

Disputed Inaction within 180-day period is a Appealable 30 days to CTA from receipt
assessments deemed denial. of denial
Claims for refund of Appealable 30 days to CTA from receipt
internal revenue Inaction within the 2-year prescriptive of denial provided it is within 2 years
taxes erroneously period (from date of payment). from date of payment. 2-year period is
paid not jurisdictional.
Inaction within 120-day or 90-day
period (as the case may be) is a deemed Appealable 30 days to CTA from receipt
Claims for unutilized
denial. 2-year period refers to of denial or from the lapse of the 120-day
input VAT
institution of administrative claim, and period to decide.
it is jurisdictional.
NOTE: 90-day period to decide the claim for refund for VAT under TRAIN
Remedy of a party affected by a ruling or Remedy of a party affected by a decision or

decision of the CTA Division ruling of the CTA en banc
The adverse party may file a MR or MNT before the The adverse party may file a Petition for Review on
same Division of the CTA within 15 days from notice Certiorari under Rule 45 of the ROC, through a
thereof. verified petition before the Supreme Court, within 15
days from receipt thereof. (Sec. 1, Rule 16, R.A. 9282)
However, in criminal cases, the general rule
applicable in regular courts on matters of NOTE: The MR or MNT filed before the Court shall
prosecution and appeal shall apply. be deemed abandoned if, during its pendency, the
movant shall appeal to the SC. (Sec. 1, Rule 16, R.A.
In appeals to the CTA En Banc: 9282)
1. By filing a Petition for Review under a 30-day Prescriptive Period for Appeal with the
procedure analogous to that provided for under CTA
Rule 43 of the ROC, within 15 days from receipt
of decision or resolution of the Court in Division 1. It runs from the date the taxpayer receives the
on a MR or MNT. Upon proper motion and the appealable decision or 30 days after the lapse of
payment of the full amount of the docket and 180 days within which the BIR should act.
other lawful fees and deposit for costs before
the expiration of the reglementary period The two periods are mutually exclusive. (RCBC v.
herein fixed, the Court may grant an additional CIR, G.R. No. 168498, 16 June 2006)
period not exceeding 15 days from the
expiration of the original period within which to 2. It is jurisdictional and mandatory (CIR v. First
file the petition for review. Express Pawnshop Company, Inc., G.R. No.
172045-46, 16 June 2009)
2. By filing a Petition for Review under a
procedure analogous to that provided for 3. It is non-extendible. (Filipinas Investment and
under Rule 43 of the ROC, within 30 days from Finance Corporation v. CIR, G.R. No. L-23501, 16
a decision or ruling of the CBAA or the RTC in May 1967)
the exercise of their appellate jurisdiction. (Sec.
4, Rule 8, RRCTA) After the 30-day period, an assessment may no

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longer be disputed through the simple expedient of Q: A taxpayer received a tax deficiency
paying the protested tax and by subsequently assessment of P1.2 Million from the BIR
claiming it as a refund within the period of two demanding payment within 10 days; otherwise,
years from date of payment. (Sec. 3, Rule 8, RRCTA) it would collect through summary remedies. The
taxpayer requested for a reconsideration
Q: Does the motion for reconsideration toll the stating the grounds therefor. Instead of
30-day period to appeal to the CTA? resolving the request for reconsideration, the
BIR sent a Final Notice before Seizure to the
A: NO. A motion for reconsideration of the denial of taxpayer.
the administrative protest does not toll the 30-day
period to appeal to the CTA. (Fishwealth Canning May this action of the CIR be deemed a denial of
Corporation v. CIR, G.R. No. 179343, 21 Jan. 2010) the request for reconsideration of the taxpayer
to entitle him to appeal to the CTA? Decide with
Q: A Co., a Philippine corporation, received an reasons. (2005 BAR)
income tax deficiency assessment from the BIR
on May 5, 1995. On May 31, 1995, A Co. filed its A: YES. The Final Notice before Seizure constitutes
protest with the BIR. On July 30, 1995, A Co. as a decision on a disputed or protested assessment,
submitted to the BIR all relevant supporting hence, appealable to the CTA. The Final Notice
documents. The CIR did not formally rule on the before Seizure should be considered as the CIR’s
protest but on January 25, 1996, A Co. was decision of disposing the request for
served a summons and a copy of the complaint reconsideration. The content and tenor of the letter
for collection of the tax deficiency filed by the itself supports the theory that it was the BIR’s final
BIR with the RTC. On February 20, 1996, A Co. act regarding the request for reconsideration. (CIR
brought a Petition for Review before the CTA: v. Isabela Cultural Corporation, G.R. No. 135210, 11
The BIR contended that the Petition is July 2001)
premature since there was no formal denial of
the protest of A Co. and should therefore be NOTE: A final demand letter for payment of
dismissed. (2002, 1999 BAR) delinquent taxes may be considered a decision on a
disputed or protested assessment if no final
Does the CTA have jurisdiction over the case? decision on disputed assessment has been issued
prior to the final demand letter for payment.
A: YES. The CTA has jurisdiction over the case
because this qualifies as an appeal from the Effect of the Appeal (2004, 2010 BAR)
Commissioner’s decision on disputed assessment.
When the Commissioner decided to collect the tax GR: An appeal to the CTA shall not suspend payment,
assessed without first deciding on the taxpayer’s levy, distraint and/or sale of any property of
protest, the effect of the Commissioner’s action of taxpayer for the satisfaction of his tax liability.
filing a judicial action for collection is a decision of
denial of the protest, in which event the taxpayer XPN: However, when in the opinion of the CTA, the
may file an appeal with the CTA. (Dayrit v. Cruz, L- collection of tax may jeopardize the interest of the
39910, 26 Sept. 1988) government and/or the taxpayer, the Court may
suspend or restrain collection of tax and require the
Q: Does the RTC have jurisdiction over the taxpayer either to:
collection case filed by the BIR? Explain. 1. To deposit the amount claimed; or
2. To file a surety bond for not more than
A: NO. The filing of an appeal with the CTA has the double the amount of the tax due (Sec. 11,
effect of divesting the RTC of jurisdiction over the R.A. 1125)
collection case. There is no final, executory and
demandable assessment which can be enforced by Q: On June 1, 2003, Global Bank received a final
the BIR, once a timely appeal is filed. notice of assessment from the BIR for deficiency

documentary stamp tax in the amount of P5 amounting to P48 million. Globesmart filed a
Million. On June 30, 2003, Global Bank filed a protest against the assessment, but the CIR
request for reconsideration with the denied the protest. Hence, Globesmart filed a
Commissioner of Internal Revenue. The petition for review in the CTA with an urgent
Commissioner denied the request for motion to suspend the collection of tax.
reconsideration only on May 30, 2006, at the
same time serving on Global Bank a warrant of After hearing, the CTA Division issued a
distraint to collect the deficiency tax. If you were resolution granting the motion to suspend but
its counsel, what will be your advice to the bank? required Globesmart to post a surety bond
Explain. (2006 BAR) equivalent to the deficiency assessment within
15 days from notice of the resolution.
A: The denial for the request for reconsideration is Globesmart moved for the partial
the final decision of the CIR. I would advise Global reconsideration of the resolution and for the
Bank to appeal the denial to the CTA within 30 days reduction of the bond to an amount it could
from receipt. I will further advise the bank to file a obtain. The CTA Division issued another
motion for injunction with the CTA to enjoin the resolution reducing the amount of the surety
Commissioner from enforcing the assessment bond to P24 million. The latter amount was still
pending resolution of the appeal. While an appeal to more than the net worth of Globesmart Services,
the CTA will not suspend the payment, levy, Inc. as reported in its audited financial
distraint, and/or sale of any property of the statements.
taxpayer for the satisfaction of its tax liability, the
CTA is authorized to give injunctive relief if the a. May the collection of taxes be suspended?
enforcement would jeopardize the interest of the
taxpayer, as in this case, where the assessment has b. Is the CTA Division justified in requiring
not become final (Lascona Land Co. v. CIR, CTA Case Globesmart to post a surety bond as a
No. 5777, 04 Jan. 2000) condition for the suspension of the
deficiency tax collection? (2017 BAR)
Q: RR disputed a deficiency tax assessment and
upon receipt of an adverse decision by the CIR, A:
filed an appeal with the CTA. While the appeal is a. YES. As provided by R.A. No. 1125, as amended
pending, the BIR served a warrant of levy on the by R.A. No. 9282, that when in the opinion of the
real properties of RR to enforce the collection of Court the collection by the aforementioned
the disputed tax. Granting arguendo that the BIR government agencies may jeopardize the
can legally levy on the properties, what could RR interest of the Government and/ or the
do to stop the process? Explain briefly. (2004 taxpayer, the Court any stage of the proceeding
BAR) may suspend the said collection and require the
taxpayer either to deposit the amount claimed
A: RR should file a motion for injunction with the or to file a surety bond for not more than double
CTA to stop the administrative collection process. the amount with the Court.
An appeal to the CTA shall not suspend the
enforcement of the tax liability, unless a motion to b. NO. The Supreme Court, in the case of
that effect shall have been presented in court and Tridharma Marketing Corporation v. CTA (G.R.
granted by it on the basis that such collection will No. 215950, June 20, 2016), cited the case of
jeopardize the interest of the taxpayer or the Pacquiao v. CTA (G.R. No. 213394, April 6, 2016)
Government (Pirovano v. CIR, 14 G.R. No. L-19865, 31 where it ruled that the CTA should first conduct
July 1965) a preliminary hearing for the proper
determination of the necessity of a surety bond
Q: Globesmart Services, Inc. received a FAN with or the reduction thereof. In the conduct of its
FLD from the BIR for deficiency income tax, VAT, preliminary hearing, the CTA must balance the
and withholding tax for the taxable year 2016 scale between the inherent power of the State

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to tax and its right to prosecute perceived Nov. 1956)

transgressors of the law, on one side; and the
constitutional rights of petitioners to due 2. Method of collection contrary to law
process of law and the equal protection of the
laws, on the other. In this case, the CTA failed to CTA has ample authority to issue injunctive
consider that the amount of the surety bond writs to restrain the collection of tax and to
that it is asking Globesmart to pay is more than even dispense with the deposit of the amount
its net worth. Thus, it is necessary for the CTA claimed or the filing of the required bond,
to first conduct a preliminary hearing to give whenever the method employed by the CIR in
taxpayer an opportunity to prove its inability to the collection of tax allegedly jeopardizes the
come up with such amount. interests of a taxpayer for being patently in
violation of the law. (Sps. Pacquiao v. CTA, G.R.
SUSPENSION OF COLLECTION OF TAXES No. 213394, 06 Apr. 2016)
Requisites for suspension of collection of tax: It would certainly be an absurdity on the part of
the CTA to declare that the collection by the
1. There is an appeal to the CTA from a decision of summary methods of distraint and levy was
the CIR; violative of the law, and then, on the same
2. In the opinion of the CTA, the collection may breath, require the petitioner to deposit or file
jeopardize the interest of the government a bond as a pre-requisite of the issuance of a
and/or the taxpayer; writ of injunction. (Collector v. Zulueta, G.R. No.
3. The taxpayer may be required to deposit the L-8840, 08 Feb. 1957)
amount claimed or to file a surety bond for not
more than double the amount with the Court NOTE: The prohibition on the issuance of a writ of
(Sec. 11, R.A. 1125); and injunction to enjoin the collection of taxes is applied
4. That the appeal is not frivolous or dilatory. only to national internal revenue taxes, not to local
taxes. (Angeles City v. Angeles Electric Corp., G.R. No.
NOTE: The motion for the suspension of the 166134, 29 June 2010)
collection of tax shall be verified and shall state
clearly and distinctly the facts and the grounds Q: In the investigation of the withholding tax
relied upon in support of the motion. (Sec. 4, Rule 10, returns of AZ Medina Security Agency (AZ
RRCTA) Medina) for the taxable years 1997 and 1998, a
discrepancy between the taxes withheld from its
Exceptions to the requirement of posting of employees and the amounts actually remitted to
bond the government was found. Accordingly, before
the period of prescription commenced to run,
1. Allegations of Prescription of the BIR issued an assessment and a demand
administrative action for collection letter calling for the immediate payment of the
deficiency withholding taxes in the total amount
Collector of Internal Revenue cannot, after 3 of P250, 000.00. Counsel for AZ Medina
years from the time the taxpayer has filed his protested the assessment for being null and void
income tax returns or from the time when he on the ground that no pre-assessment notice
should have filed the same, make any summary had been issued. However, the protest was
collection of the deficiency income taxes denied. Counsel then filed a petition for
demanded thru administrative methods and prohibition with the CTA to restrain the
that the warrant of distraint and levy as well as collection of the tax.
the contemplated sale at public auction of the
properties of the taxpayer are null and void Will the special civil action for prohibition
being as they are in violation of Sec. 51 (d) of the brought before the CTA under Sec. 11 of R.A, No.
NIRC. (Collector v. Avelino, G.R. No. L-9202, 19 1125 prosper? Discuss your answer. (2002 BAR)

A: NO. The special civil action for prohibition will by witnesses of such documentary evidence.
not prosper because the CTA has no jurisdiction to
entertain the same. The power to issue writ of The court official have no power to rule on
injunction provided for under Section 11 of R.A. objections to any question or to the admission
1125 is only ancillary to its appellate jurisdiction. of exhibits, which objections shall be resolved
The CTA is not vested with original jurisdiction to by the Court upon submission of his report and
issue writs of prohibition or injunction the transcripts within 10 days from termination
independently of and apart from an appealed case. of the hearing. (Sec. 4, Rule 12, RRCTA)
The remedy is to appeal the decision of the BIR.
(Collector v. Yuseco, L-12518, 28 Oct. 1961) Q: How are evidence taken in the proceedings
before the CTA?
Taking of evidence
A: In case of voluminous documents or long
CTA may receive evidence in the following cases: accounts, the party who desires to introduce in such
evidence must, upon motion and approval by the
1. In all cases falling within the original Court, refer the voluminous documents to an
jurisdiction of the CTA in division pursuant to independent CPA for the purpose of presenting:
Sec. 3, Rule 4 of RRCTA.
2. In appeals in both civil and criminal cases a. A summary of the invoices or receipts and the
where the court grants new trial pursuant to amount of taxes paid; and
Sec. 2, Rule 53 and Sec. 12, Rule 124 of the ROC. b. A certification of the independent CPA attesting
to the correctness of the contents of the
Persons authorized to take evidence: summary after making an examination,
evaluation and audit of voluminous receipts,
1. Justice of the CTA invoices or long accounts. (Sec. 5, Rule 12,
RRCTA)
It may be made motu proprio or upon proper
motion, when: Motion for Reconsideration or New Trial
a. The determination of a question of fact Any aggrieved party may seek a reconsideration or
arises at any stage of the proceedings; new trial of any decision, resolution or order of the
b. The taking of an account is necessary; or Court within 15 days from the date he received
c. The determination of an issue of fact notice of the decision, resolution or order of the
requires the examination of a long account. Court in question. The adverse party may file an
(Sec. 3, Rule 12, RRCTA) opposition to the MR or MNT within 10 days after
receipt of a copy of such MR or MNT. (Secs. 1 and 2,
2. Court official Rule 15, RRCTA)
a. Clerk of court; Grounds for filing a Motion for New Trial

b. Division clerk of court;
c. their assistants who are members of the 1. Fraud, accident, mistake or excusable
Philippine Bar; and negligence (FAME) which ordinary prudence
d. Court attorney. (Sec. 4, Rule 12, RRCTA) could not have guarded against and by reason
of which such aggrieved party has probably
NOTE: The taking of evidence by Court official been impaired in his rights; or
applies only in default or ex parte hearings, or 2. Newly discovered evidence, which he could not,
where the parties agree in writing. with reasonable diligence, have discovered and
produced at the trial and, which, if presented,
It shall be for the sole purpose of marking, would probably alter the result.
comparison with the original, and identification

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A motion for new trial shall include all grounds then 2. the taxpayer is willing to deposit the amount
available and those not included shall be deemed being collected or to file a surety bond for more
waived. (Sec. 5, Rule 15, RRCTA) than double the amount of the tax to be fixed by
the court (Sec. 11, R.A. 1125)
Effect of filing a Motion for Reconsideration or
New Trial NOTE: The CTA may issue injunction only in the
exercise of its appellate jurisdiction. (CIR v. Yuseco,
The filing of the MR or MNT shall suspend the G.R. No. L-12518, 28 Oct. 1961)
running of the period within which an appeal may
be perfected. (Sec. 4, Rule 15, RRCTA) b. CRIMINAL CASES
NOTE: No second MR or MNT shall be allowed. (Sec.

7, Rule 15, RRCTA)
The motion shall be in writing stating its grounds; a

INSTITUTION AND PROSECUTION OF CRIMINAL
ACTION
All criminal actions before the Court in Division in

I
written notice of which shall be served by the
the exercise of its original jurisdiction shall be
movant on the adverse party. A motion on the
instituted by the filing of an information in the name
ground of FAME shall be supported by affidavits of
of the People of the Philippines.
merits, while a motion on the ground of newly
discovered evidence shall be supported by affidavits
In criminal actions involving violations of the NIRC
of the witnesses by whom such evidence is expected
and other laws enforced by BIR, the CIR must
to be given, or by duly authenticated documents
approve their filing.
which are proposed to be introduced in evidence.
Failure to comply shall render the MR or MNT “pro
In criminal actions involving violations of the TCCP
forma”, which shall not suspend the period. Also, if
and other laws enforced by the BOC, the COC must
the MR is directed to the Secretary of Finance, it
approve their filing. (Sec. 2, Rule 9, RRCTA)
shall not suspend the period.
All criminal actions will be under the direction and

iii. INJUNCTION NOT AVAILABLE control of the public prosecutor.
TO RESTRAIN COLLECTION; EXCEPTIONS
NOTE: The institution of the criminal action shall
Collection of taxes should not be enjoined except interrupt the running of the period of prescription.
upon clear showing of a right to an exemption. (Ibid)
RATIONALE: Lifeblood theory. (Northern Lines Inc.

v. CA, G.R. No. L-41376-77, 29 June 1988)
GR: Collection of internal revenue taxes and

INSTITUTION OF CIVIL ACTION IN
CRIMINAL ACTION
Rule on the institution of civil action with

I
customs duties cannot be enjoined. Even an appeal
criminal action (2010 BAR)
to the CTA shall not suspend the payment, levy,
distraint and sale of taxpayer’s property as a rule.
The criminal action and the corresponding civil
action for the recovery of civil liability for taxes and
XPNs: However, the CTA is empowered to suspend
penalties shall be deemed jointly instituted in the
the collection of internal revenue taxes and custom
same proceeding. The filing of the criminal action
duties in cases pending appeal only when:
shall necessarily carry with it the filing of the civil
action. No right to reserve the filing of such civil
1. in the opinion of the court the collection by the
action separately from the criminal action shall be
BIR may jeopardize the interest of the
allowed or recognized (Sec. 11, Rule 9, RRCTA)
government and/ or taxpayer; and

Q: How are criminal actions prosecuted? from receipt of a copy of the decision or
resolution appealed from. (Sec. 9, Rule 9,
A: In criminal actions involving violation of the NIRC RRCTA)
or other laws enforced by the BIR, and violations of
the TCCP or other laws enforced by the BOC, the Q: Who shall act as a representative of the
prosecution may be conducted by their respective People and the Government in the criminal
duly deputized legal officers. (Sec. 3, Rule 9, RRCTA) action?
Q: After filing an Information for violation of A: The Solicitor General shall represent the People
Section 254 of the NIRC (Attempt to Evade or of the Philippines and government officials sued in
Defeat Tax) with the CTA, the Public Prosecutor their official capacity in all cases brought to the CTA
manifested that the People is reserving the right in the exercise of its appellate jurisdiction. He may
to file the corresponding civil action for the deputize the legal officers of the BIR in cases
recovery of the civil liability for taxes. As brought under the NIRC or other laws enforced by
counsel for the accused, comment on the the BIR, or the legal officers of the BOC in cases
People's manifestation. (2015 BAR) brought under the TCCP or other laws enforced by
the BOC, to appear on behalf of the officials of said
A: I will move for the denial of the manifestation. agencies sued in their official capacity: Provided,
Any provision of law or the ROC to the contrary however, such duly deputized legal officers shall
notwithstanding, the criminal action and the remain at all times under the direct control and
corresponding civil action for the recovery of civil supervision of the Solicitor General. (Sec. 10, Rule 9,
liability for taxes and penalties shall at all times be RRCTA)
simultaneously instituted with, and jointly
determined in the same proceeding by the CTA, the 3. APPEAL TO THE CTA EN BANC
filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action, Q: May a decision or resolution of the CTA in
and no right to reserve the filing of such civil action Division be appealable directly to the CTA En
separately from the criminal action shall be Banc in its exercise of its exclusive appellate
recognized. jurisdiction?
PERIOD TO APPEAL A: NO. The petition for review of a decision or

resolution of the Court in Division must be preceded
Appeal and Period to Appeal by the filing of a timely motion for reconsideration or
new trial with the Division. (Sec. 1, Rule 8, RRCTA)
1. An appeal to the Court in criminal cases decided
by a RTC in the exercise of its original NOTE: The word “must” clearly indicates the
jurisdiction shall be taken by filing a notice of mandatory (not directory) of the nature of a
appeal pursuant to Sections 3(a) and 6, Rule requirement.
122 of the ROC within 15 days from receipt of a
copy of the decision or final order with the court Q: On May 15, 2013, CCC, Inc. received the Final
which rendered the final judgment or order Decision on Disputed Assessment issued by the
appealed from and by serving a copy upon the CIR dismissing the protest of CCC, Inc. and
adverse party. The Court in Division shall act on affirming the assessment against said
the appeal. corporation. On June 10, 2013, CCC, Inc. filed a
Petition for Review with the CTA in division. On
2. An appeal to the CTA En Banc in criminal cases July 31, 2015, CCC, Inc. received a copy of the
decided by the Court in Division or the RTC in Decision dated July 22, 2015 of the CTA division
the exercise of their appellate jurisdiction shall dismissing its Petition. CCC, Inc. immediately
be taken by filing a petition for review as filed a Petition for Review with the CTA en banc
provided in Rule 43 of the ROC within 15 days on August 6, 2015. Is the immediate appeal by

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CCC, Inc. to the CTA en banc of the adverse motion is mandatory, and not merely directory. Due
Decision of the CTA division the proper remedy? to this procedural lapse, the Amended Decision has
(2015 BAR) attained finality insofar as the CIR is concerned. The
CIR, therefore, may no longer question the merits of
A: NO. CCC, Inc. should first file a motion for the case before the SC. (Asiatrust Development Bank,
reconsideration with the CTA Division. Petition for Inc. v. CIR, G.R. No. 201530, 19 Apr. 2017)
review of a decision or resolution of the Court in
Division must be preceded by the filing of a timely Q: Judy Anne was criminally charged for filing a
motion for reconsideration or new trial with the fraudulent income tax return before the CTA.
Division. Before the CTA En Banc could take Thereafter, she filed a Motion to Quash in the
cognizance of the petition for review concerning a CTA First Division which has been denied. The
case falling under its exclusive appellate Motion for reconsideration filed was also
jurisdiction, the litigant must sufficiently show that denied. A Motion for Extension of time was filed
it sought prior reconsideration or moved for a new for her Petition for review in CTA en banc.
trial with the concerned CTA division. Thereafter, the Petition for Review before the
CTA en banc was filed. Both the motion for
Q: Asiatrust Development Bank, Inc. (Asiatrust) extension of time and the petition for review
received from the CIR Formal Letters of Demand were denied by the CTA en banc on the ground
(FLD) with Assessment Notices for deficiency that a Motion to Quash is an interlocutory order
internal revenue taxes. Asiatrust timely therefore, unappealable. Was the dismissal by
protested the assessment notices. Due to the the CTA en banc proper?
inaction of the CIR on the protest, Asiatrust filed
before the CTA a Petition for Review praying for A: YES. The Petitioner cannot file a Petition for
the cancellation of the tax assessments for Review before the CTA en banc to appeal the
deficiency taxes and also claimed that it availed resolution of the CTA First Division denying her
of the Tax Amnesty Law. The CTA Division Motion to Quash. The Resolution is interlocutory,
partially affirmed the CIR’s decision but thus, unappealable. (Santos v. People, G.R. No.
declared void some tax assessments for having 173176, 26 Aug. 2008)
been issued beyond the three-year prescriptive
period. CIR filed a Motion for Partial The CTA en banc has jurisdiction over final order
Reconsideration of the assessments assailing or judgment but not over interlocutory orders
the CTA Division's finding of prescription. The issued by the CTA in division. Considering that no
CTA Division amended its decision. Unsatisfied, appeal can be taken from interlocutory CTA Orders,
both parties appealed to CTA En Banc. The CTA the aggrieved party may file an appropriate special
En Banc denied the CIR' s appeal for failure to civil action under Rule 65 pursuant to Sec. 1, Rule 41
file a prior motion for reconsideration of the of the ROC, as in this case. (CIR v. CTA and CBK Power
Amended Decision. The CIR contends that the Co. Ltd., G.R. Nos. 203054-55, 29 July 2015)
CTA En Banc erred in dismissing his appeal for
failing to file a motion for reconsideration on the Q: In response to an adverse BIR ruling against
Amended Decision as a perusal of the Amended it and as reviewed by the Secretary of Finance,
Decision shows that it is a mere resolution, GGG, Inc. filed with the Court of Appeals a
modifying the original Decision. Is the Petition for Review under Rule 43 of the ROC.
contention of CIR meritorious? The CA, however, dismissed the petition for lack
of jurisdiction declaring that it is the CTA which
A: NO. Section 1, Rule 8 of the Revised Rules provide has jurisdiction over the issues raised. Before
that an appeal to the CTA En Banc must be preceded which Court should GGG, Inc. seek recourse from
by the filing of a timely motion for reconsideration the adverse ruling of the Secretary of Finance in
or new trial with the CTA Division. Failure to do so the exercise of the latter's power of review?
is a ground for the dismissal of the appeal as the (2015 BAR)
word "must" indicates that the filing of a prior

A: GGG should file its petition with the CTA. The for in Rule 47 of the Rules of Court, wherein the
Supreme Court held that the jurisdiction to review appellate court may annul a decision of the regional
the rulings of the Commissioner of Internal Revenue trial court, or the latter court may annul a decision
pertains to the CTA which has the authority to issue, of the municipal or metropolitan trial court. The
among others, a writ of certiorari in the exercise of laws creating the CTA and expanding its jurisdiction
its appellate jurisdiction. (R.A. Nos. 1125 and 9282) and the court’s own rules
of procedure (the Revised Rules of the CTA) do not
Q: The City of Liwliwa assessed local business sanction such a procedure.
taxes against Talin Company. Claiming that
there is double taxation, Talin Company filed a The CTA sitting En Banc cannot annul a decision of
Complaint for Refund or Recovery of Illegally one of its divisions. The divisions are not considered
and/or Erroneously collected Local Business separate and distinct courts but are divisions of one
Tax; Prohibition with Prayer to Issue and the same court; there is no hierarchy of courts
Temporary Restraining Order and Writ of within the Court of Tax Appeals, for they each
Preliminary Injunction with the RTC. The RTC remain as one court notwithstanding that they also
denied the application for a Writ of Preliminary work in divisions. By analogy, the Supreme Court
Injunction. Since its motion for reconsideration sitting En Banc is not an appellate court vis-à-vis its
was denied, Talin Company filed a special civil divisions, and it exercises no appellate jurisdiction
action for certiorari with the CA. The over the latter. Thus, it appears contrary to these
government lawyer representing the City of features that a collegial court, sitting En Banc, may
Liwliwa prayed for the dismissal of the petition be called upon to annul a decision of one of its
on the ground that the same should have been divisions which had become final and executory, for
filed with the CTA. Talin Company, through its it is tantamount to allowing a court to annul its own
lawyer, Atty. Frank, countered that the CTA judgment and acknowledging that a hierarchy exists
cannot entertain a petition for certiorari since it within such court. (CIR v. Kepco Ilijan Corporation,
is not one of its powers and authorities under G.R. No. 199422, 21 June 2016)
existing laws and rules. Decide. (2014 BAR)
Q: For the first quarter of 2007, the City of
A: The petition for certiorari before the CA must be Manila assessed Cosmos local business taxes
dismissed, since such petition should have been and regulatory fees in the total amount of
filed with the CTA. As stated in City of Manila v. P1,226,781.05, as contained in the Statement of
Caridad H. Grecia-Cuerdo (G.R. No. 175723, 02 Feb. Account dated January 15, 2007. Cosmos
2014), the CTA has the power to determine whether protested the assessment through a letter dated
or not there has been grave abuse of discretion January 18, 2007, arguing that Tax Ordinance
amounting to lack or excess of jurisdiction on the Nos. 7988 and 801, amending the Revenue Code
part of the RTC in issuing interlocutory orders in of Manila (RCM), have been declared null and
cases falling within the CTA’s exclusive appellate void. Cosmos received a letter from the City
jurisdiction. The CTA therefore has jurisdiction to Treasurer denying their protest. On March 8,
issue writs of certiorari in such cases. Furthermore, 2007, Cosmos filed its complaint with the RTC of
its authority to entertain petitions for certiorari Manila praying for the refund or issuance of a
questioning interlocutory orders issued by the RTC tax credit certificate in the amount of
is included in the powers granted by the P1,094,786.82. The RTC in its decision ruled in
Constitution and inherent in the exercise of its favor of Cosmos but denied the claim for refund.
appellate jurisdiction. The petition for review was raffled to the CTA
Division.
Q: Can the CTA En Banc entertain a petition for
annulment of a decision of the CTA Division? The CTA Division essentially ruled that Cosmos
Bottling Corporation's (Cosmos) local business
A: NO. Annulment of judgment implies power by a tax liability for the calendar year 2007 shall be
superior court over a subordinate one, as provided computed based on the gross sales or receipts

e

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for the year 2006. refund.
Instead of filing a motion for reconsideration or Where an assessment is to be protested or

new trial, the petitioners directly filed with the disputed, the taxpayer may proceed (a) without
CTA En Banc a petition for review praying that payment, or (b) with payment of the assessed
the decision of the CTA Division be reversed or tax, fee or charge. Whether there is payment of
set aside. In its Resolution of 16 February 2011, the assessed tax or not, it is clear that the
the CTA En Banc ruled that the direct resort to it protest in writing must be made within sixty
without a prior motion for reconsideration or (60) days from receipt of the notice of
new trial before the CTA Division violated assessment; otherwise, the assessment shall
Section 18 of R.A. No. 1125, as amended by R.A. become final and conclusive. Additionally, the
No. 9282 and R.A. No. 9503, and Section 1, Rule subsequent court action must be initiated
8 of the Revised Rules of the CTA (CTA Rules). within thirty (30) days from denial or inaction
by the local treasurer; otherwise, the
a. Did the CTA En Banc correctly dismiss the assessment becomes conclusive and
petition for review before it for failure of the unappealable.
petitioners to file a motion for
reconsideration or new trial with the CTA 1. Where no payment is made, the taxpayer's
Division? procedural remedy is governed strictly by
b. Can a taxpayer who had initially protested Section 195. That is, in case of whole or
and paid the assessment may shift its partial denial of the protest, or inaction by
remedy to one of refund? the local treasurer, the taxpayer's only
recourse is to appeal the assessment with
A: the court of competent jurisdiction. The
a. YES. The CTA En Banc correctly dismissed the appeal before the court does not seek a
petition for review. The filing of a motion for refund but only questions the validity or
reconsideration or new trial before the CTA correctness of the assessment.
Division is an indispensable requirement for
filing an appeal before the CTA En Banc. 2. Where payment was made, the taxpayer
may thereafter maintain an action in court
The CTA En Banc was correct in interpreting questioning the validity and correctness of
Section 18 of R.A. No. 1125, as amended by R.A. the assessment (Section 195, LGC) and at
9282 and RA. No. 9503 the same time seeking a refund of the taxes.
In truth, it would be illogical for the
The rules are clear. Before the CTA En Banc taxpayer to only seek a reversal of the
could take cognizance of the petition for review assessment without praying for the refund
concerning a case failing under its exclusive of taxes. Once the assessment is set aside by
appellate jurisdiction, the litigant must the court, it follows as a matter of course
sufficiently show that it sought prior that all taxes paid under the erroneous or
reconsideration or moved for a new trial with invalid assessment are refunded to the
the concerned CTA division. Procedural riles taxpayer. (Ibid)
are not to be trifled or be excused simply
because their noncompliance may have 4. PETITION FOR REVIEW ON CERTIORARI TO
resulted in prejudicing a party’s substantive THE SUPREME COURT
rights. (City of Manila and Office of the City
Treasurer of Manila v. Cosmos Bottling Effect of the appeal
Corporation, G.R. 196681, 27 June 2018)
The MR or MNT shall be filed before the Court shall
b. YES. A taxpayer who had protested and paid an be deemed abandoned if, during its pendency, the
assessment may later on institute an action for movant shall appeal to the Supreme Court (Sec. 1,

Rule 16, RRCTA) (CIR v. Kepco Ilijan Corporation, G.R. No. 199422, 21
June 2016)
Q: Who may file an appeal to the Supreme Court
by petition for review on certiorari? SUMMARY OF PROCEDURES IN APPEALING A
DECISION TO THE CTA AND BEYOND
A: A party adversely affected by a decision or ruling
of the Court En Banc may appeal therefrom by filing 1. Appeal within 30 days from receipt of
with the Supreme Court a verified petition for decision or period of inaction of the CIR,
review on certiorari within 15 days from receipt of COC, Secretary of Finance, or the CBAA or the
a copy of the decision or resolution, as provided in RTC
Rule 45 of the ROC.
GR: Appeal to the CTA Division by a petition for
If such party has filed a MR or MNT, the period review under Rule 42 within 30 days.
herein fixed shall run from the party’s receipt of a
copy of the resolution denying the MR or MNT. (Sec. XPN: In case of decisions of the CBAA or RTC in
1, Rule 16, RRCTA) the exercise of its appellate jurisdiction, appeal
to EN BANC by a petition for review under Rule
Q: Does the CTA have jurisdiction over an action 43.
to collect on a bond used to secure payment of
taxes? In criminal cases, appeal from the decision of
the RTC decided in the exercise of its original
A: NO. An action filed by the BOC against a bonding jurisdiction is via a notice of appeal filed within
company to collect on a bond used to secure 15 days from the receipt of decision.
payment of taxes is not a tax collection case but
rather a simple case for enforcement of a If the RTC acted in the exercise of its appellate
contractual liability. Hence, appellate jurisdiction jurisdiction, appeal to the En Banc by a petition
over the case properly lies with the CA rather than for review under Rule 43 within 15 days from
the CTA. (Phil. British Assurance Co., Inc. v. Republic the receipt of decision.
of the Phil., G.R. No. 185588, 02 Feb. 2010)
2. In case the decision of the Division was
Q: Can the SC take cognizance of a petition for adverse: File an MR or MNT with the same
annulment of a decision of the CTA Division or of division within 15 days from the receipt of the
the CTA En Banc? decision.
A: NO. A direct petition for annulment of a judgment The MR or the MNT is a condition precedent
of the CTA to the Supreme Court, meanwhile, is before bringing the case to the CTA En Banc.
unavailing, for the same reason that there is no (COC vs. Marina Sales, G.R. No. 183868, 22 Nov.
identical remedy with the High Court to annul a final 2010)
and executory judgment of the Court of Appeals. R.A.
No. 9282, Section 1 puts the CTA on the same level 3. In case the resolution of the Division on the
as the Court of Appeals, so that if the latter’s final MR is still adverse: File a petition for review
judgments may not be annulled before the SC, then with the CTA En Banc under Rule 43 within 15
the CTA’s own decisions similarly may not be so days from the receipt of the decision. The same
annulled. And more importantly, annulment of rule applies for criminal cases.
judgment is an original action, yet, it is not among
the cases enumerated in the Constitution’s Article 4. In case the decision of the CTA En Banc is still
VIII, Section 5 over which the SC exercises original adverse: File a review on certiorari with the SC
jurisdiction. Annulment of judgment also often under Rule 45 within 15 days from receipt of
requires an adjudication of facts, a task that the the decision. (Ingles, 2015)
Court loathes to perform, as it is not a trier of facts.

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MATRIX OF CTA JURISDICTION

EXCLUSIVE APPELLATE JURISDICTION TO REVIEW BY APPEAL
Decisions of the Commissioner on Internal Revenue in cases involving:
a. Disputed assessments
b. Refunds of internal revenue taxes, fees or other charges and penalties imposed thereto
c. Other matters arising under NIRC or other laws (under BIR)
Inaction by the Commissioner of Internal Revenue in cases involving:
a. Disputed assessments
b. Refunds of internal revenue taxes, fees or other charges and penalties imposed thereto
c. Other matters arising under NIRC or other laws (under BIR), where the NIRC provides a specific period
for action, in which case the inaction shall be deemed a denial.
Decisions, orders or resolutions of the Regional Trial Courts in local tax cases originally decided or resolved by
them in the exercise of their original or appellate jurisdiction.
Decisions of the Commissioner of Customs in cases involving:
a. Liability for customs duties, fees or other money charges
b. Seizure, detention or release of property affected
c. Fines, forfeitures or other penalties in relation thereto
d. Other matters arising under Customs Law or other laws (under BOC)
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;
Decisions of the Secretary of Finance on custom cases elevated to him automatically for review from decisions
of the Commissioner of Customs which are adverse to the Government under Section 2315 of the TCCP (now
Sec. 1128 of the Custom Modernization & Tariff Act of 2016, as amended).
Decisions of the Secretary of Trade and Industry, in the case of non-agricultural product, commodity or article,
and 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 TCCP, and safeguard measures
under R.A. 8800, where either party may appeal the decision to impose or not to impose said duties.
Decisions of the Secretary of Agriculture in the case of agricultural product, commodity or article, involving
dumping and countervailing duties under Secs. 301 and 302, respectively of the TCCP, and safeguard measures
under R.A. 8800, where either party may appeal the decision to impose or not to impose said duties.
EXCLUSIVE ORIGINAL JURISDICTION
Criminal Case/s: Civil Case/s:
Violations of: Tax collection cases involving final and
a. NIRC, executory assessments for taxes, fees,
b. TCCP, charges and penalties where the
c. Other laws administered by BIR and BOC, principal amount of taxes and fees,
…where the principal amount of taxes and fees, exclusive of charges exclusive of charges and penalties
and penalties claimed is P1M and above. claimed is P1M and above.
EXCLUSIVE APPELLATE JURISDICTION
Criminal Case/s: Civil Case/s:
1. Violations of : 1. Tax collection cases from
a. NIRC judgments, resolutions or orders
b. TCCP, of the RTC in tax cases originally
c. Other laws administered by BIR and BOC decided by them.

…originally decided by the regular court where the principal

amount of the taxes is less than P1M or no special amount
claimed.
2. Judgments, resolutions or orders of the RTC in tax cases 2. Tax collection cases from
originally decided by them. judgments, resolutions or orders
3. Judgments, resolutions or orders of the RTC in the exercise of of the RTC in the exercise of its
its appellate jurisdiction over tax cases originally decided by the appellate jurisdiction over tax
MeTC, MTC and MCTC. cases originally decided by the
MeTC, MTC and MCTC.

e

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FLOWCHART – MODE OF APPEAL
Fig 1. Procedure for Assessment
Legend:
-----►
= Discretionary upon the Commissioner on Internal Revenue
,·-·-·-:
•
L--•-•-•
I = Days within receipt of the Notice
*Note: The prescriptive period for “assessment” shall be 10 years from the discovery of none filing or false or
fraudulent return.
/'----
1 1.
2.
An omission or
failure to file
the1~tum
1r there was a
DEf\DLINEOF
SUBM:ISSIONOF TAX
RETURN --- ~
Payment ofT=s
1) BIR
2) Authorized Agent
a. Bank Debit
System
l
1~m fiJecl, it b. Over the
I was l'raudt1lent
LOAANDND
counter
Ct"edit Facilities
t "·
d. Tax Debit Memo
'-----'
r PRELIMCNARY
ASSESSMEl't'ITNOTICE
FILE A REPLY (W/IN

15 Days from Receipt
~ of FAN) -<..
FAJLED TO Fil.EA
REPLY
r FILED A REPLY,
DISAGREES WITH
t
FINDINGS OF DEFICIENCY
DECLARETAXPAYERIN
DEFAULT
FINALASSESSMENTNOTICE
(FAN)/FINAL LETTER OF
DEMAND (FLD)
FILE A PROTEST
PAY/COLLECTION /IN 30 Days from
(\1\1'
OFTAXES Receipt or Fan)
See Fig. 2 for continuation
..,,..,,,.
; _)'
f
__
2022 GOLDEN NOTES
Fig. 2. Protest under the NIRC
FU.1ALASSESSME1N'fNO/f[CE (FAN) & DEMANiD'ifO PAY
!F[LEA PROTiEST
2 Kinds of !Protest:
1. Request for· 1"eccmsideration - 60 d.rys
period NOT npplicahle
2. Request fur l'!!imrestigation - sus;pentls
action of CIR for 60 clays from ft.hug o:f
pt"Ote-st
-----------✓
l'AXPAYERMUSTSUBMR' COMPLETES.ET OF
DOCUMENTS 'fl'i/rN 60 DAYS (Re,qnes for
reinvesti ga,tiou)
CDUS GIVEN :llSO DAYS TO DECmE
TAXPAYER OPTED TI) \\1AJT

PROl'EST' DENJBD INIACTION FO'.R180 DAYS
f'OR ClR'.'s DIE:cJSJON
APPEAL 'ifO CTA DMSJON
MOTmN FOR REOONSIDERATlO OR NiEW11UAl.

MrTH THE CTA DJVIS]ON
I
APPEAL TO CTAEN.BANC
C APPEAL TOSllJ'REMEOOURT .=1

Remedial Law
Fig. 3. Elevation of Disputes to CTA Division, CTA En Banc, and the Supreme Court
TAXDISPUIT
(Disagreem,.nt between the collecting authority/govemm•nt and
the ta.xpayer
l
,,. I
~ r
I
- I
''\ -
I I
r
I
Decision/Inaction Decision of th•

j
Ta.'tcollection Ta.'I'.collection
" Decisions of the
CBAAin the
"
of thl' BIR, BOC, RTCon Prt'ltit. cast's decided by ca,.,, de-cided by faclusive original
exercise of their
DOF,DTI. and DA il:ili1mLocal the RTC in thefr MTCin their jurisdiction of CTA
appellate
on protl'sts and TreaS-1.tre.r
in case exclusive original exdusive original Division
jurisdiction over
cases before th•m of Local 1'a.xos j w-isdiction jurisdiction decisions by LBAA
- I
~ \.. - I
j'" .I \.. .,
'" .I
....
r
Appeal to CTA Divi.sion (Rule42; within 30 days) Appeal to RTCby
Notice of Appeal
l -
"
File MR/MNT (mandatory and jurisdictional)
,.
Appeal to CTA mbane (Rule 43; within 1S days)
Appeal to SC (Rule 4S; within 1S days)
...._
..,,..,,,.
;_. _) 2022 GOLDEN NOTES
Procedure in the Court of Appeals
docketed case is incomplete, necessary measures

VI. PROCEDURE IN THE COURT OF APPEALS shall be taken by the court to complete the same.
However, if the completion of the same cannot be

accomplished due to insuperable or extremely
A. RULE 44 - ORDINARY APPEALED CASES difficult causes, the court, on its own motion or on
motion of any of the parties, may declare that the
record and its accompanying transcripts and
Details of the case from the court of origin exhibits so far available are sufficient to decide the
issues raised in the appeal, and shall issue an order
In all cases appealed to the Court of Appeals under explaining the reasons for such declaration. (Sec. 6,
Rule 41, the title of the case shall remain as it was in Rule 44, ROC, as amended)
the court of origin, but the party appealing the case
shall be referred to as the appellant and the adverse Appellant’s brief
party as the appellee. (Sec. 1, Rule 44, ROC, as
amended) The appellant shall file with the court, within forty-
five (45) days from receipt of the notice of the clerk
The counsel and guardians ad litem of the parties in that all the evidence, oral and documentary, are
the court of origin shall remain as such, and if others attached to the record, seven (7) copies of his legibly
appear or are appointed, notice shall be served typewritten, mimeographed or printed brief, with
immediately on the adverse party and filed with the proof of service of two (2) copies thereof upon the
court. (Sec. 2, Rule 44, ROC, as amended) appellee. (Sec. 7, Rule 55, ROC, as amended)
Procedure of Ordinary Appealed Cases Within twenty (20) days from receipt of the
appellee's brief, the appellant may file a reply brief
Where there are several appellants or appellees, answering points in the appellee's brief not covered
each counsel representing one or more but not all of in his main brief. (Sec. 9, Rule 44, ROC, as amended)
them shall be served with only one copy of the
briefs. When several counsel represent one Contents of the Appellant’s brief
appellant or appellee, copies of the brief may be
served upon any of them. (Sec. 11, Rule 44, ROC, as The following order shall be followed:
amended)
1. A subject index of the matter in the brief with
The original record or the record on appeal should a digest of the arguments and page references,
be transmitted to the Court of Appeals within thirty and a table of cases alphabetically arranged,
(30) days after the perfection of the appeal. If not, a textbooks and statutes cited with references to
motion should be filed with the trial court, with the pages where they are cited;
notice to the other party for the transmittal of such
record or record on appeal. (Sec. 3, Rule 44, ROC, as 2. An assignment of errors intended to be urged,
amended) which errors shall be separately, distinctly and
concisely stated without repetition and
Upon receipt of the record of the appeal and other numbered consecutively;
documents from the trial court, as well as the
payment of the docket fees and other costs, the case 3. Under the heading "Statement of the Case," a
shall be docketed. Any unauthorized alteration, clear and concise statement of the nature of
omission or addition in the approved record on the action, a summary of the proceedings, the
appeal shall be a ground for dismissal of the appeal. appealed rulings and orders of the court, the
(Sec. 4, Rule 44, ROC, as amended) If the record of the nature of the judgment and any other matters

Remedial Law
necessary to an understanding of the nature of textbooks and statutes cited with references to
the controversy with page references to the the pages where they are cited;
record;
2. Under the heading "Statement of Facts," the
4. Under the heading "Statement of Facts," a clear appellee shall state that he accepts the
and concise statement in a narrative form of statement of facts in the appellant's brief, or
the facts admitted by both parties and of those under the heading "Counter-Statement of
in controversy, together with the substance of Facts," he shall point out such insufficiencies or
the proof relating thereto in sufficient detail to inaccuracies as he believes exist in the
make it clearly intelligible, with page appellant's statement of facts with references to
references to the record; the pages of the record in support thereof, but
without repetition of matters in the appellant's
5. A clear and concise statement of the issues of statement of facts; and
fact or law to be submitted, to the court for its
judgment; 3. Under the heading "Argument," the appellee
shall set forth his arguments in the case on each
6. Under the heading "Argument," the appellant's assignment of error with page references to the
arguments on each assignment of error with record. The authorities relied on shall be cited
page references to the record. The authorities by the page of the report at which the case
relied upon shall be cited by the page of the begins and the page of the report on which the
report at which the case begins and the page of citation is found. (Sec. 14, Rule 44, ROC, as
the report on which the citation is found; amended)
7. Under the heading "Relief," a specification of Time of filing memoranda in special cases
the order or judgment which the appellant
seeks; and In certiorari, prohibition, mandamus, quo warranto
and habeas corpus cases, the parties shall file in lieu
8. In cases not brought up by record on appeal, of briefs, their respective memoranda within a non-
the appellant's brief shall contain, as an extendible period of thirty (30) days from receipt of
appendix, a copy of the judgment or final order the notice issued by the clerk that all the evidence,
appealed from. (Sec. 13, Rule 44, ROC, as oral and documentary, is already attached to the
amended) record. The failure of the appellant to file his
memorandum within the period therefor may be a
Appellee’s brief ground for dismissal of the appeal. (Sec. 10, Rule 44,
ROC, as amended)
Within forty-five (45) days from receipt of the
appellant's brief, the appellee shall file with the Extension of time for filing briefs not allowed
court seven (7) copies of his legibly typewritten,
mimeographed or printed brief, with proof of GR: Extension of time for the filing of briefs will not
service of two (2) copies thereof upon the appellant. be allowed.
XPN: good and sufficient cause, and only if the
Contents of Appellee’s brief motion for extension is filed before the expiration of
the time sought to be extended. (Sec. 12, Rule 44,
The following order shall be followed: ROC, as amended)
1. A subject index of the matter in the brief with a

digest of the arguments and page references,
and a table of cases alphabetically arranged,
/'"•,, U N IVE R SIT Y O F SAN T O TO M AS 878

Questions that may be raised on appeal or certified true copy of the judgment, order,
resolution, or ruling with material portions of the
Whether or not the appellant has filed a motion for record as are referred to, and other documents
new trial in the court below he may include in his relevant.
assignment of errors any question of law or fact that
has been raised in the court below and which is The certification shall be accomplished by the clerk
within the issues framed by the parties. (Sec. 13, of court or his duly authorized representative, or by
Rule 44, ROC, as amended) the proper officer of the tribunal, agency or office
involved or his authorized representative. This shall
include a certification against forum shopping,
B. RULE 46 - ORIGINAL CASES otherwise, he must state the same.
The petitioner shall pay the corresponding docket

and other lawful fees to the clerk of court.
Details of the cases
The failure of the petitioner to comply any of the
In all cases originally filed in the Court of Appeals,
requirements shall be sufficient ground for the
the party instituting the action shall be called the
dismissal of the petition. (Sec. 3, Rule 46, ROC, as
petitioner and the opposing party the respondent.
amended)
(Sec. 1, Rule 46, ROC, as amended) Furthermore, this
Rule shall apply to original actions for certiorari,
The court may dismiss the petition outright with
prohibition, mandamus and quo warranto.
specific reasons for such dismissal or require the
respondent to file a comment on the same within
Except as otherwise provided, the actions for
ten (10) days from notice. Only pleadings required
annulment of judgment shall be governed by Rule
by the court shall be allowed. All other pleadings
47, for certiorari, prohibition and mandamus by
and papers may be filed only with leave of court.
Rule 65, and for quo warranto by Rule 66. (Sec. 2,
If it is necessary to resolve factual issues, the court
Procedure for Original Cases with the Court of
itself may conduct hearings thereon or delegate the
Appeals
reception of the evidence on such issue to any of its
members or to an appropriate court, agency or
The petition shall contain the full names and actual
office. (Sec. 6, Rule 46, ROC, as amended)
addresses of all the petitioners and respondents, a
concise statement of the matters involved, the
How jurisdiction over the person of the
factual background of the case, and the grounds
respondent is acquired
relied upon for the relief prayed for.
The court shall acquire jurisdiction over the person
In actions filed under Rule 65, the petition shall
of the respondent by the service on him of its order
further indicate the material dates showing when
or resolution indicating its initial action on the
notice of the judgment or final order or resolution
petition or by his voluntary submission to such
subject thereof was received, when a motion for
jurisdiction. (Sec. 4, Rule 46, ROC, as amended)
new trial or reconsideration, if any, was filed when
notice of the denial thereof was received.
Effect of failure to file comment
It shall be filed in seven (7) clearly legible copies

When no comment is filed by any of the
together with proof of service on the respondent
respondents, the case may be decided on the basis
with the original copy intended for the court
of the record, without prejudice to any disciplinary
indicated by the petitioner and shall be
accompanied by a clearly legible duplicate original

Remedial Law
action which the court may take against the Where applicable
disobedient party. (Sec. 7, Rule 46, ROC, as amended)
Annulment of Judgement shall be limited to:
C. RULE 47 - ANNULMENT OF JUDGEMENTS OR 1. Final Judgements;

FINAL ORDERS AND RESOLUTIONS 2. Orders; and
3. Resolutions of the Regional Trial Court.
NOTE: Rule 47 does not apply to orders that are not

Nature of the action
final, like writs of execution issued on real
properties. (Riano, 2019)
Annulment of a judgment is a remedy in equity
exceptional in character availed of only if other
Who may file the action
remedies are wanting. It is granted provided that
the petitioner has failed to avail himself of the
An action for annulment may be filed by one who
ordinary or other appropriate remedies provided
was not a party to the action from which the
by law without fault on his part. It is never resorted
judgement was assailed. It is a remedy in law
to as a substitute for the petitioner’s or neglect in
independent of the case where the judgement
not availing himself of the ordinary or other
sought to be annulled is promulgated. (Riano, 2019)
appropriate remedies. (Sec. 1, Rule 47, ROC, as
amended; Aquino v. Tangkengko, G.R. No. 197356, 24
Grounds for annulment
Aug. 2016; Riano, 2019)
4. Extrinsic Fraud (Period: Four years from
Purpose
discovery)
5. Lack of jurisdiction (Sec. 2, Rule 47, ROC, as
Annulment of judgement’s purpose is to have the
amended) (Period: before it is barred by laches
final and executory judgement set aside so that
or estoppel, Sec. 3, Rule 47, ROC, as amended)
there is a renewal of litigation. (Yu v. Yu, G.R. No.
6. Denial of due process (Baclaran Marketing
200072, 20 June 2016)
Corp. v. Neiva, G.R. No. 189881, 19 Apr. 2018)
Differences to other actions

Period to File
Annulment of judgement is different from motions

1. Extrinsic Fraud - Four years from discovery
for reconsideration, appeal, or relief from
2. Lack of jurisdiction - before it is barred by
judgement, as those are continuations of the same
laches or estoppel (Sec. 3, Rule 47, ROC, as
case.
amended)
Annulment of judgment is an original action which

Extrinsic Fraud
is separate and distinct and independent of the case
where the judgment sought to be annulled is
As a ground for annulment of judgment, extrinsic
rendered. Regardless of the nature of the original
fraud must arise from an act of the adverse party,
action in the decision sought to be annulled, the
and the fraud must be of such nature as to have
respondent should be duly notified of the petition
deprived the petitioner of its day in court. The fraud
seeking to annul the court’s decision over which the
is not extrinsic if the act was committed by the
respondent has a direct or indirect interest. (Frias v.
petitioner's own counsel.
Alcayde, G.R. No. 194262, 28 Feb. 2018)
Fraud is extrinsic when the unsuccessful party has
been prevented from fully exhibiting his case, by
fraud or deception practiced on him by his

opponent, as by keeping him away from court, a Application of Rule 47

false promise of a compromise; or where the
defendant never had knowledge of the suit, being Although Rule 47 applies to judgements or final
kept in ignorance by the acts of the plaintiff; or orders or resolutions in civil actions from the
where an attorney fraudulently or without Regional Trial Court, (Sec. 1, Rule 47, ROC, as
authority connives at his defeat; these and similar amended) Sections 2, 3, 4, 7, 8, and 9 of this rule shall
cases which show that there has never been a real also apply to annulment of judgements or final
contest in the trial or hearing of the case are reasons orders of a Municipal Trial Court by the Regional
for which a new suit may be sustained to set aside Trial Court having jurisdiction over it, but shall be
and annul the former judgment and open the case treated as an ordinary action. (Sec. 10, Rule 47, ROC,
for a new and fair hearing. (Sibal v. Bouquet, G.R. No. as amended)
197825, 11 Jan. 2016)
Lack of Jurisdiction D. RULE 50 - DISMISSAL OF APPEAL
Lack of jurisdiction as a ground for annulment of

judgement refers to either lack of jurisdiction over
Grounds for Dismissal of Appeal by the Court of
the person of the defending party or over the subject
Appeals:
matter of the claim. Such must be an absolute lack of
authority. Lack of jurisdiction of the subject matter
1. Failure of the record on appeal to show on its
presupposes that the court should not have taken
face that the appeal was taken within the period
cognizance of the complaint because the law or the
fixed by these Rules;
constitution does not vest it with jurisdiction.
(Riano, 2019)
2. Failure to file the notice of appeal or the record
on appeal within the period prescribed by these
Effect of Judgement of Annulment
Rules;
A judgment of annulment shall set aside the
3. Failure of the appellant to pay the docket and
questioned judgment or final order or resolution
other lawful fees as provided in section 5, Rule
and render the same null and void, without
40 and section 4 of Rule 41;
prejudice to the original action being refiled in the
proper court. (Sec. 7, Rule 47, ROC, as amended)
4. Unauthorized alterations, omissions or
additions in the approved record on appeal as
The prescriptive period for the refiling of the
provided in section 4 of Rule 44;
aforesaid original action shall be deemed
suspended from the filing of such original action
5. Failure of the appellant to serve and file the
until the finality of the judgment of annulment.
However, the prescriptive period shall not be
suspended where the extrinsic fraud is attributable
these Rules;
to the plaintiff in the original action. (Sec. 8, Rule 47,
ROC, as amended)
6. Absence of specific assignment of errors in the
appellant's brief, or of page references to the
Where the judgment or final order or resolution is
record as required in section 13, paragraphs
set aside on the ground of extrinsic fraud, the court
(a), (c), (d) and (f) of Rule 44;
may on motion order the trial court to try the case
as if a timely motion for new trial had been granted
7. Failure of the appellant to take the necessary
therein. (Sec. 7, Rule 47, ROC, as amended)
steps for the correction or completion of the
record within the time limited by the court in its
order;

Remedial Law
8. Failure of the appellant to appear at the

preliminary conference under Rule 48 or to E. RULE 51 - JUDGEMENT;
comply with orders, circulars, or directives of HARMLESS ERROR RULE
the court without justifiable cause; and
9. The fact that the order or judgment appealed

When cases shall be deemed submitted for
from is not appealable. (Sec. 1, Rule 50, ROC, as
judgement in ordinary appeals
amended)
1. Where no hearing on the merits of the main

NOTE: The appeal may be dismissed by the Court of
case is held, upon the filing of the last pleading,
Appeal’s own motion or by the appellee.
brief, or memorandum required by the Rules or
by the court itself, or the expiration of the
Dismissal is discretionary
period for its filing; and
2. Where such a hearing is held, upon its
The use of the term “may” indicates that the
termination or upon the filing of the last
dismissal is upon the sound discretion of the Court
pleading or memorandum as may be required
of Appeals. A dismissal of the appeal by failure to file
or permitted to be filed by the court, or the
an appellant’s brief is not mandatory and does not
expiration of the period for its filing. (Sec. 1, Rule
have the immediate effect of causing the outright
dismissal of the appeal. (People v. Diaz, G.R. No.
180677, 18 Feb. 2013; Riano, 2019)
When cases shall be deemed submitted for
judgement in original actions and petitions for
Improper appeal to the Court of Appeals
review
warrants dismissal
1. Where no comment is filed, upon the expiration

An appeal under Rule 41 raising only questions of
of the period to comment;
law, issues purely of law not being reviewable by
2. Where no hearing is held, upon the filing of the
said courts, an appeal by notice of appeal taken from
last pleading required or permitted to be filed
the Regional Trial Court to the Court of Appeals shall
by the court, or the expiration of the period for
be dismissed. This includes erroneously filed
its filing; and,
appeals. (Sec. 2, Rule 50, ROC, as amended)
3. Where a hearing on the merits of the main case
is held, upon its termination or upon the filing
Withdrawal of Appeal
of the last pleading or memorandum as may be
required or permitted to be filed by the court,
The withdrawal of an appeal may be a matter of
or the expiration of the period for its filing.
right or a matter of judicial discretion. Before the
(Ibid.)
filing of the appellee’s brief, the appeal may be
withdrawn as a matter of right. However, once an
appellee’s brief has been filed; withdrawal may be
allowed in the discretion of the court. (CIR v. Nippon
Judgement shall be rendered by the members of the
Express, G.R. No. 212920, 16 Sept. 2015; Riano, 2019)
merits of the case before its assignment to a
member for the writing of the decision. (Sec. 2, Rule
51, ROC, as amended).
All three Justices of a division shall be necessary at

the deliberation and the unanimous vote of the
three Justices shall be required for the
pronouncement of a judgment or final resolution,
and in case of lack of unanimous vote, the Chairman

of the division shall refer the case to the Presiding The harmless error rule obtains during review of the
Justice who shall designate two Justices chosen by things done by either the trial court or by any of the
raffle to sit temporarily, forming a special division parties themselves in the course of trial, and any
of five Justices. The concurrence of a majority of error thereby found does not affect the substantial
such division shall be required for the rights or even the merits of the case. The Court has
pronouncement of a judgment or final resolution. had occasions to apply the rule in the correction of
(Sec. 3, Rule 51, ROC, as amended) a misspelled name due to clerical error; the signing
of the decedents' names in the notice of appeal by
The Court of Appeals, then, may affirm, reverse, or the heirs; the trial court's treatment of the
modify the judgment or final order appealed from, testimony of the party as an adverse witness during
and may direct a new trial or further proceedings if cross-examination by his own counsel; and the
needed. (Sec. 4, Rule 51, ROC, as amended) failure of the trial court to give the plaintiffs the
opportunity to orally argue against a motion. All of
Except where the judgment or final order or the errors extant in the mentioned situations did
resolution, or a portion thereof, is ordered to be not have the effect of altering the dispositions
immediately executory, the motion for its execution rendered by the respective trial courts. (FASAP v.
may only be filed in the proper court after its entry. Philippine Airlines, Inc., G.R. No. 178083, 13 Mar.
2018)
In original actions in the Court of Appeals, its writ of
execution shall be accompanied by a certified true Errors to be considered by the Court of Appeals
copy of the entry of judgment or final resolution and
addressed to any appropriate officer for its GR: The appellate court shall consider no error
enforcement. unless stated in the assignment of errors.
In appealed cases, where the motion for execution XPN:

pending appeal is filed in the Court of Appeals at a 1. It is an error that affects the jurisdiction over
time that it is in possession of the original record or the subject matter;
the record on appeal, the resolution granting such 2. It is an error that affects the validity of the
motion shall be transmitted to the lower court from judgement appealed therefrom;
which the case originated, together with a certified 3. It is an error which affects the validity of the
true copy of the judgment or final order to be proceedings;
executed, with a directive for such court of origin to 4. It is an error closely related to or dependent on
issue the proper writ for its enforcement. (Sec. 11, an assigned error, and properly argued in the
Rule 51, ROC, as amended) brief; and
5. It is a plain and clerical error. (Riano, 2019)
Harmless Error Rule
NOTE: An appellate court has broad discretionary
The Harmless Error Rule under Sec. 6 of Rule 51 powers to waive the proper lack of assignment of
occurs when the trial courts commit errors which errors and to consider errors not assigned to arrive
do not affect the substantial rights of the parties. at a complete and just resolution of the case or to
This do not require the automatic reversal of the serve the interests of justice. (Asian Terminals, Inc.
judgement of the trial court. v. NLRC, G.R. No. 158458, 19 Dec. 2007)
Even if evidence has been improperly admitted by

the trial court, such error may be disregarded on
appeal if the impact is slight and insignificant.
(Riano, 2019)

Remedial Law
F. RULE 53 - NEW TRIAL
Under Section 1 of Rule 53, at any time after the

appeal from the lower court has been perfected, and
before the Court of Appeals loses its jurisdiction
over the case, a party may file a motion for new trial
on the ground of newly discovered evidence. (Sec. 1,
Requisites to admit a newly-discovered

evidence
1. One which could not have been discovered

prior to the trial in the court below even with
the exercise of reasonable diligence; and
2. One of such a character as would probably
change the result. (Ibid.)
NOTE: The motion in itself would be insufficient.

The rule requires that the motion be accompanied
by affidavits showing the facts constituting the
ground so therefore and the newly discovered
evidence. (Ibid.)
Procedure in the New Trial
The motion shall be resolved within 90 days from

the date when the court declares it submitted for
resolution. (Sec. 2, Rule 53, ROC, as amended) The
procedure in the new trial shall be the same as that
granted by the Regional Trial Court. However, the
Court of Appeals may direct otherwise and adopt its
own rules. (Sec. 3, Rule 53, ROC, as amended)
Furthermore, new trials do not apply to the
Supreme Court, as it only applies to the Court of
Appeals. (Sec. 9, Rule 53, ROC, as amended)

Procedure in the Supreme Court
VII. PROCEDURE IN THE SUPREME COURT B. RULE 56-B - APPEALED CASES
Mode of Appeal
A. RULE 56-A - ORIGINAL CASES An appeal to the Supreme Court may be taken only
by a petition for review on certiorari, except in
criminal cases where the penalty imposed is death,
Original cases cognizable with the Supreme reclusion perpetua or life imprisonment. (Sec. 3, Rule
Court 56-B, ROC, as amended)
1. certiorari; Appeals in criminal cases where the penalty

2. prohibition; imposed is death, reclusion perpetua or life
3. mandamus imprisonment, an appeal taken to the Supreme
4. quo warranto Court by notice of appeal shall be dismissed. (Sec. 6,
5. habeas corpus Rule 56-B, ROC, as amended)
6. disciplinary proceedings against members of
the judiciary and attorneys; and An appeal by certiorari taken to the Supreme Court
7. cases affecting ambassadors, other public from the Regional Trial Court submitting issues of
ministers and consuls. (Sec. 1, Rule 65-A, ROC, as fact may be referred to the Court of Appeals for
amended) decision or appropriate action. The determination
of the Supreme Court on whether or not issues of
Rules applicable to Original Cases with the fact are involved shall be final. (Ibid.)
Supreme Court
Procedure in appealed cases with the Supreme
For original petitions on certiorari, prohibition, Court
mandamus, quo warranto, and habeas corpus, the
procedure in original cases shall be in accordance The appeal shall be governed by and disposed of in
with the applicable provisions of the Constitution, accordance with the applicable provisions of the
laws, and all references in said Rules to the Court of Constitution, laws, Rules 45, 48, sections 1, 2, and
Appeals shall be understood to also apply to the Sec. 5 to 11 of Rule 51, 52 and Rule 56-B. (Sec. 4, Rule
Supreme Court, except those dealing strictly with 56-B, ROC, as amended)
and specifically intended for appealed cases in the
Court of Appeals. Grounds for dismissal of appeal
The proceedings for disciplinary action against a. Failure to take the appeal within the
members of the judiciary shall be governed by the reglementary period;
laws and Rules prescribed therefor, and those b. Lack of merit in the petition;
against attorneys by Rules 139-B. (Sec. 2, Rule 56-A, c. Failure to pay the requisite docket fee and other
ROC, as amended) lawful fees or to make a deposit for costs;
d. Failure to comply with the requirements
regarding proof of service and contents of and
the documents which should accompany the
petition;
e. Failure to comply with any circular, directive or
order of the Supreme Court without justifiable
cause;
f. Error in the choice or mode of appeal; and

Remedial Law
g. The fact that the case is not appealable to the

Supreme Court. (Sec. 5, Rule 56-B, ROC, as
amended)
NOTE: This may be dismissed motu proprio by the

Supreme Court or on motion of the respondent.
Divided opinion of the court en banc
Where the court en banc is equally divided in

opinion, or cannot attain the necessary majority the
case shall again be deliberated on, and if no decision
is reached, the original action commenced in the
court shall be dismissed. In appealed cases, the
judgment or order appealed from shall stand
affirmed. On all incidental matters, the petition or
motion shall be denied. (Sec. 7, Rule 56-B, ROC, as
amended)


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FACULTY OF CIVIL LAW (1734)

2022 GOLDEN NOTES

Address: Academics Committee

Tel. No: (02) 8731-4027

Released in the Philippines, 2022.

ACADEMIC YEAR 2021-2022

SARAH ANGELA D. EVA CHAIRPERSON

ATTY. AL CONRAD B. ESPALDON

ACADEMICS COMMITTEE 2022

REMEDIAL LAW COMMITTEE 2022

SOFIA MARIE B. CLARIÑO ASST. HEAD, CIVIL PROCEDURE

JUDGE MYRA B. QUIAMBAO

TAXATION LAW COMMITTEE 2022

THEA ALEXANDRA D. RAMOS ASST. HEAD, PROCEDURE IN TAX CASES

ATTY. JAMIE ANDREA MAE Y. ARLOS-MARTINEZ

FACULTY OF CIVIL LAW

ATTY. ARTHUR B. CAPILI

ATTY. ELGIN MICHAEL C. PEREZ

JUDGE PHILIP A. AGUINALDO

LENY G. GADIANA, R.G.C.

OUR DEEPEST APPRECIATION TO OUR

Justice Roberto A. Abad Judge Myra B. Quiambao

Justice Maria Cristina J. Cornejo† Judge Gidget Rose V. Duque

Justice Maria Filomena D. Singh Judge Leilani Marie D. Grimares

Justice Myra V. Fernandez Dean Lope E. Feble

Justice Oscar C. Herrera, Jr. Dean Ma. Soledad D. Mawis

Justice Amy Lazaro-Javier Dean Carlos M. Ortega

Justice Zenaida G. Laguilles Dean Willard B. Riano†

Justice Carlito B. Calpatura Dean Ferdinand A. Tan

Justice Georgina D. Hidalgo Atty. Irene D.T. Alogoc

Justice Ronald B. Moreno Atty. Ian Jerny E. De Leon

Justice Gabriel T. Robeniol Atty. Gregorio Gerry F. Fernandez

Judge Philip A. Aguinaldo Atty. Benigno G. Par, Jr.

Judge Cesar D. Santamaria, Sr. † Atty. Christian G. Villasis

OUR DEEPEST APPRECIATION TO OUR

Atty. Abelardo T. Domondon

Atty. Noel M. Ortega

Atty. Virginia Jeannie P. Lim

Atty. Prudence Angelita A. Kasala

Atty. Benedicta Du-Baladad

Atty. Rizalina V. Lumbera

Atty. Lean Jeff M. Magsombol

Atty. Kenneth Glenn L. Manuel

Atty. Clarice Angeline V. Questin

THE RISK OF USE OF THIS BAR

FIRST LEVEL COURTS

I. GENERAL PRINCIPLES ......................................................................................................................................... 1

A. SUBSTANTIVE LAW vs. REMEDIAL LAW ........................................................................................1

II. CIVIL PROCEDURE ............................................................................................................................................ 34

A. GENERAL PROVISIONS (RULE 1) ................................................................................................... 34

III. PROVISIONAL REMEDIES ........................................................................................................................... 202

A. NATURE, PURPOSE AND JURISDICTION OVER ....................................................................... 202

IV. SPECIAL CIVIL ACTIONS .............................................................................................................................. 238

A. JURISDICTION AND VENUE ........................................................................................................... 239

V. SPECIAL PROCEEDINGS ................................................................................................................................ 324

A. SETTLEMENT OF ESTATE OF DECEASED PERSONS,

VI. CRIMINAL PROCEDURE ............................................................................................................................... 437

A. GENERAL MATTERS ......................................................................................................................... 437

A. GENERAL CONCEPTS ....................................................................................................................... 579

APPEALLATE PRACTICE, PROCEDURE IN THE COURT OF APPEALS, COURT OF TAX APPEALS,

I. APPEALS; GENERAL PRINCIPLES ................................................................................................................ 723

A. NATURE OF THE RIGHT TO APPEAL .......................................................................................... 723

II. POST – JUDGEMENT REMEDIES OTHER THAN APPEAL .................................................................... 726